The SEC announced today that it would
award between $5 million and $6 million to a whistleblower whose detailed information led the SEC to uncover securities violations which would have
been “nearly impossible to detect” without the company insider’s help. The award is the third highest ever granted under the SEC whistleblower program
since the program’s inception in 2011, and closely follows another whistleblower award of over $3.5 million granted last week.
Today’s award epitomizes the specific strengths of the SEC Whistleblower Program—strengths which are inherent in the program’s very design. Following
the financial crisis, I was fortunate to have a leadership role in the development of the SEC Whistleblower Program, and my colleagues and I understood
the necessity of empowering insiders who had first-hand, detailed, and actionable intelligence. As this case illustrates, given the vast scope and
complexity of our financial markets, products and transactions, corporate wrongdoing can be difficult to detect, investigate, and prosecute without assistance
As we wrote previously regarding last week’s award, the crucial value of insider intelligence is not to be underestimated. Neither
financial services professionals nor the industry are fundamentally unethical, but the culture within the financial services industry has led too many
otherwise ethical people to feel powerless against illegal or unethical behavior. Through the SEC whistleblower program, the government has effectively
deputized every insider, and empowered them to act. As we are witnessing, because of the program’s significant protections and incentives, truth-tellers
are coming forward in larger and larger numbers and fraudsters are finding it very difficult to hide. If you are interested in learning more about
the SEC whistleblower program, see here.
Last Friday, the SEC announced it had granted a $3.5 million whistleblower award to an individual who provided additional information that supported an ongoing SEC investigation.
The award, one of the largest granted to a single whistleblower in 2016, involves a unique set of circumstances and highlights the potential impact
of whistleblowers who come forward with information, even when an investigation is already underway.
According to a final order released on
Friday, the whistleblower’s award application was initially denied in January. The whistleblower had submitted a tip through counsel, but the application
was denied because the information did not lead to the initiation of an investigation or cause the SEC to inquire into new conduct. However, the whistleblower
appealed under a rule which states that whistleblowers may receive a reward if the information “significantly contributes” to the success of an investigation.
Upon reconsideration, the SEC determined that the whistleblower did meet this criteria.
In fact, according to Andrew Ceresney, Director of the SEC’s Enforcement Division, “Whistleblowers can receive an award not only when their tip initiates
an investigation, but also when they provide new information or documentation that advances an existing inquiry. This particular whistleblower’s tip
substantially strengthened our ongoing case and increased our leverage during settlement negotiations with the company.” The SEC also stated that it
considered “certain unique hardships experienced” by the whistleblower, such as being “unable to find employment since reporting the misconduct.” The
final order was redacted to protect the whistleblower’s identity.
This award highlights a number of important issues for whistleblowers. First, it demonstrates the challenge and complexity of filing a successful whistleblower
claim. In addition to complicated legal and procedural issues, individuals must manage numerous personal and professional risks. By filing with counsel,
this whistleblower was able to maintain anonymity and ultimately articulate a successful argument for an award through the appeals process. This award
also demonstrates that the SEC takes retaliation seriously. In considering the whistleblower’s difficulties in finding new employment, the SEC not
only weighed the retaliation the whistleblower faced from his/her company, but also blacklisting from the greater financial services industry.
And while the whistleblower process is complex, this case also illustrates a simple, but critical point: never underestimate the value of actionable intelligence, especially from insiders. During my long tenure at the SEC, I witnessed first-hand the powerful impact that seemingly simple intelligence from insiders could have on a case.
In issuing this award for providing supporting information, the SEC has empowered individuals to come forward – even in ongoing investigations – and
has demonstrated the huge financial benefits of doing so.