The Securities and Exchange Commission (SEC) has proposed some new rule amendments that impact whistleblowers. The changes were announced in late June, 2018, and the public is invited to comment on them until mid-September.
Among the amendments are the following changes:
- Changing current rules regarding the amounts of whistleblower awards
- Creating a uniform definition of a whistleblower
- Improving the claims review process.
While some of the changes may appear minor, others will likely impact future whistleblowers in significant ways.
The Dodd-Frank Act of 2010 added Section 21F to the Securities Exchange Act of 1934, creating the SEC’s whistleblower program. Of note here is that Section 21F authorizes monetary awards for successful SEC enforcement actions whose monetary sanctions total over $1 million. It also specifies that awards must be 10 to 30 percent of the collected monetary sanctions.
Improving Whistleblower Claims Reviews
Two alterations have been proposed to more efficiently process whistleblower award applications. One would streamline the process for denying award applications due to relatively straightforward reasons, such as for applications that do not follow existing rules (not submitted in a timely fashion, not providing claimant information as needed, and so on). The second change would prohibit the submission of whistleblower award applications by those who have tendered false information and allow the banning of individuals who have made more than one frivolous award claim.
Devising a Consistent Whistleblower Definition
This rule change arises from the Digital Realty Trust, Inc. v. Somers Supreme Court decision of early 2018. The new rule would bring current regulations in line with the Court’s decision. Specifically, an individual who seeks protection from retaliation must give the SEC a written report of alleged violations of securities law.
Changing Whistleblower Awards
Three amendments fall under this category. The first one clarifies what “monetary sanctions collected” means and is more technical than we need to delve into here.
The second item would prohibit double recovery, meaning that a whistleblower could not collect under more than one federal whistleblower program for the same information.
The regulatory change most likely to impact deserving whistleblowers is the third item, which is a proposed change in award amounts.
The first part of the proposed change would allow the SEC to adjust an award percentage upward when a whistleblower’s award would total $2 million or less. The adjustment, however, would still be subject to the 30 percent statutory maximum. Some persons believe this change would encourage more whistleblowers to come forward.
The second part of the proposed change would allow the SEC to reduce an award when the potential award could equal or exceed $100 million. The proposed rule would set the minimum award at $30 million, and the award would be subject to the 10 percent statutory minimum. Accordingly, some persons believe this change would encourage fewer people to blow the whistle.
Opposition Within the SEC to Proposed Changes
SEC Commissioner Robert J. Jackson, Jr., has expressed dismay that whistleblower awards could potentially be reduced at will, and that reductions would inject unnecessary uncertainty into the process. He believes that fewer persons would come forward to blow the whistle and has urged citizens to comment on the proposed changes. SEC Commissioner Kara Stein has also expressed concerns that the proposed alterations of Rule 21F are at odds with the statutory language of Dodd-Frank.
If you wish to comment on the proposed rule changes, the SEC web site has instructions on how to do so. The file number is S7-16-18, and comments are due by September 18, 2018.
The Whistleblower Lawyer
If you think you have the facts needed to bring a whistleblower case, the experienced whistleblower attorneys at the Louthian Law Firm can review your case and help you file the appropriate disclosure statement. Under some circumstances, the government will intervene, or join in your lawsuit.
Your chances of succeeding are greater if your whistleblower claim is substantive, clear, and to the point. Because of this, meeting with a qualified whistleblower attorney can increase your chances of winning. The Louthian Law Firm can help you form your claim so that the government will be more inclined to intervene in your case. Sometimes, government intervention can increase the chances of recovering reward money. But even if the government decides not to intervene, it could still be a good idea to pursue your case. If you decide to do so, our strong support system can assist you through every step of the process.
For a free, confidential evaluation of your case, call the Louthian Law Firm today or, if you prefer, use our online contact form.