It’s not easy being a whistleblower. Although huge sums have been set aside to reward those who report wrongdoing in the financial markets—$739 million is sitting there, waiting to be paid out—awards to date have barely dented those accounts. According to a newly released report by Davis Polk & Wardwell, less than $16 million of that sum has been paid by the Securities and Exchange Commission and the Commodities Futures Trading Commission. And whistleblowers alleging retaliation may not be faring well either. The report notes that the “vast majority” of retaliation claims filed under The Sarbanes-Oxley Act of 2002 are dismissed or withdrawn.
The 20-page report looks at the “alphabet soup” of whistleblower protection provisions under Sarbanes-Oxley, the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, and the Consumer Financial Protection Act. While Davis Polk doesn’t take a position on the wisdom or effectiveness of these whistleblower programs, the data it presents shows a trickle of awards, while many whistleblowers are having a hard time prevailing in retaliation cases.
For instance, for nearly three years the SEC has run an Office of the Whistleblower, which was established under Dodd-Frank. Staffed by nine lawyers, it can give an eligible whistleblower 10-30 percent of the money collected in an enforcement action, and it has $439 million set aside for these payments. According to the SEC’s most recent annual report for this program, the office got more than 3,000 tips for the second straight fiscal year. Not every tip leads to a viable case: In these three years the agency has taken action in 431 cases in which whistleblowers could come forward and apply for awards. Out of those cases, it has made eight awards totaling $15.8 million. One $14 million award, from fiscal year 2013, accounts for most of that amount, leaving an average of $267,000 for the other seven awards.
(To protect the confidentiality of whistleblowers, the SEC doesn’t reveal the identity of the individual getting the money or the company involved.)
The SEC declined to comment.
The Commodities Futures Trading Commission also has a whistleblower program, and has set aside $300 million to pay awards. The CFTC has received at least 200 whistleblower claims and has paid out one, according to Davis Polk. On May 20 it announced its first award of $240,000. We reached out to the agency for comment but did not hear back.
Davis Polk partner Antonio Perez-Marques, who helped author this report, says Dodd-Frank sets a high bar for rewards. The most common reason the SEC gives for denying an award, he says, is that it determined that the claimant didn’t submit original information. He notes, however that the SEC has indicated that it expects “big number” payouts in the future, so this trend may change.
When Sean McKessey, the chief of the SEC’s Office of the Whistleblower, talked to the Litigation Daily in November 2012, he said the award fund was “burning a hole in his pocket,” and he hoped to pay more money soon. He explained then that the program was still in its early days, and “we need to be patient and allow these things to play out.”
McKessey wasn’t available to talk Tuesday, but one prominent plaintiffs lawyer who represents whistleblowers says he’s satisfied with the SEC’s program so far, despite the fairly small number of awards, and maintains it’s still too soon to judge its effectiveness. “They’re making pretty good progress,” says Eric Havian of Phillips & Cohen. “Compared to the IRS whistleblower program, they’re doing fabulously well.” He adds, “These tend to be complex cases that take a while to resolve, and the award determination process can take a while.”
Havian commends McKessey for being a “tremendous proponent” of the program. The plaintiffs lawyer even predicts that the SEC will eventually wish it had a bigger pot for awards. “I think we’ll look back at that amount and say, ‘Wow. That wasn’t enough.’”
Davis Polk also looked at laws that prohibit employers from punishing workers for whistleblower activity. Retaliation claims made under Sarbanes-Oxley must first be filed with the U.S. Department of Labor, while claims under Dodd-Frank can go directly to federal court. According to Davis Polk’s report, the DOL reported 1,846 completed actions from fiscal years 2005 to 2013, and a mere 20 were determined to have merit, while 100 were listed as settled. “The vast majority of SOX antiretaliation claims are dismissed or withdrawn,” the report stated. The firm did not present statistical data on the fate of cases filed in federal court under Dodd-Frank. Plaintiffs lawyer Havian says the Department of Labor figures can be misleading: If the DOL hasn’t made a final determination in a case in 180 days, the plaintiffs can file the case in federal court. “I think the vast majority of these cases go to court,” he says. He adds, however, that he’s not aware of any large awards or settlements in retaliation cases.