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Dodd-Frank Whistle-Blowers a Boon for Outside Counsel
The American Lawyer
Last year the Securities and Exchange Commission received 3,001 tips of fraud and other financial improprieties under the Dodd-Frank Wall Street Reform and Consumer Protection Act. The act, which was enacted in 2010, gives whistle-blowers 1030 percent of fines collected by the government that are more than $1 million. So far, however, there's only been one payout. Last August, an undisclosed whistle-blower received an initial payout of $50,000, a figure that will increase as more of the sanction is paid. But more payouts are expected to follow. While the SEC declined to provide the specific numbers of the tips it has received that could result in awards, according to its annual report, 143 enforcement judgments and orders issued in fiscal year 2012 may qualify under the agency's guidelines.
In the meantime, however, the provisions have already proven lucrative for one group: attorneys at Am Law 200 firms, who have been brought in to represent companies facing these government actions, as well as companies that are taking proactive measures to avoid the ire of the government. Crowell & Moring, Foley & Lardner, Orrick, Herrington & Sutcliffe, and Seyfarth Shaw are among the firms that have experienced an increase in whistle-blower-related engagements as a result of the new law.
"Dodd-Frank has led to a whole new wave of matters because it discourages people from using a company's internal reporting process, and encourages them to go directly to the SEC regarding any possible wrongdoing," says Mike Delikat, chair of the employment law practice at Orrick, Herrington & Sutcliffe. The specter of the financial bounties (and the recognition that they serve as a powerful enticement to employees) has made many businesses more likely to bring in lawyers even when there isn't a formal tip in front of the SEC. As a result, companies are hiring lawyers to handle such matters as reviewing internal reporting processes and investigating employee allegations. "Clients have become more receptive to engaging outside counsel and, if it's a close call, to self-reporting possible disclosure violations or Foreign Corrupt Practices Act violations to the SEC," says Daniel Zelenko, a partner in Crowell & Moring's white-collar and regulatory enforcement practice.
Lisa Noller, a Chicago-based partner in Foley & Lardner's government enforcement and white-collar practice, says that she's handling "several internal matters where the issue is whether an employee has a valid claim and could be a whistle-blower." Noller estimates that about 60 percent of her practice these days is spent handling whistle-blower-related matters.
To better service these matters, several firms have established multidisciplinary groups. At Foley, the False Claims Act and Dodd-Frank whistle-blower practice includes eight partners and 12 associates with not only white-collar expertise, but also employment, corporate governance, and securities litigation experience.
Similarly, Orrick has a whistle-blower task force that Delikat established in July 2010. It now encompasses 60 lawyers in a variety of practices. In 2012 about 40 firm lawyers worked on whistle-blower-connected matters, an increase from the 10 mostly employment practice lawyers that were involved in whistle-blower matters at the firm in 2010.
Am Law firms are also handling several whistle-blower cases involving Dodd-Frank that are working their way through the courts.
Fulbright & Jaworski is representing G.E. Energy (USA) LLC in a case brought by a U.S.based employee working in Jordan who alleges that he was fired after informing company officials about possible FCPA violations. Last June, a judge in the Southern District of Texas held that the antiretaliation provision in Dodd-Frank does not apply to an employee in a foreign location. And in another Dodd-Frank case, Squire Sanders and Seyfarth Shaw are representing Telvent GIT S.A. and a company official against a former employee at one of its subsidiaries who alleges that he was terminated because he objected to a plan to use fraudulent information in a local government contract bidding process.
As the case law continues to develop, and more tips to the SEC turn into full-blown government investigations, lawyers who practice in this area expect that demand will continue to increase. "This is an area of the law that is evolving and growing," says Dov Kesselman, a partner at Seyfarth Shaw. "Law firms will be evolving along with it."
This article originally appeared in The American Lawyer.