The Securities and Exchange Commission’s Whistleblower Program provides potentially sizeable rewards to eligible whistleblowers who submit “original information” to the Securities and Exchange Commission. The SEC Whistleblower Program, enacted through the Dodd-Frank Wall Street Reform and Consumer Protection Act, has now paid over $1.3 billion to whistleblowers who provided the SEC with tips uncovering myriad forms of corporate wrongdoing. Through this public-private partnership, the government has recovered billions of dollars.
What Sort of Conduct is Covered by the SEC’s Whistleblower Program?
The SEC’s Whistleblower Program provides eligible whistleblowers with monetary awards for submitting information relating to a wide range of conduct by companies and individuals. Given that the SEC’s jurisdiction is vast, the potential wrongdoing that falls within the scope of the whistleblower program is broad. For example, SEC whistleblowers can raise allegations including (but not limited to) the following:
- Foreign Corrupt Practices Act (FCPA) Violations
- Stock Price Manipulation
- Improper Revenue Recognition
- Corporate Disclosure Violations
- Insider Trading
- Accounting Standard Violations
- Market Manipulation
- Offering Fraud
- Illegal Front-Running
- Abusive Naked Short Selling
- Pump and Dump Schemes
- Cryptocurrency Fraud
- Decentralized Finance Fraud
- Dark Pool Fraud
- Money Laundering
- Pyramid Schemes
- Ponzi Schemes
- Private Equity Fraud
- Investment Advisor Fraud
- Unregistered broker-dealers
The SEC whistleblower program covers conduct where some form of federal securities violation is at issue. The violation does not need to occur at a publicly traded company, and thus whistleblowers may expose wrongdoing at privately held companies as well.
How Does the SEC Whistleblower Program Work?
Unlike whistleblowing under the False Claims Act, an SEC whistleblower does not file a lawsuit. Rather, an SEC whistleblower submit a “tip, complaint, or referral” (TCR) directly to the SEC apprising the agency of the securities violation(s) at issue. The SEC then determines whether the claim is worth pursuing.
If the SEC investigates and pursues the information provided by the whistleblower, and the whistleblower’s original information leads to a successful SEC enforcement action yielding a recovery of over $1 million in sanctions, then an eligible whistleblower may claim a monetary award. This is a two-step process. The whistleblower must submit a tip first. Then, if the SEC successfully pursues an enforcement action, the agency issues a Notice of Covered Action. The whistleblower then must submit a second filing wherein he or she makes a claim for an award.
The SEC Whistleblower Process
Who Can Be an SEC Whistleblower?
The SEC’s whistleblower program provides awards to a wide range of whistleblowers.
As a general rule, to be eligible for an award, the whistleblower must (1) voluntarily provide the tip, complaint, or referral to the SEC; (2) offer original information; (3) that information must lead to a successful administrative or court action; and (4) the SEC must obtain a recovery with monetary sanctions exceeding $1 million.
SEC Whistleblower Award Criteria
Notably, both corporate insiders and outsiders can be SEC whistleblowers. For example, in 2020, 40% of award recipients were corporate outsiders. Both U.S. citizens and non-citizens are eligible for awards as well (e.g., a non-citizen in a foreign country can receive a whistleblower award). Multiple whistleblowers can also submit information jointly, combining their knowledge to provide more valuable information to the SEC.
For certain individuals (e.g., compliance personnel) special rules may apply governing award eligibility. However, in many cases these individuals can still qualify for an award. Experienced counsel can address these nuances.
What if the SEC is Already Investigating a Company or Individual?
In many cases, whistleblowers may find themselves submitting information to the SEC after a government investigation has already begun. Even if the government is already on the trail, whistleblowers who voluntarily submit valuable information that materially adds to the SEC’s case can still be eligible for an award. In fact, the largest single whistleblower award in history (which amounted to $279 million) was issued to a whistleblower who submitted information to the SEC while an investigation was already ongoing.
This is consistent with the policy aims of the SEC Whistleblower Program. Even when the government is already looking into misconduct, a whistleblower who knows more than the government can assist with, and even expand, an existing investigation
What is Original Information?
Whistleblowers must submit so-called “original information” in order to be eligible for an award. The SEC whistleblower program defines “original information” to mean that the information must meet certain criteria. Chief among them is the requirement that the information must be derived from the whistleblower’s independent knowledge or independent analysis (independent analysis may be based on public information).
A whistleblower is not required to have first-hand knowledge of the wrongdoing either (e.g., a whistleblower may gain “original information” from social interactions). In addition, the SEC must generally not have already known of the information from some other source. So, if another whistleblower has already apprised the SEC of the same information, then the information would generally not qualify as “original information.” Accordingly, time can be of the essence when filing an SEC whistleblower tip.
Do All SEC Whistleblower Tips Lead to an Award?
No. Each year, the SEC receives thousands of tips from whistleblowers. In fact, the SEC received over 12,300 tips from whistleblowers in fiscal year 2022. The SEC pursues only a small number of whistleblower tips and issues awards to an even smaller number of whistleblowers. That makes submission of a forceful whistleblower tip even more critical.
SEC whistleblowers should endeavor to present their information in the most complete and compelling manner possible in order to increase the likelihood that the SEC will take up the matter. Experienced whistleblower attorneys can aid in presenting the whistleblower’s information to the SEC, interfacing with regulators, and making a claim for an award.
How Large are SEC Whistleblower Awards?
Awards under the SEC Whistleblower Program vary, but the amount awarded is based on the amount of sanctions recovered through an SEC enforcement action – between 10% and 30% of the SEC’s recovery. Whistleblowers may also be eligible for awards for so-called “related actions. Related actions are successful actions pursued by certain other governmental entities which sufficiently relate to the initial, successful SEC tip and where the SEC itself obtains $1 million or more in sanctions in the underlying SEC action.
SEC awards can be very large. The average SEC whistleblower award is approximately $4.8 million. However, in exceptional cases, awards can eclipse $100 million (the largest award to date being $279 million). While there is great variance among whistleblower awards, even the average successful SEC whistleblower receives substantial compensation. Awards are increasing too, showing a sharp uptrend in recent years.
SEC Whistleblower Awards by Year (2011-2022)
TOP 3 LARGEST SEC WHISTLEBLOWER AWARDS
- $279 Million (2023): In 2023, the SEC issued the largest single whistleblower award in history (under any government program). While SEC awards are reported anonymously, various news outlets reported that the award was issued to an individual who blew the whistle on Foreign Corrupt Practices Act violations (bribery of government officials) involving Swedish telecom giant Ericsson.
- $114 Million (2020): The SEC issued an award to a single whistleblower who reported his or her concerns internally before relaying the allegations to the SEC.
- $110 Million (2021): The SEC issued a $110 million award to a single whistleblower. A second whistleblower received $4 million arising from the same case. This case emphasizes the value in being the first to file a whistleblower claim.
Can I Be Retaliated Against for Submitting a Tip to the SEC?
The Dodd-Frank Act establishes that an employer cannot retaliate against an employee for submitting a complaint, tip, or referral to the SEC under the whistleblower program. If an employee is subject to such retaliation, then he or she may file a lawsuit against his or her employer. An employee that has faced unlawful retaliation can seek reinstatement to his or her position (if he or she has been fired or demoted); twice the monetary damages suffered; and attorney’s fees and costs.
Not only does the Dodd-Frank Act allow one to blow the whistle anonymously, but the law also sets out that the SEC, subject to certain exceptions, cannot reveal information that would reasonably be expected to disclose the identity of an SEC whistleblower. This provides yet another level of protection for securities whistleblowers.
Can SEC Whistleblowers Use an Attorney?
Yes. SEC whistleblowers can and should employ capable counsel. Experienced whistleblower attorneys can prepare the submission to, and interact with, the SEC which can increase the odds that the SEC pursues the case. Given the complex nature of the securities laws and related violations, SEC whistleblower attorneys can ensure that the whistleblower’s information is presented to the government in a compelling manner that shows how the laws have been violated. Counsel can take steps to ensure that the whistleblower’s information is submitted in a procedurally and substantively appropriate manner that avoids technical missteps and later advocate for the client during the award process.
Counsel can work to reduce the risk of retaliation, and, if retaliation occurs, obtain relief under the anti-retaliation provisions of the whistleblower law.
Pietragallo Gordon Alfano Bosick & Raspanti LLP has represented whistleblowers for over 32 years and knows how to present whistleblower tips in a compelling and effective manner. Further, we can advocate on your behalf throughout the SEC investigation process and zealously pursue any monetary awards should the tip result in an eligible resolution.
Can I Blow the Whistle Anonymously?
As long as you retain an attorney to submit information to the SEC, then you can submit your information anonymously and remain eligible for an award. If you do not retain counsel, then you cannot submit your information anonymously and receive an award.