Advocacy in Action: How an SEC Program Inspired International Reform
What the SEC whistleblower program shows is that empowering private individuals to stand up and speak out makes integrity an organization's most prized asset—and how much of a difference it makes when the public sector protects and supports the exercise of that integrity.
March 28, 2019 at 02:30 PM
6 minute read
It's been a decade since the arrest of Madoff and the collapse of Lehman Brothers, two events that awakened us to the fragility of the markets and the critical importance of doing our utmost to protect them. As its response to this wake-up call, Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act. Among its vast array of financial reforms, the Act directed the SEC to establish a whistleblower program by which it could pay significant bounties to individuals whose tips led to successful enforcement actions.
I was deeply involved in the development of the SEC whistleblower program during my tenure at the Commission. It was exciting to be part of this project, to create a new program that could trigger a tectonic shift in securities enforcement. Congress left most of the program details to SEC rulemaking, so as soon as Dodd-Frank was passed, we got to work. A talented team from across the agency collaborated on crafting the rules that structured the whistleblower program, with a focus on its three pillars—monetary awards, employment protections and the ability to report anonymously. Even after the rules were in place, and despite the fact that we'd spent hundreds of hours trying to anticipate every possible issue or scenario, the program has continued to evolve over the years.
Unlike many government initiatives, the program resists being politicized, and its tremendous success cannot be denied. It had bipartisan support in the legislative hopper and, by all accounts, the high quality of whistleblower submissions has enabled the Commission to pursue big cases more efficiently and effectively. Hundreds of millions of dollars in ill-gotten gains have been returned to victims, all the while costing the American taxpayer nothing. Since its first award in 2012, the Commission has paid out more than $326 million to whistleblowers and has levied more than $1.7 billion in monetary sanctions in whistleblower-assisted enforcement actions.
Another measure of success relates to the program's impact beyond the halls of the SEC. In crafting the program, we were mindful that whistleblower submissions might well contain original information that could drive parallel proceedings before other agencies. We collaborated at length with colleagues across the regulatory and enforcement paradigm and consulted with them to address how best to handle related actions. To date, many SEC whistleblower cases have spurred actions before other agencies such as the IRS, DOJ, state insurance commissions and attorneys general offices.
Beyond that, I'm not sure we ever considered that our program, born from such crisis in the markets and devastation to investors, might become an enforcement model for other nations. It has.
One example is Australia, which has made sweeping changes in whistleblower reform. For many years, the Australian Securities and Investments Commission (ASIC) considered ways to shore up a whistleblower regime that could address ethical breaches and reports of whistleblower maltreatment. Parliament ultimately conducted a formal inquiry into whether a system like the SEC whistleblower program should be introduced in Australia. Following numerous visits down under, my partner was formally invited and provided testimony to the Joint Parliamentary Committee on Corporations and Financial Services. After a great deal of work on the part of Australia's legislators, last month, the Parliament enacted the whistleblowing reforms, modeling key provisions from the US model such as the ability to report misconduct anonymously and to offer employee whistleblowers meaningful protection from retaliation or reprisal.
In 2015, the Ontario Securities Commission (OSC) convened hearings to discuss proposals for a new whistleblower program designed to encourage individuals to report violations of securities laws. That year, Labaton Sucharow was again called upon to provide testimony about the structure and success of the SEC whistleblower program and its possible application. One year later, a new program was implemented in Ontario – with a framework quite similar to the US. The Canadian program includes significant monetary bounties (though the scale is less than the 10-30 percent of sanctions available under the US model and there is a $5 million ceiling), employment protections, and the ability to report anonymously if working with an attorney. Last year, the OSC reported that the whistleblower program was receiving approximately two tips per week. Approximately 10 percent of all tips were referred to enforcement for examination and possibly a formal investigation. Just last week, the OSC announced its first bounties, $7.5 million paid to three whistleblowers who courageously reported violations of the law.
For years, the United Kingdom has considered how best to encourage the reporting of misconduct, particularly following scandals at Lloyds, RBS, Barclays, Standard Chartered, among many others. With interest in the SEC model, various regulators crossed the pond to meet with officials at the SEC, CFTC and DOJ. The US authorities allowed staff from the UK to camp out stateside, share the desk and observe the program in action. While there was a great deal of theoretical interest, in practice, some components were hard to reconcile. A 2014 report made clear that regulators in the UK were opposed to bounties from the get-go, seeing it as inappropriate to award bounties for conduct they saw as a public duty. The “rules” the UK regulators ultimately proposed focused on appointing a manager to oversee the reporting process, providing training to staff and creating various mechanisms for the reporting of misconduct. While to us these measures may seem tepid as compared to a thriving US program that brings malefactors to justice, we hear rumblings that UK regulators may again revisit the SEC model.
The SEC whistleblower program is not perfect. No government program ever will be. But there is a lasting sense that this time we got it right. Beyond the awards paid, the penalties that have been collected, the investors who have benefited … one of the most remarkable components of the US program is how an employee is changed when she can safely tell the truth. How that can change one workplace, then another, then a community and a citizenry. What the SEC whistleblower program shows is that empowering private individuals to stand up and speak out makes integrity an organization's most prized asset—and how much of a difference it makes when the public sector protects and supports the exercise of that integrity.
Richard A. Levine is an SEC whistleblower lawyer with Labaton Sucharow. A distinguished public servant, he spent more than three decades at the Securities and Exchange Commission.
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