By promising anti-retaliation protection and offering the prospect of significant monetary awards, the U.S. Securities and Exchange Commission whistleblower program1 incentivizes individuals to come forward in an effort to ferret out securities law violations. While the SEC has touted the program as a success,2 certain aspects have sparked on-going debate within the legal and business communities. Whether whistleblowers who engaged in culpable conduct should be eligible for monetary awards, as they are now, is one area of contention.
The core arguments on both sides of this debate are fairly straightforward. On the one hand, if culpable whistleblowers are not eligible for monetary awards, the pool of potential whistleblowers best positioned to report wrongdoing may be diminished and discovery of misconduct may be delayed or never occur.3 Others argue that the program should not reward—or worse, incentivize—wrongdoers by allowing them to cash in by reporting their own misconduct.4
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