SEC Adopts Amendments To Whistleblower Program Rules

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The Securities and Exchange Commission has voted to adopt numerous amendments to the rules governing its whistleblower program. See https://www.sec.gov/news/press-release/2020-219

The whistleblower program serves as a significant tool for the Commission to encourage individuals to come forward with information regarding suspected security fraud. As set forth in the SEC’s press release, “The amendments to the whistleblower rules are intended to provide greater transparency, efficiency and clarity, and to strengthen and bolster the program in several ways.”

Notably, the SEC Chairman Jay Clayton stated the “rule amendments will help us get more money into the hands of whistleblowers, and at a faster pace.” Chairman Clayton further stated, “Experience demonstrates this added clarity, efficiency and transparency will further incentivize whistleblowers, enhance the whistleblower award program and benefit investors and our markets.” Given the emphasis on incentivizing whistleblowers, employers may see an uptick in whistleblower activity.

The SEC’s press release contains a list of amendments, as well as a link to the Final Rule. Highlights taken from the SEC’s press release include:

  • Awards:
    • “For awards where the statutory maximum award amount for the covered action and any related actions is in the aggregate $5 million or less, the Commission is adding Exchange Act Rule 21F-6(c) to provide a presumption that the Commission will pay a meritorious claimant the statutory maximum amount where none of the negative award criteria specified in Rule 21F-6(b) are present, subject to certain limited exceptions.”
    • “For awards over $5 million, the Commission will continue to analyze the award factors identified in Rule 21F-6 and issue awards based on the application of those factors. Based on the historical application of the award factors, if none of the negative criteria specified in Rule 21F-6(b) are present, the award amount would be expected to be in the top third of the award range.”
  • Whistleblower Definition:
    • “In response to the Supreme Court’s decision in Digital Realty Trust, Inc. v. Somers, the Commission is modifying Rule 21F-2 to establish a uniform definition of “whistleblower” that will apply to all aspects of Exchange Act Section 21F—i.e., the award program, the heightened confidentiality requirements, and the employment anti-retaliation protections.”
      • “For purposes of retaliation protection, an individual is required to report information about possible securities laws violations to the Commission “in writing.” As required by the Supreme Court’s decision, to qualify for the retaliation protection under Section 21F, the individual must report to the Commission before experiencing the retaliation.”
      • “To be eligible for an award or to obtain heightened confidentiality protection, the additional existing requirement that a whistleblower submit information on Form TCR or through the Commission’s online tips portal remains in place, subject to the additional discretion of the Commission to grant waivers described below [in the Press Release].”
      • “Additionally, the Commission is issuing interpretive guidance defining the scope of retaliatory conduct prohibited by Section 21F(h)(1)(A), which includes any retaliatory activity by an employer against a whistleblower that a reasonable employee would find materially adverse.”
  • Frivolous Award Applications:
    • “To prevent repeat submitters from abusing the award application process, the rule permits the Commission to permanently bar any applicant from seeking an award after the Commission determines that the applicant has abused the process by submitting three frivolous award applications.”
    • “For the first three applications determined to be frivolous, the Office of the Whistleblower will notify a claimant of its assessment and give the claimant the opportunity to withdraw the application.”

For a more comprehensive list of amendments, as well as a link to the Final Rule, visit https://www.sec.gov/news/press-release/2020-219

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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