Living in the United States, we have the luxury of enjoying various national holidays like Labor Day, Memorial Day and Presidents Day. However, many Americans are unaware that there is a National Whistleblower Appreciation Day. On July 30, 2021, the United States celebrated the 243rd anniversary of the first whistleblower law. This year was the first year that the Criminal Antitrust Anti-Retaliation Act (“CAARA”) has been in effect after being signed into law on December 23, 2020.[1] Under CAARA, no employer may discharge, demote, suspend, threaten, harass, or in any way discriminate against employees, contractors subcontractors, and agents of employees (“covered individual”) who report or cause to be reported criminal violations of antitrust laws or who participate in proceedings by the federal government regarding criminal antitrust violations.[2]
According to the Securities and Exchange Commission (“SEC”), whistleblower awards can range from 10 percent to 30 percent of the money collected when sanctions exceed $1 million.[3] It would seem with the combined efforts of the CAARA and the potential awards to whistleblowers, there is a tremendous incentive to whistleblowers to speak up against criminal violations. On October 22, 2020, the SEC issued a record-breaking award of $114 million to a whistleblower whose information assisted in a successful action.[4] This award consisted of $52 million in an SEC case and $62 million award rising out of a case of a different agency.[5] Former chairman of the SEC stated, “Today’s milestone award is a testament to the Commission’s commitment to award whistleblowers who provide the agency with high-quality information” further, “[w]histleblowers make important contributions to the enforcement of securities laws and we are committed to getting more money to whistleblowers as quickly and as efficiently as possible.” [6] Under the Dodd-Frank Act, the SEC does not disclose information that would reveal the whistleblower’s identity.[7]
In order to fund whistleblower awards, the SEC relies on monetary sanctions rather than withholding funds from injured investors.[8] In an effort to ensure there are funds to dispense awards and to properly fund these awards Congress established the Investor Protection Fund through Section 922 of the Dodd-Frank Act.[9] As of August 6, 2021, the SEC has awarded close to $1 billion in whistleblower awards since the program issued its first award in 2012.[10] Gary Gensler, chair of the SEC released a public statement that there is a possibility of revisions to recently enacted rules.[11] The rules which were enacted in September 2020, drew concern from whistleblower advocates and the SEC is considering the impact of these rules and if they would discourage whistleblowers from coming forward.[12]
Potential changes in the rules and further developments are critical to the success of securities enforcement and lawsuits on behalf of injured investors. Lowey is well equipped to continuously monitor these changes. If you have any questions or comments, please feel free to reach out Federico Zepeda at dzepeda@lowey.com.
[1] https://www.justice.gov/opa/pr/antitrust-division-observes-national-whistleblower-appreciation-day-0.
[2] https://www.congress.gov/bill/116th-congress/senate-bill/2258/text.
[3] https://www.sec.gov/news/press-release/2021-128.
[4] https://www.sec.gov/news/press-release/2020-266.
[5] Id.
[6] Id.
[7] Id.
[8] https://www.whistleblowers.org/memorandum-ensuring-the-integrity-of-the-investor-protection-fund-while-timely-and-properly-paying-whistleblower-claims/.
[9] Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111-203, § 922, 124 Stat. 1376, 1841 (2010) (codified at 15 U.S.C. § 78o).
[10] https://whistleblowersblog.org/corporate-whistleblowers/sec-whistleblowers/sec-nears-1-billion-in-whistleblower-awards/.
[11] https://www.sec.gov/news/public-statement/gensler-sec-whistleblower-program-2021-08-02.
[12] Id.