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Overview

Under the SEC Whistleblower Program, the SEC will issue awards to whistleblowers who provide original information that leads to enforcement actions with total monetary sanctions (penalties, disgorgement, and interest) in excess of $1 million. In exchange for the valuable information, a whistleblower may receive an award of between 10% and 30% of the total monetary sanctions collected.

In determining an award percentage, the SEC considers the particular facts and circumstances of each case. For example, positive factors that may increase an award percentage 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. On the other hand, negative factors that may decrease an award percentage include unreasonable delay in reporting the violation to the SEC and the culpability or involvement of the whistleblower in the violation.

Under the SEC Whistleblower Reward Program, whistleblowers can submit tips anonymously to the SEC through an attorney and be eligible for an award for exposing any material violation of the federal securities laws.

The SEC Whistleblower Program continued its remarkable run of success in FY 2020. According to the SEC Whistleblower Office’s 2020 Annual Report to Congress, the office received more than 6,900 tips in the fiscal year. This is the highest number of tips the office has received in one year. Most whistleblower tips related to corporate disclosures and financials (25%), offering fraud (16%) and market manipulation (14%). Other notable areas of tips included insider trading, trading and pricing schemes, foreign bribery and other FCPA violations, unregistered securities offerings and fraud in connection with initial coin offerings (ICOs) and cryptocurrencies. Since 2011, the SEC Whistleblower Office has received more than 40,200 tips that have enabled the SEC to recover more than $3.5 billion in monetary sanctions from wrongdoers.

Consistent with prior years, the states that yielded the highest number of tips in FY 2020 were California, New York, Florida, Texas, and Pennsylvania. Other states that reported a high number of tips were Arizona, Georgia, Massachusetts, Michigan, North Carolina, Ohio, New Jersey, Virginia and Washington. The SEC Whistleblower Office also received tips from 78 foreign countries in FY 2020. The highest number of tips were from whistleblowers in Canada, the United Kingdom and the People’s Republic of China.

Whistleblowers need not be U.S. citizens to be eligible for SEC whistleblower awards. According to the 2017 Corruption Perceptions Index, a majority of countries are making little or no progress in ending corruption. This finding is consistent with PwC’s 2018 fraud survey, which reported the highest fraud levels in organizations in the past 20 years, and the ACFE’s 2021 fraud survey, which reported that 51% of organizations have uncovered more fraud since the pandemic and 71% of anti-fraud professionals expect the level of fraud to increase over the next year. As the SEC continues to promote worldwide public awareness of the SEC Whistleblower Program, we expect to see an increase in whistleblower tips and awards in the coming years.

SEC Whistleblower Program A Success

The report also indicates that the SEC Whistleblower Program is gaining momentum. In particular, the SEC Office of the Whistleblower, which first opened its doors in August 2011, has issued a majority of the whistleblower awards in the past several years:

• In FY 2015, the SEC issued $37 million in awards to whistleblowers.
• In FY 2016, the SEC issued $57 million in awards to whistleblowers.
• In FY 2017, the SEC issued $50 million in awards to whistleblowers.
• In FY 2018, the SEC issued $168 million in awards to whistleblowers.
• In FY 2019, the SEC issued $60 million in awards to whistleblowers.
• In FY 2020, the SEC issued $175 million in awards to whistleblowers.

Notably, FY 2021 is shaping up to be the best year in the SEC Whistleblower Program’s history. On October 22, 2020, the SEC issued the largest whistleblower award in the program’s history of $114 million. In addition, according to the SEC’s 2020 Agency Report, the SEC recognized a $255 million contingent liability for potential whistleblower awards to be paid in FY 2021.

SEC Office of the Whistleblower

In 2011, the SEC Office of the Whistleblower was created pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank) to run the SEC Whistleblower Reward Program. The program offers monetary incentives to individuals who report information about violations of the federal securities laws to the SEC. In its short history, the SEC Whistleblower Reward Program has been extraordinarily successful in enabling the SEC root out securities fraud and protect investors. To date, the SEC Office of the Whistleblower has issued more than $500 million in awards to whistleblowers.

SEC Whistleblower Rules

Under the rules of the program, the SEC Office of the Whistleblower is required to issue awards to eligible whistleblowers who provide original information that leads to successful enforcement actions with total monetary sanctions in excess of $1 million. In exchange for the specific and credible tips, whistleblowers will receive an award of between 10% and 30% of the total monetary sanctions collected. The SEC considers positive and negative factors when determining an award percentage.

The program allows individuals to submit information anonymously to the SEC Office of the Whistleblower if represented by an attorney. Whistleblowers are also afforded substantial protection against retaliation.

Regardless of citizenship, under the SEC Whistleblower Program, whistleblowers are eligible for monetary awards when they provide original information to the SEC about violations of federal securities laws.

Since the inception of the whistleblower program, tips have come from whistleblowers in 119 countries outside of the United States. In 2018 alone, the SEC received tips from whistleblowers in 72 foreign countries. The SEC Whistleblower Office received the highest number of tips from whistleblowers in the: United Kingdom, Canada, and Australia.

To date, the SEC Whistleblower Office has issued approximately $1 billion in awards to whistleblowers. The largest SEC whistleblower awards to date are $50 million, $39 million, and $37 million. For more information about the SEC Whistleblower Program, see the eBook Tips from SEC Whistleblower Attorneys to Maximize an SEC Whistleblower Award.

Criteria for Determining the Amount of a Whistleblower Award

Many factors affect the amount of a whistleblower award. The SEC may increase the amount of an award based on the following factors:

1. The significance of the tip to the success of any proceeding brought against wrongdoers. A tip’s significance depends on, for example:
   1. the nature of the reported information, including whether the information’s reliability and completeness allowed the SEC to conserve resources; and
   2. the degree to which the information supported one or more successful claims brought by the SEC or related actions brought by other regulatory or law-enforcement authorities.
2. The extent of the assistance that you and your legal representative provided in the SEC action or related action. Considerations include:
   1. whether you provided ongoing, extensive, and timely cooperation and assistance (including when the whistleblower or their attorney provides industry-specific knowledge and expertise);
   2. the timeliness of your initial report to the SEC or to your employer;
   3. the resources conserved because of your assistance;
   4. whether you appropriately encouraged or authorized others, who might otherwise not have participated in the investigation or related action, to assist SEC staff;
   5. your efforts to remediate the harm caused by the violations; and
   6. any unique hardships you experienced as a result of blowing the whistle.
3. The SEC’s law-enforcement interest in deterring the specific violation. Consider factors such as:
   1. how much an award enhances the SEC’s ability to enforce the federal securities laws and protect investors;
   2. the degree to which an award encourages the submission of high-quality information;
   3. whether the specific violation is an SEC priority; and
   4. the dangers of the specific violation to investors.
4. Whether, and the extent to which, you participated in your company’s internal compliance and reporting systems. Think about:
   1. whether you reported internally before, or at the same time as, you reported to the SEC; and
   2. whether you assisted any internal investigation concerning the violation.

Conversely, the SEC may reduce the amount of an award based on these considerations:

1. If you participated in, or were culpable for, the securities-law violation(s) you reported. Consider the following:
   1. your role in the violation;
   2. your education, training, experience, and position of responsibility at the time the violation occurred;
   3. whether you acted knowingly and intentionally;
   4. whether you financially benefitted from the violation;
   5. whether you committed a violation in the past;
   6. the egregiousness of the underlying violation; and
   7. whether you knowingly interfered with the SEC’s investigation of the violation.
2. If you unreasonably delayed reporting the violation(s) to the SEC. This determination is based on:
   1. whether you failed to take reasonable steps to report or prevent the violation from occurring or continuing;
   2. whether you were aware of the violation but reported to the SEC only after learning of an investigation into the misconduct; and
   3. whether there was a legitimate reason for you to delay reporting the violation.
3. If you interfered with your company’s internal compliance and reporting systems. Consider whether you knowingly:
   1. interfered with your company’s reporting systems to prevent or delay detection of the violation; or
   2. made materially false statements, or provided false documents, to hinder your company’s ability to detect, investigate, or remediate the violation

Securities Law Violations that Qualify for an SEC Whistleblower Award

• Accounting fraud
• Investment fraud
• Ponzi schemes
• Foreign bribery and FCPA violations
• Cryptocurrency fraud
• Promissory note fraud
• EB-5 investment Fraud
• Fraudulent Securities Offerings
• Improper Revenue Recognition
• Inadequate Internal Controls
• Deceptive Non-GAAP Financials
• Manipulation of a Security’s Price or Volume
• Insider Trading
• Hedge Fund Fraud
• Unregistered Broker-dealers
• Investment Adviser Fraud
• Anti-money laundering violations
• False or Misleading Statements About a Company or Investment
• Violations of Auditor Independence Rules
• Misleading or Incomplete Cybersecurity Disclosures

Awards Paid from a Deferred Prosecution Agreement or Non-Prosecution Agreement

In September 2020, the SEC revised its whistleblower rules to add a new paragraph (3) to existing Rule 21F-4(d) to provide that the term “administrative action” includes a deferred prosecution agreement (“DPA”) or a non-prosecution agreement (“NPA”) entered into by DOJ as well as a settlement agreement entered into by the SEC outside of the context of a judicial or administrative proceeding to address violations of the securities laws; and further that any money required to be paid in such actions will be deemed a “monetary sanction” within the meaning of Rule 21F-4(e).

This proposed addition to Rule 21F-4 sought to make awards available to meritorious whistleblowers in cases where these alternative vehicles are used to address violations of law. Its premise was the same as that underlying current Rule 21F-4(d)(1) — that Congress did not intend for meritorious whistleblowers to be denied awards simply because of the procedural vehicle that the SEC (or another governmental entity) has selected to resolve an enforcement matter.

Rationale for Deeming Payments made under DPAs and NPAs as “Monetary Sanctions”

The September 2020 SEC release adopting amendments to the rules governing the SEC Whistleblower Program explains the rationale for deeming payments made under DPAs and NPAs as “monetary sanctions” on which an award can be based:

First, we have decided not to extend the rule to DPAs and NPAs entered into by state attorneys general in criminal cases. Second, we have added the modifier “similar” in paragraph (d)(3)(ii), which describes the Commission settlement agreements to which the rule will apply, in order to clarify the features of these agreements that merit treating them as administrative actions that impose monetary sanctions. Third, we have decided to apply the rule to any DPA, NPA, or Commission settlement agreement that would otherwise fall within the terms of the rule (provided that the agreement was entered into after July 21, 2010, which is the date after which the Dodd-Frank Wall Street Reform and Consumer Protection Act took effect).

. . . Several circumstances inform our decision to treat DPAs and NPAs entered into by DOJ as forms of “administrative action” for purposes of Section 21F. First, DOJ itself recognizes the importance of DPAs and NPAs in the hierarchy of tools that are available for addressing criminal misconduct on the part of companies, their officers, and their employees.28 DOJ has explained that DPAs and NPAs provide a “middle ground” for resolution of a criminal matter in circumstances where a declination is determined to be inappropriate, but a conviction of a company may have significant collateral consequences for innocent third parties. Second, DPAs and NPAs entered into by DOJ ordinarily impose significant continuing obligations and conditions on subject companies, coupled with clear and substantial consequences for default–including the continuation or initiation of criminal prosecution. Thus, on its face, the terms of a DPA or an NPA reflect a substantive resolution of a criminal matter by DOJ–in other words, an action–and not simply the closing of the investigation.

For similar reasons, it is reasonable to view payments made under DOJ DPAs and NPAs as “monetary sanctions” on which a whistleblower award can be based. Section 21F(a)(4) defines “monetary sanctions,” in relevant part, as “monies, including penalties, disgorgement, and interest, ordered to be paid… as a result of such action or any settlement of such action.” The payments required under a DPA or an NPA with DOJ are enforceable as a result of the company’s admissions of facts and liability, which would support the government’s criminal charges, coupled with the company’s agreement to toll applicable statutes of limitations in the event DOJ determines (in its sole discretion) that prosecution is warranted because the company has breached the agreement. Given these provisions, the practical effect of a DPA or an NPA is to compel the subject company to make the monetary payments to which it has agreed or face the possibility of criminal prosecution on the basis of its previous admissions. Under these circumstances, payments made under a DPA or an NPA with DOJ are reasonably viewed as “ordered” within the meaning of Section 21F.

In the implementation of our whistleblower program to date we have not had occasion to consider a DPA or an NPA entered into by a state attorney general in a criminal case. We proposed to include such agreements in Rule 21F-4(d)(3)(i) in the expectation that they should generally be similar in nature to DPAs and NPAs entered into by DOJ. However, we are persuaded by the concern expressed by one commenter that including state DPAs and NPAs in the rule risks introducing inconsistency in the eligibility standards for related action awards as a result of the application of varying culpability and other standards under state law.33 DPAs and NPAs are long-established in DOJ practice, and their terms, conditions, and use have been subject to a great deal of transparency.34 But the Commission has limited insight into the practices of 50 state attorneys general (plus the District of Columbia’s) in entering into DPAs and NPAs, and we believe it would be administratively infeasible to establish consistent award standards if required, on a case-by-case basis, to determine whether any particular state DPA or NPA includes terms sufficiently similar to those that typify DOJ DPAs and NPAs such that the state instrument should also be deemed an “administrative action” that imposes ““monetary sanctions.” For this reason, new Rule 21F-4(d)(3) does not extend to DPAs or NPAs entered into by state attorneys general in criminal cases.

The rule we are adopting today includes settlement agreements similar to DOJ DPAs and NPAs entered into by the Commission outside of the context of a judicial or administrative proceeding. In our practice, these agreements have included key provisions typically analogous to those found in DOJ DPAs and NPAs that warrant also treating them as “administrative actions,” with the payments required under these agreements constituting “monetary sanctions.” Among the provisions that we deem important to our analysis are: (1) substantial continuing obligations on the part of the respondent (e.g., detailed and specific cooperation requirements and a requirement that any successors to the respondent be bound by the agreement); (2) specificity as to conduct that constitutes a violation of the agreement (e.g., further violations of the federal securities laws, provision of false information, and failure to make payments on the schedule and in the amounts due); (3) tolling of applicable statutes of limitations; and (4) clear and substantial consequences for default, including the respondent’s agreement not to contest or challenge the admissibility in a future enforcement action of factual statements supporting the Commission’s case that are recited as part of the agreement, as well as the respondent’s consent to the use of any documents, testimony, or other evidence previously provided by it in a future enforcement action resulting from its violations.

Lessons Learned from SEC Whistleblower Award Determinations

The SEC Whistleblower Program has issued more than $1 billion in awards to whistleblowers since 2012, which includes a multi-million dollar award to a client of Zuckerman Law. The largest SEC whistleblower awards to date are $114 million, $110 million, and $50 million. The orders announcing the awards, while sparse, offer critical guidance on how to: (1) recover an award; and (2) maximize the award percentage. These five lessons are drawn from those orders and our experience effectively representing SEC whistleblowers.

Tip #1: Establish a Material Violation

Many SEC whistleblower attorneys will incorrectly begin the analysis of a claim by determining a whistleblower’s eligibility for an award. This puts the cart before the horse. The first step in any successful whistleblower claim is to determine whether you can establish a material violation of federal securities law. In other words, can you show the SEC that your tip concerns a violation that is serious enough to warrant the use of its limited resources?

Whistleblowers have filed more than 40,200 tips with the SEC since August 2011. In a perfect world, the SEC would be able to investigate all legitimate tips and stop even immaterial violations. However, the SEC has limited resources, so it can pursue only the best tips. (See Tip #5 on how to get the SEC’s attention with your tip.)

If you have a hunch about a violation but lack any proof, then it may be worth investigating further, rather than submitting an incomplete or speculative claim to the SEC. Tips generally fall to the wayside unless they provide “specific” and “credible” information about a material violation of the federal securities laws. That said, if you have such information about a material violation, you will most likely want to submit your Form TCR as soon as possible (see Tip #3) unless you are required to take certain steps prior to submitting a tip in order to be eligible for an award.

Tip #2: Quickly Determine Eligibility Because It May Affect Award Percentage

The next step in any successful whistleblower claim is to determine eligibility. This step follows a finding of a material violation because, while most individuals cannot establish a material violation, almost everyone can become eligible for an award, if certain steps are taken. Lawyers, external and internal auditors, and even individuals involved in the wrongdoing are among those who may be eligible for awards.

Analyzing an individual’s eligibility is complex. The analysis differs depending on the individual’s relation to the company and how the individual obtained the information. For example, auditors may report to the SEC and be eligible for an award if:

• they have a reasonable basis to believe the disclosure is necessary to prevent conduct that is likely to cause “substantial injury” to the financial interest or property of the entity or investors;
• they have a reasonable basis to believe the entity is engaging in “conduct that will impede an investigation of the misconduct”; or
• at least 120 days have passed either since they properly disclosed the information internally, or since they obtained the information under circumstances indicating that the entity’s officers already knew of the information.

Auditors who obtained the information during their audit of an issuer, however, will be eligible for an award only if:

• they have a reasonable basis to believe the disclosure is necessary to prevent “a material violation of the securities laws” that is likely to cause “substantial injury” to the financial interest or property of the entity or investors;
• they have a reasonable basis to believe the entity is engaging in “conduct that will impede an investigation of the misconduct even if the submission does not contain an allegation of audit firm wrongdoing”; or
• they report the securities-law violation to a superior in their independent public-accounting firm, and the firm fails to promptly report that information to the SEC.

Eligibility depends on various factors. If whistleblowers are uncertain about their eligibility, then they should consult with an experienced SEC whistleblower attorney. A skillful analysis may be the difference between a multimillion-dollar whistleblower award and no award at all.

Tip #3: Act Fast

It is never too early to think about maximizing your potential award. Whistleblowers may receive anywhere from 10% to 30% of the monetary sanctions collected in actions brought by the SEC and in related actions brought by other regulatory or law enforcement authorities. And the timing of a whistleblower’s tip is a significant factor that the SEC considers in determining whether, and how much, to award.

To be eligible for an award, a whistleblower must first submit “original information.” Original information is any information that the SEC does not already have. Whistleblowers who wait to report information, therefore, risk that someone else will submit the same information to the SEC first. Keep in mind that even if the SEC has already opened an investigation, whistleblowers may still qualify for an award if their information “significantly contributes” to the success of an action.

Next, the whistleblower office may reduce the amount of an award if the whistleblower unreasonably delays reporting the violation to the SEC. About 20% of the awards issued through 2015 were reduced because of an unreasonable reporting delay. In making this determination, the whistleblower office considers:

• whether the whistleblower failed to take reasonable steps to report the violation or prevent it from occurring or continuing;
• whether the whistleblower was aware of the violation but reported to the SEC only after learning of an investigation into the misconduct; and
• whether there was a legitimate reason for the whistleblower to delay reporting the violation.

For example, on February 28, 2017, the SEC issued an order reducing an award to 20% of the monetary sanctions collected “because of both the Claimant’s culpability in connection with the securities law violations at issue in the Covered Action and the Claimant’s unreasonable delay in reporting the wrongdoing to the Commission.”

Finally, to be eligible for an award, some whistleblowers must take certain actions (e.g., the 120-day exception for auditors under certain circumstances, see Tip #2) before reporting to the SEC. Whistleblowers should therefore understand and consider the specific eligibility requirements in determining when to report to the SEC.

Tip #4: Know the Rules Before Filing with the SEC

Besides avoiding “unreasonable delay,” whistleblowers should be aware of other factors (see § 240.21F-6) that influence the size of awards. Whistleblowers must learn the rules early on because, as mentioned, some actions must be taken prior to filing with the SEC. For example, the whistleblower office may reduce the amount of an award if the whistleblower participated in the reported securities-law violation or interfered with the company’s internal compliance and reporting systems.

On the other hand, the whistleblower office may increase the amount of an award based on:

• the tip’s significance to the success of any proceeding brought against wrongdoers;
• the assistance that you and your legal representative provide in the SEC action or related action;
• the SEC’s law-enforcement interest in deterring the specific violation; and
• whether, and the extent to which, you participated in your company’s internal compliance and reporting systems.

Accordingly, whistleblowers have an incentive to report internally to their companies’ compliance personnel before going to the SEC. If whistleblowers choose to report internally, then they should also report the same information to the SEC within 120 days. That way, in evaluating a potential award, the SEC will consider the date of the internal report, rather than the date that the whistleblower reported to the SEC. As the SEC puts it, the whistleblower office will “hold your place in line.” This may determine, for example, whether a whistleblower submitted “original information.”

Tip #5: Draft a Tip that Grabs the SEC’s Attention

The SEC Whistleblower Office is relatively small, and thousands of tips are submitted annually. According to the SEC’s Annual Report Congress on the Whistleblower Program, the office received 6,911 tips in fiscal year 2020. As such, SEC whistleblowers and their attorneys should tailor their tips to quickly grab the whistleblower office’s attention. While one could write a book on this section alone, here are a few “rules” to keep in mind when drafting submissions:

1. Provide the SEC with a clear roadmap for a successful enforcement action. Do not submit a pile of documents and expect the whistleblower office to figure it out. Instead, walk the SEC, step by step, through specific and credible examples of the violation(s). A February 2020 order awarding $7M to a whistleblower recognized the whistleblower’s “extensive and ongoing assistance during the course of the investigation, including identifying witnesses and helping staff understand complex fact patterns and issues related to the matters under investigation; the Commission used information Claimant provided to devise an investigative plan and to craft its initial document requests; and recognition of Claimant’s persistent efforts to remedy the issues, while suffering hardships.”
2. Demonstrate how the violation is “material.” As mentioned, the SEC investigates only those violations that are serious enough to warrant the use of its limited resources. While demonstrating materiality, be sure to analyze the legal issues and tie them to the specific violations. This should include a discussion of potential challenges that the SEC may encounter and how the agency should address them.
3. If possible, provide the whistleblower office with documentation of the violation. The SEC is much more likely to act on a tip that is supported by strong evidence. The SEC does not, however, want all types of evidence. For example, the SEC does not want information that may violate the company’s attorney-client privilege (e.g., documents, including emails, that involve advice from inside or outside counsel).

Prevailing in a Retaliation Whistleblower Case With Prior Performance Problems

Every case is unique and the outcome of a case depends upon variety of factors, but a prior performance problem is not an insurmountable obstacle to prevailing in a whistleblower retaliation case. A whistleblower can prevail in a retaliation case even if they had a performance problem or problems prior to blowing the whistle. To prevail in a retaliation case, a whistleblower must show that 1) they engaged in protected activity, 2) their employer took an adverse employment action against them, and 3) the protected activity was a contributing factor to the adverse employment action. See Arnett v. Hilmar Cheese Co., 2018-CPS-00002 at 3 (ALJ Sep. 11, 2018) (citing various whistleblower statutes).

The contributing factor causation standard is favorable to whistleblowers. Under this standard, a whistleblower need only show that their engaging in protected activity in some way contributed to the employer taking an adverse action against them. A contributing factor is “any factor, which alone or in combination with other factors, tends to affect in any way the outcome of the decision.” Id. (citing Tocci v. Miky Transp., ARB No. 15-029, ALJ No. 2013-STA-071 (ARB May 18, 2017)). If an employee proves that their protected activity was a contributing factor in their employer taking an adverse action against them, to avoid liability, the employer must show by clear and convincing evidence that it would have taken the same action in the absence of the protected activity. Id. at 3-4 (citing 15 U.S.C.A. § 2087(b)(2)(B)(i)-(iv)).

In Arnett v. Hilmar Cheese Co., the ALJ denied the employer’s motion for summary judgment where it had disciplined the employee/whistleblower for repeated performance issues, including issuing him with multiple notices of corrective action. Id. at 4-5. In a coaching session with his supervisor, the employee became argumentative, reported that he did not believe the employer’s fume hoods were safe, and stated that he intended to verify their safety with OSHA. Id. at 2. His employer terminated his employment two days later. Id.

In a motion for summary judgment, the employer asserted that it would have terminated the whistleblower’s employment in the absence of his protected activity due to his repeated performance issues, which culminated in his “argumentative, combative, disrespectful, threatening, and insubordinate” behavior in the coaching session. Id. at 4-5. The ALJ, however, found that there was a genuine issue of material fact as to whether the disclosure about the fume hoods was a contributing factor in the whistleblower’s termination. Id. at 4. The ALJ emphasized that the temporal proximity of two days suggested that the protected activity may have been a contributing factor in the termination, even if the employer acted without retaliatory intent. Id. Further, the ALJ explained that the sooner an adverse action occurs after an employee engages in a protected activity, the more likely it is that the protected activity contributed to the adverse action. Id.

Finally, the ALJ stated that, based on the employer’s explanation of the facts, the employee’s behavior during the coaching session, where he became “argumentative . . . and insubordinate” did not seem to be particularly egregious or any worse than his prior conduct. Id. at 5. Therefore, the ALJ held that the evidence was insufficient to support the employer’s assertion that the report about fume hoods in no way contributed to the employee’s termination. Id. The ALJ concluded that without making a determination on the credibility of the parties involved, it was inappropriate to conclude that the employer had proven by clear and convincing evidence that it would have terminated the whistleblower in the absence of his protected conduct. Id.

In denying the employer’s motion for summary judgment, the ALJ confirmed that a whistleblower may prevail in a retaliation case even where they have had prior performance issues. While an employer may try to cite an employee’s performance as the basis for an adverse action, that employer must prove that the protected activity in no way contributed to the action. A whistleblower may prevail even where the employer has documented various and repeated performance issues; for the contributing factor causation standard only requires that the protected activity played some part in employer taking the adverse action. Especially where, as in Arnett, temporal proximity or another aspect of the case implies causation, an employee can still prevail.

Submitting a Tip Anonymously to the SEC Office of the Whistleblower

Under the SEC Whistleblower Program, the SEC will issue awards to whistleblowers who provide original information that leads to enforcement actions with total monetary sanctions in excess of $1 million. Since 2012, the SEC has issued nearly $1 billion in awards to whistleblowers. Unlike other whistleblower-reward programs, the SEC’s program allows whistleblowers to submit tips anonymously if they are represented by an attorney.

Many SEC whistleblowers are uncertain about what exactly anonymous whistleblowing means. Indeed, for many whistleblowers, it is imperative that their identity remain confidential throughout the entire SEC whistleblower process.

Prior to submitting a tip to the SEC, whistleblowers should assess the risks entailed in whistleblowing and options to mitigate those risks.

Anyone can submit a tip anonymously if you have an attorney represent you in connection with both: (1) your submission of information; and (2) your claim for an award. According to an SEC Whistleblower Office’s Annual Report to Congress, almost a quarter of the award recipients reported anonymously to the SEC Office of the Whistleblower through an attorney.

Attorney Submission of an Anonymous Tip to the SEC

The Form TCR (Tip, Complaint, or Referral) is the form SEC whistleblowers and their attorneys use to submit tips to the SEC Office of the Whistleblower. When a whistleblower submits a tip anonymously through an attorney, the whistleblower is not required to put his or her name on the form. Rather, the whistleblower’s attorney will provide their contact information and will be the SEC’s point of contact for the submission. In addition, the attorney will be required to, among other things, certify that they:

• Reviewed the whistleblower’s submission for completeness and accuracy;
• Verified the whistleblower’s identity by viewing his or her valid unexpired government-issued identification (e.g., driver’s license, passport);
• Obtained the whistleblower’s consent to disclose his or her name to the SEC if there are concerns that the whistleblower may have knowingly and willingly made false statements or used false documents in the submission; and
• Retain an original copy of the TCR, with Section F signed by the whistleblower.

Section F of Form TCR is the whistleblower’s declaration that the submission is “true, correct and complete to the best of my knowledge, information and belief.” Importantly, whistleblowers sign this declaration under the penalty of perjury. Whistleblowers should consult with their attorney if they have any concerns about the declaration.

Potential Exposure in an Anonymous Submission

The documents or information contained in a whistleblower’s submissions could potentially expose a whistleblower’s identity. As such, whistleblowers and their attorneys should first assess whether the benefit of providing the evidence outweighs the risk of exposing the whistleblower’s identity. If a whistleblower chooses to provide the evidence, the whistleblower should explicitly identify it in Section D, Part 11 of the Form TCR and explain how the evidence could reveal the whistleblower’s identity if disclosed to a third party. Notably, even when a whistleblower submits potentially compromising evidence, the SEC is required to shield the whistleblower’s identity. Specifically, Section 21F(h)(2) of the Exchange Act requires, with certain exceptions, that the SEC “shall not disclose any information, including information provided by a whistleblower to the [SEC], which could reasonably be expected to reveal the identity of a whistleblower.” Thus, even when the SEC obtains evidence that could expose a whistleblower’s identity, the SEC is required to go out of its way to protect the identity of the whistleblower.

However, there are limits on the SEC’s ability to shield a whistleblower’s identity and in certain circumstances the SEC must disclose it to outside persons or entities. For example, in an administrative or court proceeding, the SEC may be required to produce documents or other information which could reveal a whistleblower’s identity. In addition, as part of the SEC’s ongoing investigatory responsibilities, the SEC may use information the whistleblower has provided during the course of its investigation. In appropriate circumstances, the SEC may also provide information, subject to confidentiality requirements, to other governmental or regulatory entities.

Prior to submitting information to the SEC, whistleblowers should consult with an experienced SEC whistleblower law firm to determine the appropriate steps to take to maximize the likelihood that their identity is protected throughout the process.

Disadvantages to Submitting a Tip Anonymously

Anonymous whistleblowing offers many obvious benefits, such as protecting whistleblowers from retaliation or harm to their career. But there can be some minor disadvantages.

When Submitting the Form TCR

Disclosing fraud to the SEC anonymously may limit the type of evidence that can be provided to the SEC. For example, a whistleblower may be concerned that certain documents or information that prove the fraud may also reveal their identity. Whistleblowers must weigh the risk of exposing their identity to the SEC (as mentioned, the SEC is required by law to keep the information confidential) with the risk that the SEC will not act on their tip. Since 2011, the SEC Whistleblower Office has received more than 40,200 tips from whistleblowers. In fiscal year 2020 alone, the office received over 6,900 whistleblower tips. As the SEC has limited investigative resources, typically it will pursue a tip only where it receives specific, timely, and credible information about federal securities laws violations. In certain circumstances, a detailed and credible tip could potentially reveal the whistleblower’s identity to the SEC.

For example, a disclosure from a senior-level corporate insider, such as an executive, can lend credibility to the tip because senior company officials often know who at the company has authorized or facilitated a fraud scheme. But providing details about a whistleblower’s background or position within a company could expose the whistleblower’s identity. Again, the whistleblower should seek advice to weigh the risk of exposing their identity to the SEC against risk that the SEC will not act on their tip.

When the SEC Investigates a Whistleblower's Tip

If a whistleblower and the whistleblower’s attorney draft a tip that grabs the SEC’s attention, the SEC will often request to have a telephone interview with the whistleblower (who can remain anonymous or deny the request) or the whistleblower’s attorney to gain a better understanding of the federal securities laws violations. Furthermore, the SEC may request additional documents or information to confirm the alleged violations. If the SEC is persuaded by the interviews and information, it will assign the tip to one of its 11 Regional Offices, an Enforcement Specialized Unit, or an Enforcement Associate Director Group located in the SEC’s Headquarters.

Whistleblowers can be very helpful during this back-and-forth with the SEC, especially whistleblowers who have intimate knowledge and documentation of the violations. Notably, the SEC may increase a whistleblower’s award based on the assistance provided by a whistleblower. But responding to a request from the SEC for additional information could inadvertently reveal information that exposes the whistleblower’s identity.

Disclosing the Identity of the Whistleblower

Whistleblowers will only have to disclose their identity to the SEC at the end of the whistleblowing process when applying for an award. (Note: The SEC will not disclose the whistleblower’s identity publicly, even at the time of announcing an award, e.g., see the SEC Office of the Whistleblower’s Final Orders for award determinations.) In the application for an award, known as the Form WB-APP, the whistleblower must disclose his or her identity to the SEC so that the Commission can determine whether the whistleblower is “eligible” for an award under the program. Certain whistleblowers, such as key compliance personnel, are not eligible for awards, unless an exception applies.

In summary, the SEC Whistleblower Program offers whistleblowers the opportunity to disclose information anonymously and there are safeguards in place throughout the process to protect whistleblower confidentiality. But in certain circumstances, revealing a whistleblower’s identity to the SEC can increase the likelihood that the SEC will pursue the tip.

Confidentiality Applies to Other Government Agencies

If the SEC shares the whistleblower’s submission with another agency, such as informing the Department of Justice of a Foreign Corrupt Practices Act (FCPA) violation, Section 21F(h)(2)(D)(ii)(I) of the Exchange Act provides that the other agency “shall maintain such information as confidential” subject to the same confidentiality requirements that apply to the Commission under Section 21F(h)(2)(A).

10-Step Summary of the SEC Whistleblower Process

Below is a 10-step summary of the SEC whistleblower process. Please note this is a general overview that does not address a multitude of considerations that whistleblowers and their attorneys should consider during the process. Whistleblowers should contact an experienced SEC whistleblower attorney for a detailed, fact-specific analysis of the process as it relates to their claim and potential whistleblower award.

Step	Summary
1. Submit a Tip to the SEC	To qualify for an award under the SEC Whistleblower Program, the SEC requires eligible whistleblowers and/or their attorneys (whistleblowers may file anonymously if represented by an attorney) to submit tips regarding violations of the federal securities law in one of two ways: By submitting a tip electronically through the SEC’s Tips, Complaints and Referrals (TCR) Portal; or By mailing or faxing a Form TCR to the SEC Office of the Whistleblower. Since 2011, the SEC Office of the Whistleblower has received more than 40,200 tips. In FY 2020 alone, the SEC received more than 6,900 tips. As the SEC has limited resources to review all submissions, it is imperative that SEC whistleblowers and their attorneys frame their tips in a way that will be more likely to get the SEC’s attention. According to the SEC’s FY 2020 Annual Report to Congress: In general, whistleblower tips that are specific, credible, and timely, and which are accompanied by corroborating documentary evidence, are more likely to be forwarded to investigative staff for further analysis or investigation. For instance, if the tip identifies individuals involved in the scheme, provides examples of particular fraudulent transactions, or points to non-public materials evidencing the fraud, the tip is more likely to be assigned to Enforcement staff for investigation. Tips that make blanket assertions or general inferences based on market events are less likely to be forwarded to or investigated by Enforcement staff. In addition, and as a practical matter, whistleblowers are more likely to have their tips reviewed and acted on if they have an experienced SEC whistleblower lawyer advocating for them. For more information on submitting a TCR to the SEC, see this helpful article: 5 Tips for SEC Whistleblowers and Lessons Learned from SEC Whistleblower Awards.
2. Tip Analysis/Investigation	The SEC’s Office of Market Intelligence (OMI) evaluates incoming whistleblower tips, focusing on TCRs that contain specific, credible, and timely information. If OMI determines that a TCR warrants further investigation, OMI will assign the tip to one of the SEC’s regional offices, a specialty unit, or to an Enforcement group in the SEC’s Home Office. TCRs that relate to an existing investigation are forwarded to the staff working on the matter. At this stage in the SEC whistleblower process, the SEC will frequently request to interview whistleblowers and/or their attorneys to, among other things, clarify aspects of the TCR, discuss evidence, and identify potential witnesses. After interviews, whistleblowers and their attorneys will often provide the SEC with additional information and materials to support and bolster their initial TCR. As a matter of policy, the SEC conducts its investigations on a confidential basis. The purpose of this is to: protect the integrity of any investigation from premature disclosure; and protect the privacy of the persons involved in an investigation. Accordingly, there may be very limited information that the SEC can share with you or your attorney regarding what action, if any, the SEC has taken in response to your TCR.
3. SEC Enforcement Action	As of FY 2020, the SEC was tracking more than 1,100 matters in which a whistleblower’s TCR caused a Matter Under Inquiry (MUI) or investigation to open, or has been forwarded to Enforcement staff for review and consideration in connection with an ongoing investigation. Some of these matters may result in successful enforcement actions with total monetary sanctions in excess of the $1 million threshold.
4. Noticed of Covered Actions Posted	At the end of each month, the Office of the Whistleblower posts Notices of Covered Action for each SEC action where a final judgment or order resulted in monetary sanctions exceeding $1 million. Whistleblowers who submitted TCRs that led to the successful enforcement actions are eligible to apply for awards at this time.
5. Submit an Application for an Award	Once a Notice of Covered Action is posted, whistleblowers have 90 calendar days to apply for an award by submitting a completed Form WB-APP to the SEC Office of the Whistleblower. In the Form WB-APP, whistleblowers and their attorneys are required to, among other things, explain why they are entitled to an award in connection with their TCR. Experienced SEC whistleblower attorneys will also provide a detailed analysis of the significant factors that the SEC considers when determining whether to increase or decrease the percentage of a whistleblower’s awards.
6. Preliminary Award Determinations Issued	After a whistleblower applies for an award, the SEC Office of the Whistleblower’s Claims Review Staff will review the application in accordance with the rules of the program and make a preliminary award determination. This determination will recommend whether to issue an award and the proposed award amount. The Claims Review Staff may base this determination on: The Form TCR; The Form WB-APP; Sworn declarations from the SEC staff that worked on the enforcement action; The enforcement action’s orders and pleadings; and Other appropriate materials identified in 17 C.F.R. § 240.21F-12(a). As detailed in a recent WSJ article, it currently takes the SEC more than 2 years to make this preliminary determination. However, the SEC has adopted rule amendments in September 2020 that will significantly speed up this process in the future.
7. Contesting a Preliminary Determination	After the Claims Review Staff makes its preliminary determination, it will send the whistleblower a written notification of the determination and an explanation of the whistleblower’s rights in the awards claims process. At this point, the whistleblower will have 30 calendar days to: Request the record that was used by the Claims Review Staff in making the preliminary determination; and/or Request a meeting with the SEC Whistleblower Office staff to discuss the preliminary determination (however, such meetings are not required and the office may decline the request). If the whistleblower decides to contest a preliminary determination, he or she must appeal the determination within 60 calendar days of the later of: (i) the date of the preliminary award determination, or (ii) the date when the SEC Whistleblower Office made materials available for review.
8. Final Orders Issued/Resolution of Appeals	If a whistleblower appeals the SEC’s preliminary determination, the Claims Review Staff will consider the whistleblower’s response, along with any supporting documentation provided, and will make its proposed final determination. After issuing a proposed final determination, any Commissioner can review the proposed final determination within 30 days. If no Commissioner requests a review within the 30-day period, then the proposed final determination will because the final order of the Commission. If a whistleblower chooses not to appeal a preliminary determination, or fails to appeal in a timely manner, the preliminary determination will become the SEC’s final order (except where the preliminary determination recommends granting an award, in which case it will become a proposed final determination subject to the the above-mentioned 30-day Commissioner approval). Notably, a whistleblower’s failure to contest a preliminary determination will constitute a failure to exhaust administrative remedies, and the whistleblower will be prohibited from appealing the determination to a United States Court of Appeals.
9. Awards Issued from Investor Protection Fund	Once the SEC issues a final order granting an award, all payments are made out of an investor protection fund, which was established pursuant to Section 21F(g) of the Dodd-Frank Act to fund the payment of awards to whistleblowers. The investor protection fund is financed entirely through monetary sanctions paid to the SEC by securities law violators, and no money is taken or withheld from harmed investors to pay whistleblower awards. See 15 U.S.C. § 78u-6(g)(1)-(4). See some of the SEC whistleblower cases that have resulted in multi-million dollar awards.
10. Appealing the SEC’s Final Orders	If the SEC denies an award to a whistleblower, the whistleblower may file an appeal in an appropriate United States Court of Appeals (either the United States Court of Appeals for the District of Columbia Circuit, or to the circuit where the aggrieved person resides or has his or her principal place of business) within 30 days of the decision being issued. If the SEC issues an award to the whistleblower of between 10 to 30 percent of the monetary actions collected in the action, the whistleblower may not appeal the award determination if the award was made in accordance with subsection (b). See 21F-13.

Employment Protections Available for SEC Whistleblowers

The Dodd-Frank Act, which created the SEC Whistleblower Program, prohibits retaliation against whistleblowers for raising concerns about potential securities law violations. Remedies for a prevailing whistleblower include reinstatement, double back pay, litigation costs, expert witness fees, and attorneys’ fees.

Retaliation for whistleblowing to the SEC is also proscribed by the whistleblower protection provision of the Sarbanes-Oxley Act (“SOX”). The remedies are similar to those under Dodd-Frank, but SOX also includes special damages, such as emotional distress, impairment of reputation, and other noneconomic harm resulting from retaliation. Click here for information about additional options to combat retaliation against SEC whistleblowers.

Largest SEC Whistleblower Awards

Since 2012, the SEC has issued more than $1 billion in SEC whistleblower awards, which includes several awards to our clients. In 2020 alone, the SEC issued five of the top SEC whistleblower awards, totaling more than $241 million. The largest SEC whistleblower awards to date are:

• $114 million SEC whistleblower award (October 22, 2020)
• $110 million SEC whistleblower award (September 15, 2021)
• $50 million SEC whistleblower award (April 15, 2021)
• $50 million SEC whistleblower award (June 4, 2020)
• $50 million SEC whistleblower award (March 19, 2018)
• $39 million SEC whistleblower award (September 6, 2018)
• $37 million SEC whistleblower award (March 26, 2019)
• $33 million SEC whistleblower award (March 19, 2018)
• $30 million SEC whistleblower award (September 22, 2014)
• $28 million SEC whistleblower award (May 19, 2021)
• $28 million SEC whistleblower award (November 3, 2020)
• $27 million SEC whistleblower award (May 17, 2021)
• $27 million SEC whistleblower award (April 16, 2020)
• $23 million SEC whistleblower award (June 2, 2021)
• $22 million SEC whistleblower award (May 10, 2021)
• $22 million SEC whistleblower award (September 30, 2020)

Under the SEC whistleblower-reward program, the SEC is required to issue awards to eligible whistleblowers who provide original information that leads to successful SEC enforcement actions with total monetary sanctions exceeding $1 million. A whistleblower may receive an award of between 10% and 30% of the total monetary sanctions collected.

International Schemes and SEC Enforcement Actions

The SEC’s reach against fraudsters extends internationally. The antifraud provisions of the federal securities laws apply extraterritorially:

1. When the wrongful conduct occurred in the United States; or
2. When the conduct outside the United States had a substantial effect in the United States or upon United States citizens.

This is known as the “conduct-and-effects” test. Courts have applied this test for over 40 years notwithstanding the fact that the federal securities acts of 1933 and 1934 did not address the extraterritorial reach of the antifraud provisions of those statutes. On June 24, 2010, the Supreme Court of the United States held in Morrison v. Nat’l Australia Bank Ltd. that the lower courts were wrong to apply the conduct-and-effects test. Then, less than a month after the Morrison decision, Congress enacted the Dodd-Frank Act, which amended the jurisdictional provisions of the federal securities acts to clearly indicate that the anti-fraud provisions apply extraterritorially when the statutory conduct-and-effects test is met.

The Conduct-and-Effects Test

Through the Dodd-Frank Act, Congress amended the federal securities laws to include the conduct-and-effects test:

The district courts of the United States and the United States courts of any Territory shall have jurisdiction of an action or proceeding brought or instituted by the Commission or the United States alleging a violation of section 77q(a) of this title [Section 17(a) of the 1933 Securities Act] involving:

1. conduct within the United States that constitutes significant steps in furtherance of the violation, even if the securities transaction occurs outside the United States and involves only foreign investors; or
2. conduct occurring outside the United States that has a foreseeable substantial effect within the United States. See 15 U.S.C. § 77v(c).

SEC Enforcement Action Against International Ponzi Scheme

On January 24, 2019, in SEC v. Scoville, the United States Court of Appeals for the Tenth Circuit held (see opinion below) that Congress, in enacting the Dodd-Frank Act’s amendments to the jurisdictional provisions of the securities laws, “undoubtedly intended that the substantive antifraud provisions should apply extraterritorially when the statutory conduct-and-effects test is satisfied.” The Tenth Circuit proceeded to apply the test to a $207 million international Ponzi scheme, which had 90% of its customers outside the United States. The Ponzi scheme involved the sales of investment contracts by Traffic Monsoon, LLC, whose sole owner and member is Charles Scoville. The Tenth Circuit found that the Defendant’s actions satisfied the conduct-and-effects test because:

1. The Defendant’s company was located in the United States.
2. Through his company, the Defendant created and promoted the investments over the internet while residing in the United States.
3. The servers housing the company’s website were physically located in the United States.

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, A New Era of Extraterritorial SEC Enforcement Actions. In November 2019, the U.S. Supreme Court declined to review the case.

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
• Swap trading markets
• Derivatives
• Foreign corrupt practices

Approximately 65% of whistleblower cases filed at the CFTC involved charges of commodities fraud, market manipulation schemes and spoofing. Whistleblower tips to CFTC have helped drive record-level enforcement activity.

Since 2014, the CFTC has issued more than $120 million in awards to whistleblowers. The 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 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:

1. 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
2. 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 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 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 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 $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 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 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 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 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 CFTC Enforcement Advisory and 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 $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 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 Citibank to pay $250 million for attempted manipulation and false reporting of USD ISDAFIX benchmark-swap rates. According to a CFTC 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 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 CFTC Whistleblower Program and 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 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 $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 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:

Whistleblower Award	Date	Basis for Whistleblower Award
$45 million	August 2, 2018	On August 2, 2018, the CFTC announced a $45 million award to multiple whistleblowers. Reports indicate the award was related to ISDAFIX manipulation enforcement actions.
$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 JP Morgan did not properly disclose conflicts of interests to clients. Find the order here.
$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 here.
$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 here.
$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.
$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 here.
$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 here.
$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 here.
$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 here.
$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.”
$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.