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The Tenth Circuit is the first Circuit Court to address the scope of the SEC’s extraterritorial enforcement authority under the Dodd-Frank Act. The opinion highlights the SEC’s expansive international reach against fraudsters. For additional analysis of the Tenth Circuit’s opinion, see a recent article in the Harvard Law School Forum on Corporate Governance and Financial Regulation, [https://corpgov.law.harvard.edu/2019/06/09/a-new-era-of-extraterritorial-sec-enforcement-actions/ A New Era of Extraterritorial SEC Enforcement Actions]. In November 2019, the U.S. Supreme Court [https://news.bloomberglaw.com/securities-law/high-court-denies-review-in-sec-fraud-extraterritoriality-case declined to review the case]. | The Tenth Circuit is the first Circuit Court to address the scope of the SEC’s extraterritorial enforcement authority under the Dodd-Frank Act. The opinion highlights the SEC’s expansive international reach against fraudsters. For additional analysis of the Tenth Circuit’s opinion, see a recent article in the Harvard Law School Forum on Corporate Governance and Financial Regulation, [https://corpgov.law.harvard.edu/2019/06/09/a-new-era-of-extraterritorial-sec-enforcement-actions/ A New Era of Extraterritorial SEC Enforcement Actions]. In November 2019, the U.S. Supreme Court [https://news.bloomberglaw.com/securities-law/high-court-denies-review-in-sec-fraud-extraterritoriality-case declined to review the case]. | ||
== CFTC Whistleblower Program == | |||
='''Overview'''= | |||
'''The CFTC Whistleblower Reward Program provides whistleblowers with a strong monetary incentive, as well as anti-retaliation protections, for reporting wrongdoing to the CFTC'''. This includes violations or fraud in connection with: | |||
*Commodity futures | |||
*Commodity options | |||
*[https://www.zuckermanlaw.com/swap-reporting-cftc-whistleblower-lawyers/ Swap trading markets] | |||
*Derivatives | |||
*[https://www.whistleblower.gov/sites/whistleblower/files/2019-06/FCPA%20WBO%20Alert.pdf Foreign corrupt practices] | |||
Approximately 65% of whistleblower cases filed at the CFTC involved charges of commodities fraud, [https://www.zuckermanlaw.com/rewards-and-bounties-for-whistleblowers/market-manipulation-whistleblower-lawyers/ market manipulation schemes] and spoofing. Whistleblower tips to CFTC have helped [https://www.zuckermanlaw.com/cftc_whistleblower_rewards_attorneys/ drive record-level enforcement activity.] | |||
Since 2014, the CFTC has issued more than [https://www.whistleblower.gov/ $120 million in awards] to whistleblowers. The [https://www.zuckermanlaw.com/sp_faq/largest-cftc-whistleblower-awards/ largest CFTC whistleblower awards] to date are $45 million, $30 million, and $10 million. Whistleblower disclosures have enabled the CFTC to recover nearly $1 billion. | |||
Under the CFTC Whistleblower Reward Program, the CFTC will issue rewards to whistleblowers who provide original information that leads to CFTC enforcement actions with total civil penalties in excess of $1 million (see [https://www.cftc.gov/PressRoom/PressReleases/8165-20 how the CFTC calculates monetary sanctions]). A whistleblower may receive an award of between 10% and 30% of the total monetary sanctions collected. | |||
Original information “leads to” a successful enforcement action if either: | |||
#The original information caused the staff to open an investigation, reopen an investigation, or inquire into different conduct as part of a current investigation, and the Commission brought a successful action based in whole or in part on conduct that was the subject of the original information; or | |||
#The conduct was already under examination or investigation, and the original information significantly contributed to the success of the action. | |||
In determining a reward percentage, the CFTC considers the particular facts and circumstances of each case. For example, positive factors may include the significance of the information, the level of assistance provided by the whistleblower and the whistleblower’s attorney, and the law enforcement interests at stake. | |||
Whistleblowers may still be eligible for a reward under the CFTC Whistleblower Reward Program even if they have already received a reward under the [https://www.zuckermanlaw.com/sec-whistleblower-lawyers/ SEC Whistleblower Reward Program.] | |||
='''Violations that Qualify for a CFTC Whistleblower Award'''= | |||
The largest CFTC whistleblower awards to date are $200 million, $45 million, and $30 million. The main types of violations that may qualify for a CFTC whistleblower award include spoofing, corrupt practices, trading on material nonpublic information, and benchmark rates manipulation. | |||
=='''Spoofing'''== | |||
Spoofing is a form of [https://www.zuckermanlaw.com/rewards-and-bounties-for-whistleblowers/market-manipulation-whistleblower-lawyers/ market manipulation] where traders artificially inflate the supply and demand of an asset to increase profits. Traders engaged in spoofing typically place a large number of orders to buy or sell a certain stock or asset without the intent to follow through on the orders. This deceptive trading practice leads other market participants to wrongly believe that there is pressure to act on that asset and “spoofs” other participants to place orders at artificially altered prices. | |||
Spoofing affects prices because the artificial increase in activity on either the buy or sell side of an asset creates the perception that there is a shift in the number of investors wanting to buy or sell. Spoofers place false bids or offers with the intent to cancel before executing so that they can then follow-through on genuine orders at a more favorable price. Often, spoofers use automated trading and algorithms to achieve their goals. According to a [https://www.whistleblower.gov/whistleblower-alerts/Spoofing_WBO_Alert.htm CFTC alert] on spoofing related to CEA violations, the CFTC is concerned with conduct such as: | |||
*manual and automated trading schemes that place and quickly cancel bids and offers in futures contracts in order to benefit other orders and/or positions; | |||
*orders being quickly placed and canceled at or near the best bid or offer, especially if opposite-side orders are filled; | |||
*multiple orders of the same size repeatedly and simultaneously being placed and canceled; and | |||
*any scheme designed to cause prices to artificially move. | |||
Examples of CFTC spoofing enforcement actions include: | |||
*In November 2019, the CFTC imposed [https://www.cftc.gov/PressRoom/PressReleases/8074-19 '''$67.4 million in sanctions against Tower Research Capital LLC'''], a proprietary trading firm, arising from a manipulative and deceptive scheme. On thousands of occasions, three former Tower traders, placed orders to buy or sell futures contracts with the intent to cancel those orders prior to execution. The traders often used an order splitter to enter several smaller, randomly-sized orders in an attempt to obscure their scheme from other market participants. According to a [https://www.cftc.gov/PressRoom/PressReleases/8074-19 CFTC press release], “[t]he traders engaged in this scheme to induce other market participants to trade against their genuine orders—by intentionally sending a false signal to the market that they wanted to buy or sell the number of contracts specified in the spoof orders and creating a false impression of supply or demand—so that the genuine orders would fill sooner, at better prices, or in larger quantities than they otherwise would.” | |||
*In August 2021, a federal jury convicted Edward Bases and John Pacilio, two former Merrill Lynch traders, for engaging in a multi-year fraud scheme to manipulate the precious metals market. According to a [https://www.justice.gov/opa/pr/jury-convicts-two-former-wall-street-bank-traders-wire-fraud-0 press release] announcing the action, the two traders fraudulently pushed market prices up or down by routinely placing large “spoof” orders in the precious metals futures markets that they did not intend to fill. After manipulating the market, Bases and Pacilio executed trades at favorable prices for their own gain, and to the detriment of other traders. The DOJ’s [https://www.justice.gov/criminal-vns/page/file/1088666/download indictment] detailed how Bases and Pacilio discussed their intent to “push” the market through spoofing in electronic chat conversations. | |||
*In September 2020, JPMorgan Chase & Co. agreed to pay disgorgement of $920 million in parallel actions brought by the CFTC, DOJ, and the SEC engaging in manipulative trading of U.S. Treasury securities. According to the SEC’s [https://www.sec.gov/litigation/admin/2020/33-10858.pdf order], certain traders on J.P. Morgan Securities’ Treasuries trading desk placed genuine orders to buy or sell a particular Treasury security, while nearly simultaneously placing spoofing orders, which the traders did not intend to execute, for the same series of Treasury security on the opposite side of the market. The spoofing orders were intended to create a false appearance of buy or sell interest, which would induce other market participants to trade against the genuine orders at prices that were more favorable to J.P. Morgan Securities than J.P. Morgan Securities otherwise would have been able to obtain. | |||
=='''Corrupt Practices'''== | |||
Although the SEC and DOJ are responsible for enforcing the FCPA, the CFTC can take enforcement actions to combat violations of the CEA connected to corrupt practices, including bribes or kickbacks paid to improperly influence government officials in connection with regulated activities such as trading, advising, or dealing in swaps or derivatives. As explained in a March 6, 2019 [https://www.cftc.gov/sites/default/files/2019-03/enfadvisoryselfreporting030619.pdf CFTC Enforcement Advisory] and [https://www.cftc.gov/PressRoom/SpeechesTestimony/opamcdonald2 public remarks by Director of Enforcement James M. McDonald] at the ABA’s National Institute on White Collar Crime, the CFTC’s anti-fraud authority permits it to police foreign bribes where violations of the CEA carried out through foreign corrupt practices. McDonald explained: ''Companies and individuals engaging in foreign corrupt practices should recognize that this sort of misconduct might constitute fraud, manipulation, false reporting, or a number of other types of violations under the CEA, and thus be subject to enforcement actions brought by the CFTC. Bribes might be employed, for example, to secure business in connection with regulated activities like trading, advising, or dealing in swaps or derivatives. Corrupt practices might be used to manipulate benchmarks that serve as the basis for related derivatives contracts. Prices that are the product of corruption might be falsely reported to benchmarks. Or corrupt practices in any number of forms might alter the prices in commodity markets that drive U.S. derivatives prices. We currently have open investigations involving similar conduct.'' | |||
In December 2020, the CFTC exercised that authority by imposing a [https://www.cftc.gov/PressRoom/PressReleases/8326-20 $95 million civil penalty] to settle charges against Vitol Inc, for manipulative and deceptive conduct involving foreign corruption and physical and derivatives trading in the U.S. and global oil market. The CFTC found that “Vitol committed fraud by making corrupt payments (e.g., bribes and kickbacks) to employees and agents of certain state-owned entities (SOEs) in Brazil, Ecuador, and Mexico to obtain preferential treatment and access to trades with the SOEs to the detriment of the SOEs and other market participants.” The corrupt payments were concealed by funneling them through offshore bank accounts or to shell entities, and at times, issuing deceptive invoices for purported “market intelligence” or “sell support.” The objective of these illicit payments was to secure unlawful competitive advantages in trading physical oil products and derivatives. | |||
=='''Trading on Material Nonpublic Information'''== | |||
The Dodd-Frank Act expanded the CFTC’s authority to police misappropriation of confidential information and insider trading in commodities markets. Similar to the SEC’s Rule 10b-5, CFTC Rule 180.1 prohibits manipulative and deceptive devices, i.e., fraud and fraud-based manipulative devices and contrivances employed intentionally or recklessly, regardless of whether the conduct in question was intended to create or did create an artificial price. | |||
The fraud or manipulation must be in connection with any swap, or contract of sale of any commodity in interstate commerce, or contract for future delivery on or subject to the rules of any registered entity. Examples of prohibited trading include: | |||
*trading on material nonpublic information (MNPI) that was obtained by fraud or deception; | |||
*trading on market-moving information that the source had a duty to protect; | |||
*brokers front running customer orders or taking the other side of any customer order without consent; and | |||
*improperly disclosing MNPI or using MNPI provided by a counterparty without the counterparty’s consent. | |||
An example of the CFTC enforcing its prohibition against the misappropriation of MNPI is a September 29, 2016 enforcement taken against Jon P. Ruggles for engaging in fraudulent, fictitious, and non-competitive trades in crude oil and heating oil futures and options and RBOB gasoline futures on the NYMEX. The [https://www.cftc.gov/PressRoom/PressReleases/7459-16 CFTC’s order settling the charges] requires Ruggles to disgorge ill-gotten gains totaling $3,501,306, imposes a civil monetary penalty of $1.75 million, and permanently bans him from trading and registering with the CFTC. Ruggles, who was responsible for developing his former employer’s fuel hedging strategies and for executing the employer’s trades in certain NYMEX products, misappropriated the employer’s trading information for his own benefit in personal accounts that he controlled. | |||
=='''Benchmark Rates Manipulation'''== | |||
In a benchmark-rate-manipulation scheme, individuals seek to increase or decrease impartial global reference rates for their own financial gain. This misconduct is typically associated with the U.S. Dollar International Swaps and Derivatives Association Fix (USD ISDAFIX), benchmark-swap rates, LIBOR, Euribor, and other foreign interest-rate benchmarks. | |||
On May 25, 2016, the CFTC ordered [https://www.cftc.gov/PressRoom/PressReleases/7371-16 Citibank to pay $250 million] for attempted manipulation and false reporting of USD ISDAFIX benchmark-swap rates. According to a CFTC [https://www.cftc.gov/PressRoom/PressReleases/7371-16 press release], Citibank traders “attempted to manipulate and made false reports concerning the USD ISDAFIX by skewing the Bank’s USD ISDAFIX submissions . . . in order to benefit the Bank’s trading positions at the expense of its derivatives counterparties.” The CFTC uncovered [https://www.cftc.gov/sites/default/files/idc/groups/public/@newsroom/documents/file/citibankmisconduct052516.pdf numerous instances] of Citibank’s USD ISDAFIX misconduct through the bank’s exotic traders’ instant messages. In March 2008, one of Citibank’s exotics traders stated in separate instant messages to other market participants that “[I] moved the screen btw” and “[I] moved the screen to 183 on 2s10s…[One of Citibank’s swaps traders] is pretty good at it,” and “[I] push the 2s10s swap on the screen to 183.4, very proud of myself.” | |||
='''Whistleblowers Will Continue to Drive Increased CFTC Enforcement Activity'''= | |||
The FY20 reports of the [https://www.whistleblower.gov/sites/whistleblower/files/2020-11/FY20%20Report%20to%20Congress.pdf CFTC Whistleblower Program] and [https://www.cftc.gov/PressRoom/PressReleases/8323-20 CFTC Division of Enforcement] reveal that the CFTC Whistleblower Program continues to grow and is helping to drive record-level enforcement activity. The Division of Enforcement reported a total of $1,327,869,760 in monetary relief ordered—the fourth-highest total in CFTC history, the third straight year-over-year increase, and the second straight year in excess of $1 billion. Approximately 30 to 40% of the CFTC’s ongoing investigations now involve some whistleblower component. Since the inception of the [https://www.zuckermanlaw.com/cftc-whistleblower-reward-lawyers/ CFTC Whistleblower Program], CFTC enforcement actions associated with whistleblower awards have resulted in sanctions orders totaling more than $3 billion. In light of the CFTC’s recent whistleblower award of [https://www.zuckermanlaw.com/cftc-shows-whistleblowers-the-money-implications-of-record-200-million-award/ $200 million], whistleblowers will continue to play a pivotal role in enabling the CFTC to carry out its vital enforcement mission. | |||
='''Anonymous Whistleblowing to the CFTC'''= | |||
If [https://www.zuckermanlaw.com/how-best-sec-whistleblower-law-firms-advocate-sec-whistleblowers/ represented by counsel], a whistleblower may submit a tip anonymously to the CFTC. In certain circumstances, a whistleblower may remain anonymous, even to the CFTC, until an award determination. However, even at the time of a reward, a whistleblower’s identity is not made available to the public. | |||
According to a recent report of the CFTC Whistleblower Office, the Office takes steps to protect whistleblower confidentiality. For example, in 2017 the Office considered 267 requests to produce documents from the investigation and litigation files of the Enforcement Division and found 16 requests to implicate whistleblower-identifying information. The Office worked with the Enforcement Division to remove whistleblower-identifying information or otherwise take steps to preserve whistleblower confidentiality. | |||
='''CFTC Whistleblower Awards'''= | |||
The table below identifies some of the largest CFTC whistleblowers awards: | |||
{| class="wikitable" | |||
|- | |||
|'''Whistleblower Award''' | |||
|'''Date''' | |||
|'''Basis for Whistleblower Award''' | |||
|- | |||
|[https://www.cftc.gov/PressRoom/PressReleases/7767-18 $45 million] | |||
|August 2, 2018 | |||
|On August 2, 2018, the CFTC announced a $45 million award to multiple whistleblowers. [https://markets.businessinsider.com/news/stocks/whistleblower-gets-largest-ever-cftc-award-for-exposing-the-isdafix-scandal-garson-segal-steinmetz-fladgate-llp-1027435727 Reports] indicate the award was related to ISDAFIX manipulation enforcement actions. | |||
|- | |||
|[https://www.cftc.gov/PressRoom/PressReleases/7753-18 $30 million] | |||
|July 12, 2018 | |||
|On July 12, 2018, the CFTC announced its largest-ever whistleblower award given to an individual. The whistleblower exposed that [https://www.sec.gov/news/pressrelease/2015-283.html JP Morgan] did not properly disclose conflicts of interests to clients. Find the order [https://www.whistleblower.gov/sites/whistleblower/files/Final%20Orders/16-WB-08.pdf here]. | |||
|- | |||
|[https://www.cftc.gov/PressRoom/PressReleases/7351-16 $10 million] | |||
|March 28, 2016 | |||
|On April 4, 2016, the CFTC announced a $10 million award given to an individual. The whistleblower provided “valuable information” regarding violations of the Commodity Exchange Act. Find the order [https://www.whistleblower.gov/sites/whistleblower/files/Final%20Orders/16-WB-06.pdf here]. | |||
|- | |||
|[https://www.cftc.gov/PressRoom/PressReleases/8022-19 $7 million] | |||
|September 27, 2019 | |||
|On September 27, 2019, the CFTC issued a $7 million award to a whistleblower. CFTC Director of Enforcement James McDonald stated in the Press Release: “Forty percent of our investigations now involve whistleblowers. We expect that number to increase as the CFTC continues to expand its whistleblower program.” Find the order [https://www.whistleblower.gov/sites/whistleblower/files/2019-09/19-WB-05.pdf here]. | |||
|- | |||
|[https://www.cftc.gov/PressRoom/PressReleases/8175-20 $6 million] | |||
|June 9, 2020 | |||
|On June 9, 2020, the CFTC issued a $6 million award to a whistleblower who voluntarily provided original information that led the CFTC to bring a successful enforcement action. According to the Press Release announcing the award, the CFTC opened its investigation upon receiving the whistleblower’s information, which was specific, credible and timely. | |||
|- | |||
|[https://www.cftc.gov/PressRoom/PressReleases/7943-19 $2.5 million] | |||
|June 24, 2019 | |||
|On July 24, 2019, the CFTC issued a $2.5 million CFTC whistleblower award to an individual. The award was reduced because of the whistleblower’s delay in reporting. Director McDonald said the delay was “unreasonable” and the whistleblower could have received a larger award had this person not waited. Find the order [https://www.whistleblower.gov/sites/whistleblower/files/2019-06/19-WB-03.pdf here]. | |||
|- | |||
|[https://www.cftc.gov/PressRoom/PressReleases/7953-19 $2 million] | |||
|July 1, 2019 | |||
|On July 1, 2019, the CFTC issued a $2 million CFTC whistleblower award to two whistleblowers. The whistleblowers provided multiple interviews and documents that were “highly informative” and provided the agency “with significant information” that prompted the CFTC to open an investigation. The whistleblowers also reported the violations to another organization that conducted a separate investigation and shared its findings with the CFTC. Find the order [https://www.whistleblower.gov/sites/whistleblower/files/2019-07/19-WB-04.pdf here]. | |||
|- | |||
|[https://www.cftc.gov/PressRoom/PressReleases/7882-19 $2 million] | |||
|March 4, 2019 | |||
|On March 4, 2019, the CFTC announced an award of over $2 million to a whistleblower. The whistleblower conducted an "independent analysis" of market data, which aided greatly in the CFTC’s investigation. The whistleblower was not an insider. The order is [https://www.whistleblower.gov/sites/whistleblower/files/2019-03/19-WB-01%20-%20Public%20Version.pdf here]. | |||
|- | |||
|[https://www.cftc.gov/PressRoom/PressReleases/7924-19 $1.5 million] | |||
|May 6, 2019 | |||
|On May 6, 2019, the CFTC announced a $1.5 million award to a whistleblower who tried to report it internally first. The CFTC granted the reward to the whistleblower for both a CFTC action and a related action brought by another federal regulator. Find the order [https://www.whistleblower.gov/sites/whistleblower/files/2019-05/19-WB-02%20-%20Public%20Version.pdf here]. | |||
|- | |||
|[https://www.cftc.gov/PressRoom/PressReleases/7882-19 $290,000] | |||
|September 29, 2015 | |||
|On September 29, 2015, the CFTC announced an award of $290,000 to a whistleblower. Two applicants applied for the award, but the CFTC only awarded one of the whistleblowers because the “the information provided by the second applicant did not lead to a successful enforcement . . . action.” | |||
|- | |||
|[https://www.cftc.gov/PressRoom/PressReleases/7767-18 $240,000] | |||
|May 20, 2014 | |||
|On May 20, 2014, the CFTC announced its first-ever whistleblower award of $240,000. The then-acting director of the CFTC reported that the whistleblower provided “specific, timely and credible information” that led to a successful investigation. | |||
|- | |||
|} | |||
='''Protections Against Whistleblower Retaliation'''= | |||
Whistleblowers are also afforded substantial protection against retaliation. Specifically, '''an employer may not “discharge, demote, suspend, threaten, harass, directly or indirectly, or in any manner discriminates against, a whistleblower” for legally reporting wrongdoing.''' In the event that an employer retaliates against a whistleblower, the law provides for substantial relief. This may include reinstatement, back pay, and compensation for related expenses such as litigation costs and reasonable attorneys’ fees. | |||
A whistleblower is entitled to this protection even if they do not receive a reward. The anti-retaliation provision applies to any whistleblower who possesses “a reasonable belief that the information the whistleblower is providing relates to a possible violation of the Commodity Exchange Act (CEA), or the rules or regulations thereunder, that has occurred, is ongoing, or is about to occur.” | |||
The CFTC can take enforcement action against an employer that “retaliates against a whistleblower by discharge, demotion, suspension, direct or indirect threats or harassment, or any other manner of discrimination” because the whistleblower provided “information to the Commission after reporting the information through internal whistleblower, legal or compliance procedures.” 17 C.F.R. 165.20(b). | |||
=='''Acts of Retaliation are Prohibited by the CFTC Whistleblower Protection Law'''== | |||
The CEA prohibits an employer from discharging, demoting, suspending, threatening or harassing, or in any other manner discriminating against, a whistleblower in the terms and conditions of employment because of any protected whistleblowing. | |||
=='''The Burden to Prevail in a CFTC Whistleblower Retaliation Claim'''== | |||
To prevail, a whistleblower must prove “but-for” causation, which is not tantamount to “sole factor” causation. In Bostock v. Clayton Cty., the Supreme Court clarified the burden of proving “but for” causation: | |||
Title VII’s ‘because of’ test incorporates the "simple" and "traditional" standard of but-for causation. Nassar, 570 U. S., at 346, 360, 133 S. Ct. 2517. That form of causation is established whenever a particular outcome would not have happened ‘but for’ the purported cause. See Gross, 557 U. S. at 176, 129 S. Ct. 2343. In other words, a but-for test directs us to change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause. | |||
=='''Private Right of Action under Section 23(h)(1)(A) of the Commodity Exchange Act'''== | |||
The CEA authorizes a whistleblower to bring a CFTC whistleblower retaliation claim in federal court. | |||
=='''Statute of Limitations for a CFTC Whistleblower Retaliation Claim'''== | |||
The statue of limitations for a CFTC whistleblower retaliation claim is two years after the date on which the act of retaliation is committed. | |||
=='''Arbitration of a CFTC Whistleblower Retaliation'''== | |||
An employer can not require arbitration of a CFTC whistleblower retaliation claim. The Dodd-Frank Act expressly provides that CFTC whistleblower retaliation claims are not subject to pre-dispute arbitration agreements. See 7 U.S.C. § 26(n). | |||
=='''Other Whistleblower Protection Laws May Provide a Remedy for Retaliation for Corporate Whistleblowers'''== | |||
Other federal and state whistleblower protection laws may provide an additional remedy, including New York’s recently amended whistleblower protection law. | |||
='''CFTC Prohibits “Gag Clauses” in Confidentiality and Employment Agreements'''= | |||
The rules implementing the CFTC whistleblower program '''prohibit employers from taking steps to impede whistleblowers from communicating with the CFTC staff.''' In particular, 17 C.F.R. § 165.19(b) provides: | |||
No person may take any action to impede an individual from communicating directly with the Commission’s staff about a possible violation of the Commodity Exchange Act, including by enforcing, or threatening to enforce, a confidentiality agreement or predispute arbitration agreement with respect to such communications. | |||
This prohibition is critical to the success of any whistleblower program because '''companies often use overly broad confidentiality agreements to silence and punish whistleblowers'''. | |||