SEC LogoOn July 19, 2016, the SEC issued an order upholding the SEC Claims Review Staff’s (“CRS”) Preliminary Determination denying three claims for whistleblower awards.  The SEC’s order explains how the claimants’ bounty requests were properly denied for failing to meet the SEC’s eligibility requirements.  As we have previously discussed here, all but a few whistleblower tips fail to lead to any award; this order serves as a reminder that a whistleblower’s information must have, in the SEC’s view, “significantly contributed to the success of [its] action.”  17 C.F.R. § 240.21F-4(c).

Background

The “Covered Action” addressed in the SEC’s order “arose out of two separate investigations, one by Enforcement staff in the Commission’s Home Office and the other by Enforcement staff in the Denver Regional Office (“DRO”) into” unidentified conduct.  (Order at 2.)  These two investigations were opened “in response to media reports and inquiries made by investigative staff, and not in response to any tip or complaint submitted by any of the Claimants.”  (Id.)  Although the order is heavily redacted, it states that “media reports led DRO staff to shift the focus of its investigation entirely to” other unidentified conduct.  (Id.)  The two investigations then concluded but the order does not disclose the details.

The SEC’s Denial of Claimants’ Claims

Although sixteen claimants initially sought awards relating to the Covered Action, only three individuals timely filed appeals of the denial of their claims.  The SEC’s order first addressed Claimant 13 and explained that although the DRO investigative staff received and reviewed information from this claimant, the information “was not used in and did not contribute to the investigation.”  The DRO staff had already opened the investigation at the time this claimant provided information, so the claimant did not provide information that caused the SEC to “commence an investigation.”  See 17 C.F.R. § 240.21F-4(c)(1).  Further, the order states that the DRO’s investigation shifted its focus based on media reports, and it appears the claimant’s information related to the conduct at issue in the old investigation, not the new investigation that in led to the Covered Action.  The SEC notes that the claimant’s submission “fails to identify any communications with Enforcement staff responsible for the underlying investigation that led to the Covered Action.”  Thus, Claimant’s request for an award was properly denied.

The SEC also ruled that the CRS properly denied the claims of two other whistleblowers because there was no evidence that the information they provided was sent to the investigators responsible for the Covered Action.

Implications

This serves as reminder that the SEC will continue to analyze critically all requests for whistleblower awards under the program.  In situations where an investigation is already underway, claimants must provide evidence that their information significantly contributed to the success of the action to obtain an award.  Merely alleging that some information was provided to an SEC office, as occurred here, is plainly insufficient, in the SEC’s view, to warrant a whistleblower bounty payout.

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Photo of Lloyd B. Chinn Lloyd B. Chinn

Lloyd B. Chinn is a partner in the Labor & Employment Law Department and co-head of the Whistleblowing & Retaliation Group. He litigates employment disputes of all types before federal and state courts, arbitration tribunals (e.g., FINRA, JAMS and AAA), and before administrative…

Lloyd B. Chinn is a partner in the Labor & Employment Law Department and co-head of the Whistleblowing & Retaliation Group. He litigates employment disputes of all types before federal and state courts, arbitration tribunals (e.g., FINRA, JAMS and AAA), and before administrative agencies in New York and across the country. Lloyd’s practice ranges from litigating compensation disputes to defending whistleblower, discrimination and sexual harassment claims. Although he represents employers in a wide range of industries, including law, insurance, health care, consulting, media, education and technology, he focuses a substantial portion of his practice on the financial services sector. He has tried to final verdict or arbitration award substantial disputes in this area.

Due to Lloyd’s litigation experience, clients regularly turn to him for advice regarding the full range of employment matters, including terminations, whistleblower policy and procedure, reductions in force, employment agreements, and employment policies. For example, in the wake of the financial crisis, he has counseled a number of firms through reductions in force and related bonus and deferred compensation disputes. Lloyd has also been retained to conduct internal investigations of allegations of workplace misconduct, including claims leveled against senior executives.

Lloyd has represented global businesses in matters involving Sarbanes-Oxley and Dodd-Frank whistleblower claims. He has taken an active role in the American Bar Association on these issues, currently serving as Co-Chair of the Whistleblower subcommittee of the ABA Employee Rights and Responsibilities Committee. Lloyd has spoken on whistleblowing topics before a numerous organizations, including the American Bar Association, ALI-ABA, Association of the Bar of the City of New York, and New York University School of Law. He has testified twice before Congressional subcommittees regarding whistleblower legislation and has also published blog postings, articles and client alerts on a variety of topics in this area, including the Dodd-Frank Act’s whistleblower provisions. Lloyd is a co-editor of Proskauer’s Whistleblower Defense Blog, and he has been widely quoted by on whistleblower topics by a number of publications, including the New York Times, the Wall Street Journal, the National Law Journal and Law 360.

Lloyd has also become active in the International Bar Association, presenting on a variety of subjects, including: the #MeToo movement, the COVID-19 pandemic and employment law, and cross-border harmonization of employment provisions in transactions. Lloyd also hosts a quarterly roundtable discussion among financial services industry in-house employment lawyers. He has also published articles and given speeches on a variety of other employment-law topics, including non-solicitation provisions, FINRA arbitration rules, cross-border discovery, e-discovery, and the use of experts.

Photo of Andrew Sherwood Andrew Sherwood

Andrew M. Sherwood is an associate in the Labor & Employment Law Department and a member of the Employment Litigation & Arbitration Group. His practice focuses on defending employers in state and federal court lawsuits and alternative dispute resolution forums against claims of…

Andrew M. Sherwood is an associate in the Labor & Employment Law Department and a member of the Employment Litigation & Arbitration Group. His practice focuses on defending employers in state and federal court lawsuits and alternative dispute resolution forums against claims of discrimination, retaliation, wrongful termination, defamation and breach of contract.

From 2010 through 2012, Andrew served as an honors trial attorney for the U.S. Equal Employment Opportunity Commission, where he litigated anti-discrimination claims against private employers and managed administrative investigations.