SEC Whistleblower Awards Rise, Surpassing $100 Million

The amount awarded to whistleblowers by the Securities and Exchange Commission has exceeded the $100 million level, with some awards as large as $30 million.

The number of awards has also increased as the SEC has taken additional steps to address "any perceived retaliation" from employers, said Joel Green, partner at WilmerHale, a Washington, D.C.-based securities and litigation law firm.

The SEC started its whistleblower program in 2011 and has awarded over $111 million to 34 whistleblowers.

"The program is becoming more firmly entrenched and the SEC has taken steps reflecting that it won't tolerate any retaliation against whistleblowers," he said. "Whistleblowers are more comfortable with coming forward to the commission and see the program as a more viable opportunity."

In addition to cases of insider trading, the SEC investigates by issuing subpoenas to request information for accounting and financial statement fraud cases such as not reporting figures correctly to the public or paying bribes to foreign actors, Green said. Investigations can be costly and extensive and last for years.

"If someone goes to the SEC with unique and useful information to settle a matter or the commission files suit and it results in a monetary sanction, the whistleblower can obtain a percentage," he said.

Whistleblowers can earn 10% to 30% of the money collected when the monetary sanctions exceed $1 million.

How Companies Should Address Issue

Whistleblowers are turning to the SEC instead of management where the problems can be addressed internally. Employees need to know that speaking out means they will not be retaliated against or lose their jobs, otherwise they may go straight to the commission rather than providing the company an opportunity to address the issue.

Companies should ensure they have the appropriate policies and procedures in place along with sufficient training for employees to make sure they create an environment where complaints are addressed, Green said.

"They need to take whistleblower complaints seriously and not create an atmosphere where employees have no outlet other than to take it to the SEC," he said. "Management should train employees and supervisors how to deal with complaints and be more attuned to the issues."

Employees who feel they are being marginalized or not taken seriously by managers might opt to go to the SEC, because they have an outlet and there is the potential to get compensated for alerting authorities to the underlying alleged misconduct.

"Some complaints have more merit than others and companies need to get to the bottom of them to see if they are legitimate or if it is a less serious issue such as a personality difference or some workplace gripe that is spilling over," Green said.

The right program at a company will identify and address the legitimate issues versus the ones which don't raise legal or compliance concerns, he said.

"Not every complaint from a whistleblower represents a bonafide legal or compliance issue," Green said.

In the past, whistleblowers were forced to remain silent and were viewed as pariahs, said Philip Hilder, a white collar criminal defense attorney who is founder of Hilder & Associates in Houston and a former federal prosecutor who has represented whistleblowers in Enron, Countrywide, News Corp., Imperial Sugar, Dynegy and the Jack Abramoff scandals. Nowadays, they have become a protected class.

"The SEC has elevated whistleblowing to new heights," he said. "No one sets out to be a whistleblower. In essence, the SEC program turns ordinary employees into undercover detectives if they see an impropriety and turn in bad behavior."

Companies must address this issue and make sure their culture respects and listens to whistleblowers and adheres to a code of conduct with a compliance department that is open and receptive to them.

"They need to face a new reality," Hilder said. "They need to be responsive and make sure their policies are not just on paper."

In many cases, employees want to be heard and their first line of defense is to bring it to management's attention.

"Managers should be responsive and conduct an internal investigation and either provide feedback or correct the situation," he said. "If they fail and don't have that openness about them, its quite foreseeable that employees wont feel loyal to the company and will go immediately to external sources and report it."

Companies need to "double down on a commitment to compliance to foster a climate of transparency," said Greg Keating, a partner of Boston-based Choate Hall & Stewart. This strategy allows smaller problems to be identified before they emerge as major liability risks.

"Companies are implementing new compliance solutions, including training at all levels to encourage reporting and ensure zero tolerance for retaliation against whistleblowers," he said.

The U.S. Department of Labor, which oversees over 20 whistleblower statutes including the Sarbanes-Oxley Act, is poised to issue guidelines that will "underscore the hallmarks of an effective compliance program and one which fosters transparency and forbids retaliation for good faith reporting," Keating said.

Management whose goal is to eliminate fraud, waste and abuse should encourage employees to speak up by setting up an internal hotline and not view whistleblowers as a negative aspect of the workplace, said Dan Zitting, chief product Officer at ACL, a Vancouver, Canada-based anti-fraud software and consultancy firm, and former auditor at Ernst & Young.

Employees are the leading source of tips for fraud within an organization, consisting of 40%, according to a 2014 report by the Association of Certified Fraud Examiners. Fraud claims make up an estimated 5% to 10% of revenue at most organizations, so fraud detection and prevention should be a top priority across the board, he said. 

"To avoid paying out millions of dollars in whistleblower rewards, companies can use advanced data analytics to detect fraud at its source," Zitting said. "In today's era of big data, nearly any fraudulent activity is traceable and can be detected in real time. There is always a footprint in the data and if the company's enterprise software is properly calibrated and aligned with anti-fraud software, anything from an employee's odd log-in behavior to a unauthorized document adjustment can be flagged and reviewed almost immediately - before an employee calls it in."

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