On June 12, 2013, the SEC issued the second-ever whistleblower bounty award pursuant to Section 922 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank) in connection with SEC v. Andrey C. Hicks and Locust Offshore Management, LLC., No. 11-cv-11888 (D. Mass. 2011). This bounty could be the tip of the iceberg, and is particularly noteworthy because the award was divided among three individuals and the fourth tipster was denied an award.

Background

In October 2011, the SEC filed an enforcement action against the defendants in Locust alleging fraud in connection with the offer and sale of securities. In March 2012, the U.S. District Court for the District of Massachusetts entered judgment in favor of the SEC after default was entered against the defendants. The Court held both defendants jointly and severally liable for disgorgement and prejudgment interest in the amount of $2,512,058.39, and imposed a civil penalty against each of the defendants in the amount of $2,512,058.39. The monetary sanctions, defined by the Securities and Exchange Act of 1934 (Exchange Act) as “any monies, including penalties, disgorgement, and interest, ordered to be paid,” 15 U.S.C. §　78u-6(a)(4)(A), totaled $7,536,175.17.

Four individuals anonymously submitted whistleblower tips to the SEC, and three were awarded 5% each of the monetary sanctions collected. The fourth individual was denied a bounty because some of the information was first provided to the SEC before July 21, 2010 (the date after which Dodd-Frank specifies that information is considered “original information” in the context of whistleblowing) and the information provided after July 21, 2010 did not cause the SEC to open an investigation or contribute to the success of the enforcement action in the Locust matter.

The award to each whistleblower on the amount collected was $376,808.76, with a potential aggregate award of $1,130,426.28.In this regard, it should be noted that Dodd-Frank permits an award to one or more whistleblowers in an aggregate amount of no less than ten percent (10%) and no more than thirty percent (30%) of the monetary sanctions imposed. 15 U.S.C. §　78u-6(b). The whistleblowers in Locust were awarded an aggregate of fifteen percent (15%) of the monetary sanctions levied.

Implications

While this second bounty provided little information about the rationale for the award percentage (not strikingly different from the first-ever bounty award), the SEC’s decision not to award the maximum amount permissible—coupled with its outright denial of an award to the fourth tipster—suggests the SEC was careful and took a deliberative approach. Additionally, this second bounty may encourage groups of employees to step forward and seek awards, a dynamic on which many have not focused.

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Photo of Steven J. Pearlman Steven J. Pearlman

Steven J. Pearlman is a partner in the Labor & Employment Law Department and Co-Head of the Whistleblowing & Retaliation Group and the Restrictive Covenants, Trade Secrets & Unfair Competition Group.

Steven’s practice covers the full spectrum of employment law, with a particular…

Steven J. Pearlman is a partner in the Labor & Employment Law Department and Co-Head of the Whistleblowing & Retaliation Group and the Restrictive Covenants, Trade Secrets & Unfair Competition Group.

Steven’s practice covers the full spectrum of employment law, with a particular focus on defending companies against claims of employment discrimination, retaliation and harassment; whistleblower retaliation; restrictive covenant violations; theft of trade secrets; and wage-and-hour violations. He has successfully tried cases in multiple jurisdictions, and defended one of the largest Illinois-only class actions in the history of the U.S. District Court for the Northern District of Illinois. He also secured one of only a few ex parte seizures orders that have been issued under the Defend Trade Secrets Act, and obtained a world-wide injunction in federal litigation against a high-level executive who jumped ship to a competitor.

Reporting to boards of directors, their audit committees, CEOs and in-house counsel, Steven conducts sensitive investigations and has testified in federal court. His investigations have involved complaints of sexual harassment involving C-suite officers; systemic violations of employment laws and company policies; and fraud, compliance failures and unethical conduct.

Steven was recognized as Lawyer of the Year for Chicago Labor & Employment Litigation in the 2023 edition of The Best Lawyers in America. He is a Fellow of the College of Labor and Employment Lawyers.  Chambers describes Steven as an “outstanding lawyer” who is “very sharp and very responsive,” a “strong advocate,” and an “expert in his field.” Steven was 1 of 12 individuals selected by Compliance Week as a “Top Mind.” Earlier in his career, he was 1 of 5 U.S. lawyers selected by Law360 as a “Rising Star Under 40” in the area of employment law and 1 of “40 Illinois Attorneys Under Forty to Watch” selected by Law Bulletin Publishing Company. Steven is a Burton Award Winner (U.S. Library of Congress) for “Distinguished Legal Writing.”

Steven has served on Law360’s Employment Editorial Advisory Board and is a Contributor to Forbes.com. He has appeared on Bloomberg News (television and radio) and Yahoo! Finance, and is regularly quoted in leading publications such as The Wall Street Journal.

The U.S. Chamber of Commerce has engaged Steven to serve as lead counsel on amicus briefs to the U.S. Supreme Court and federal circuit courts of appeal. He was appointed to serve as a Special Assistant Attorney General for the State of Illinois in employment litigation matters. He has presented with the Solicitor of the DOL, the Acting Chair of the EEOC, an EEOC Commissioner, Legal Counsel to the EEOC and heads of the SEC, CFTC and OSHA whistleblower programs. He is also a member of the Sedona Conference, focusing on trade secret matters.

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