2nd Circuit Nixes Bids for Whistleblower Awards Stemming From $55M Deutsche Bank Settlement
The three-judge panel agreed with regulators that the evidence presented merely repeated information already at the disposal of investigators.
November 08, 2019 at 03:47 PM
4 minute read
The original version of this story was published on New York Law Journal
A Manhattan federal appeals court on Friday denied whistleblower awards for three men who claimed to have provided crucial information that led to a $55 million settlement to resolve allegations Deutsche Bank AG hid $1.5 billion in losses during the 2008 financial crisis.
The ruling, from the U.S. Court of Appeals for the Second Circuit, upheld the U.S. Securities and Exchange Commission's determination that the owners of a Toronto-based consulting firm, and a third, unnamed petitioner, did not provided original information that led to the successful enforcement action in 2015.
All three petitioners applied for whistleblower status under the Dodd–Frank Wall Street Reform and Consumer Protection Act, which created a mechanism to compensate individuals who report securities fraud.
Of nine claimants who came forward with information regarding misstatements Deutsche Bank made regarding the market value of certain credit default swap transactions, the SEC ultimately awarded $8 million each to two people who provided "highly credible" information deemed to be "invaluable."
One anonymous petitioner claimed the SEC overlooked his submissions and argued he should have received part of the award.
The three-judge panel, however, agreed with regulators that the evidence he presented merely repeated information already at the disposal of investigators, and found him to not to be a credible source for the probe.
The 28-page decision cited assessments that the man had "difficulty articulating credible and coherent" information to enforcement staff and appeared to be under "great duress" from a personal situation he was experiencing at the time. According to SEC investigators, the man presented evidence in a "wet brown paper bag," and his files were "jumbled and disorganized."
David Kovel, who represented the would-be whistleblower, did not contest the SEC's determination that his client's information was duplicative but said he should still be rewarded for his contribution, which preceded the other submissions.
But Judge Robert D. Sack of the U.S. Court of Appeals for the Second Circuit said the request ran contrary U.S. law by seeking the release of Federal Treasury funds not authorized by statute. According to the petitioner, Sack said, all a whistleblower has to do is provide "some useful information to the SEC first, in any form, no matter how impenetrable."
Such an approach might incentivize sloppy submissions that were not helpful in prosecuting securities law violations, Sack said.
"The SECʹs interpretation, by contrast, strikes a sensible balance between care and timeliness, one that is more consistent with the whistleblower programʹs purpose: A whistleblower might still be rewarded for being the first to bring incriminating information to the SECʹs attention, but only if that information is contained in a credible, and ultimately useful submission," he wrote.
He was joined in the opinion by Judges Amalya Kearse and Debra Livingston.
Kovel was not immediately available for comment Friday.
The panel also rejected similar petitions from Colin Kilgour and Daniel Williams, owners of the consulting firm Kilgour Williams Group, which provided a detailed report on behalf of one of the whistleblowers. By the time the pair submitted their filing, though, it didn't outline any new information for investigators.
Kilgour, reached by phone Friday, said he was "obviously disappointed" with the ruling but did not immediately offer any further comment. Both Kilgour and Williams represented themselves on appeal the appeal.
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