SEC Speaks 2016: Commission to Pursue Cases Involving Illegal Confidentiality Agreements

Jordan Thomas -

Earlier this month, at the SEC’s annual SEC Speaks conference, leaders of the Commission gathered to address a wide range of topics, including various plans to carry out the rulemaking agenda established under Dodd-Frank and the SEC’s efforts to uncover harmful practices in an increasingly complex market.

Sharon Binger, Director of the SEC’s Philadelphia regional office, addressed the latest developments in the Commission’s Whistleblower and Cooperation Programs. In particular, she cited In the Matter of KBR, Inc, in which case the SEC charged a company for using overly restrictive language in confidentiality agreements to hinder whistleblowers. The agreements, which the company required witnesses in internal investigations to sign, threatened disciplinary action or termination if the employees discussed the matters with outside parties without first gaining approval from KBR’s legal department. In her speech, Ms. Binger stated that she expected the Commission to pursue more of these types of cases, as the SEC continues to support and protect the Whistleblower Program. 
The use of these illegal confidentiality agreements are a clear indication that some employers will take extreme measures to prevent employees from speaking out against misconduct. In a survey of U.S. and UK financial services professionals we conducted last year together with the University of Notre Dame, we were dismayed to find that one in every five respondents believed their company’s confidentiality policies and procedures barred the reporting of potential illegal or unethical activities directly to law enforcement or regulatory authorities. Perhaps even more alarming was that among those earning more than $500,000 a year, approximately one in four respondents said they had signed or had been asked to sign a confidentiality agreement that would prohibit reporting illegal or unethical activities to the authorities.

However, as Ms. Binger made clear, corporations cannot prevent an individual from engaging with his or her government and the whistleblower program has proven a powerful weapon against corruption. In fiscal 2015 the number of whistleblower tips increased by 30% compared to fiscal 2014 and the whistleblower program continues to act as a robust source for SEC investigations. Through their first-hand knowledge, whistleblowers provide early and actionable intelligence of potential wrongdoing to the SEC and help minimize damage to investors and the markets. By empowering, protecting, and incentivizing whistleblowers, the program is a critical tool to ensure fairness and transparency in our financial system. To learn more about the SEC Whistleblower Program, see here.


New Report Offers Insights Into SEC Enforcement

Jordan Thomas -

Last week, Cornerstone Research released a new report, SEC Enforcement Activity Against Public Company Defendants, examining SEC actions initiated between fiscal years 2010 and 2015. Utilizing data from the SEC Enforcement Empirical Database, the report offers some detailed insights into SEC enforcement actions in recent years, such as:

  • The number of enforcement actions continues to increase. In fiscal year 2015, the SEC initiated a record 807 actions, which represented a 7% increase over fiscal 2014, and a 10% increase over the median number of actions for fiscal years 2010 through 2015.
  • Actions against public company defendants resulted in large penalties and disgorgements. Although actions against public company defendants represented an average of 4% of actions from fiscal 2010 through fiscal 2015, these actions accounted for 18% of all SEC monetary penalties and disgorgements during the period. 
  • The SEC has increasingly utilized administrative proceedings. In fiscal 2015, 76% of the SEC’s actions against public company defendants were brought as administrative proceedings. The use of administrative proceedings by the SEC to seek penalties, which was enabled by the passage of Dodd-Frank in 2010, has resulted in more streamlined and more prompt decisions according to the SEC. It is worth noting that the use of administrative proceedings is under attack, with many critics questioning the constitutionality of the proceedings. The resolution of these challenges may negatively impact the number and type of cases that are brought administratively by the SEC.

This report provides evidence of the powerful impact of law enforcement following the passage of Dodd-Frank, highlighting the SEC’s determination to utilize all tools at its disposal in order to prevent corruption and to seek out wrongdoing wherever it occurs.

FINRA Priorities Signal Important Shift in Industry

Jordan Thomas -

Last week, the Financial Industry Regulatory Authority (FINRA) released its regulatory and examination priorities for 2016. FINRA’s letter highlights five areas for examination at brokerage houses and financial advisory firms, including standards of ethical behavior, alignment of firm and customer interests, and the management of conflicts of interest. FINRA’s chairman also stated intentions to specifically examine the conflicts of interest that can arise in the sale of proprietary investment products to clients. These conflicts have garnered increased regulatory scrutiny, including in a recent landmark action where our whistleblower client tipped the SEC to inappropriate client "steering" at JPMorgan. One of the largest actions against an investment adviser, the matter resulted in a $267 million settlement with the SEC and an additional $40 million to the CFTC in a parallel proceeding.

FINRA’s concentration on ethical culture marks an important first step in identifying the nature of corruption within the industry at large. As our recent survey of financial services professionals revealed, the industry has a disregard for ethics and a deep-rooted culture of secrecy. While regulatory oversight has played and will continue to play a critical role in dismantling the status quo, true and sustainable change requires organizations to prioritize and demand integrity—from within and top down.

In developing a new paradigm for corporate ethics, companies need to begin by understanding that traditional reporting methods alone do not work. In a New York Law Journal article, we previously discussed how too many compliance programs are designed to respond to problems after they have surfaced, and focus on the latest reporting trends, rather than proactive, consistent, organization-wide change that puts a premium on transparency and ethical agency.

To be sure, creating such a culture is a substantial undertaking. But in an era of whistleblowers and empowered law enforcement, no organization can bear the cost of noncompliance. As we reported earlier, the Ethics and Compliance Initiative recently examined certain key characteristics that are common to high-quality compliance and ethics programs. These characteristics must be the admission standard for all commercial entities, but particularly those in the financial markets.

In order to truly eradicate corruption, firms must embrace and develop comprehensive and clear ethical visions. We applaud FINRA’s decision to examine corporate culture, and believe it signals an important shift in the financial services industry in recognizing the critical role of ethics in deterring wrongdoing, protecting investors, and building stronger companies.


​SEC’s 2016 Examination Priorities: New Areas of Focus Include Liquidity, Pensions, and ETF’s

Jordan Thomas -

Earlier this week, the SEC’s Office of Compliance Inspections and Examinations (OCIE) released its 2016 examination priorities. The results of OCIE’s examinations of regulated entities are used by the SEC to support rule-making, find and monitor risks, encourage compliance, and prevent and pursue misconduct. Since OCIE also regularly refers matters to the SEC’s Enforcement Division, its priorities are an important and early indicator of the type of cases the Enforcement Division will bring in future years.

This year’s priorities, like those announced in 2015, are organized around three thematic areas:

  • Protecting retail investors, including those saving for retirement
  • Assessing issues related to marketwide risks
  • Utilizing data analytics to identify and examine potential illegal activity

While the general themes of the examinations are carried over from 2015, OCIE’s 2016 priorities include several new areas of focus, including:

  • Liquidity controls: In assessing marketwide risk, the SEC will examine exposure to potentially illiquid securities as well as examine liquidity providers in the market.
  • Public pension advisers: In 2014, the SEC brought its first case under pay-to-play rules for investment advisers, and the current examination priorities call for a focus on pay-to-play and other risk areas related to public pension advisers.
  • Promotion of products: Given the increase of new, complex and high-risk products available in the market, the SEC plans to focus on the promotion of and sales practices related to these products to identify potential suitability and fiduciary obligation issues.
  • Exchange Traded Funds and Variable Annuities: The SEC will examine sales strategies, trading practices, disclosure, and other issues related to these two products.

These new areas of focus encompass some of the most common and critical issues currently facing investors, demonstrating the SEC’s continued commitment to protecting and promoting the healthy and fair operation of our financial markets. To read the complete examination priorities from OCIE, please see here.

The High Price of Secrets

Jordan Thomas -

In a recent piece on the FCPA Blog, I discuss how the SEC Whistleblower Program is revolutionizing the securities industry. The evidence is apparent in recent enforcement actions, such as a landmark case against JPMorgan announced just last month. The action, in which our client tipped the SEC to the misconduct, resulted in a $267 million settlement by two of the bank’s wealth management subsidiaries, admission of wrongdoing, and another $40 million fine paid to the CFTC in a parallel proceeding.

The implications are clear. The SEC Whistleblower Program is working, as we knew it would, encouraging the good guys to come forward and making serious headway against those who would commit fraud and try to hide wrongdoing. In fiscal 2015, the SEC received a record number of whistleblower tips — nearly 4,000 — and with high-value enforcement actions and whistleblower awards announced with more and more frequency, the whistleblower revolution is here, at long last.

The Crucial Work Ahead: Building Ethical Corporate Cultures

Jordan Thomas -

In our ongoing work to protect individual whistleblowers and bring wrongdoing to light, we never lose sight of our fundamental goal: to help establish a culture in which corporations no longer retaliate against those who raise concerns about misconduct.

I was reminded of the importance of communicating this goal while serving as a panelist at the Thomson Reuters 4th Annual Corporate Whistleblowing Forum last Fall. In a recent article highlighting our session, the author noted that whistleblower lawsuits are bringing hard truths to light about the weakness of existing compliance programs. As I noted on the panel, building a culture of strong ethics begins with establishing consistent communication and support to employees who raise concerns. As we gain greater understanding of the challenges faced by whistleblowers, most of whom report wrongdoing internally first, companies have a responsibility, as well as an opportunity, to create corporate cultures in which compliance and ethics are integral to operations.

Protecting whistleblowers is not only about catching bad actors, but also about revolutionizing the way in which we view corporate ethics. As recent history has taught us, corporate misconduct can do more than alter the basic bottom line—it can lead to devastating consequences for individuals, companies, and society at large.

Labaton Sucharow Whistleblower Tips SEC in Groundbreaking Enforcement Action

Jordan Thomas -

Today, the SEC announced that two J.P. Morgan wealth management subsidiaries agreed to pay $267 million to settle charges in an enforcement action initiated by information brought to the SEC by a Labaton Sucharow client, a J.P. Morgan executive. The enforcement is one of the largest and highest profile actions initiated by an SEC whistleblower since the establishment of the program.

The SEC’s investigation uncovered that J.P. Morgan’s investment advisory business and its nationally chartered bank were steering clients to more expensive in-house investments without proper disclosures of conflicts of interests. The troubling actions in this case occurred over several years, and deprived JPMorgan's clients of necessary information to make informed investment decisions.

This case powerfully demonstrates the vast potential of the SEC Whistleblower Program to find and eradicate wrongdoing early and often. Because of the unique protections and incentives of the program, our client chose to report the securities violations at J.P. Morgan to the SEC. In doing so, the individual was able to protect J.P. Morgan clients and improve the sales culture of the organization, while avoiding retaliation and blacklisting.

And as awareness of the SEC Whistleblower Program grows, so does the likelihood that more individuals will step forward to reveal violations. The program’s broad international reach and ability to report anonymously provide enormous opportunities to uncover misconduct wherever it occurs. In designing this innovative program, the SEC understood that employees represent a critical first line of defense against wrongdoing. To learn more about the SEC Whistleblower Program, please see here.

Strong E&C Programs: New Report Examines Key Characteristics

Jordan Thomas -

Working at the forefront of whistleblower advocacy, we have previously discussed the numerous ways companies hinder or actively retaliate against individuals who choose to bring corporate misconduct to light. In fact, according to the Ethics and Compliance Initiative’s National Business Ethics Survey, more than 1 in 5 respondents said they experienced retaliation after reporting internally. We also continue to witness companies developing new and sophisticated strategies to discourage employees from reporting possible violations.

To be sure, though, the majority of companies want to behave ethically, and are potentially stymied by antiquated internal policies or a lack of guidance regarding appropriate and effective compliance measures.

As part of its continued dedication to improving the current state of corporate ethics, last week the ECI released a new report which examines key characteristics of high-quality compliance and ethics programs. According to the report, common practices of organizations with strong ethics and compliance cultures include:

  • Creating an environment in which employees are encouraged and able to speak up. Management in such organizations not only offers ample opportunity for employees to voice concerns, but also takes retaliation seriously through actively engaged HR, legal and compliance departments.
  • Acting quickly and maintaining accountability when misconduct occurs. These organizations develop a plan of action in which suspicions are thoroughly investigated, and confirmed misconduct leads to consistent consequences, regardless of the employee’s position.

  • Treating compliance programs as central to business strategy. Misconduct poses dire business risks. As a result, an organization that is serious about ethics will ensure that the compliance department is not only responsible for meeting legal requirements, but also works to help management understand and establish integrity to benefit the organization’s overall mission.

It is apparent that companies must demonstrate greater leadership in building ethical cultures, and we applaud the focus and continued work by the ECI to help advance this goal. In our ongoing effort to root out misconduct in the workplace, the ECI’s report provides a solid foundation of principles and practices on which we can continue to build.

​Choosing to Act: Paths for Potential Whistleblowers

Jordan Thomas -

Among the many exciting trends examined in the recent annual report of the SEC Office of the Whistleblower, I was particularly impressed by the substantial growth in the number of tips received by the Commission. The nearly 4,000 tips—a record—not only illustrates growing public awareness of the program, but also demonstrates public action. Simply, a startling and increasing number of individuals are coming forward to stop corruption in the workplace. We are living in the age of the whistleblower, because so many courageous individuals take on this responsibility as law enforcement’s first line of defense against wrongdoing.

Thinking about this topic, I was reminded of an interview I gave to Chief Investment Officer for an informative article, If You See Something, Say Something: A Whistleblowing Choose Your Own Adventure. In addition to referencing our recent landmark study of the financial services industry, the article cleverly lays out various options available to whistleblowers. As the article makes clear, fraud persists, and the question of how and when to blow the whistle is an extraordinarily complex one. If you are interested in reading more about key considerations for potential whistleblowers, click here.

Five Tips for Potential Corporate Whistleblowers

Jordan Thomas -

In a recent piece in The New York Times, I discuss some of the key considerations for SEC whistleblowers including when, how and what to report, and how to navigate the high pressure environment of the whistleblower’s workplace. To read the full article, see here.