November 9, 2010, 1:35 pm

By PETER J. HENNING
Congress seems to love whistle-blowers.
The Dodd-Frank financial regulatory act makes that clear by requiring
the Securities and Exchange Commission and Commodity Futures Trading
Commission to pay at least 10 percent, and as much as 30 percent, of any
monetary penalties more than $1 million to those who provide “original
information” about a violation of the law.
The financial overhaul measure requires the agencies to set up whistle-blower programs by early next year.
The S.E.C., led by Mary L. Schapiro, released its proposal last week.
Unfortunately for businesses, the S.E.C. must comply with the
Congressional directive that puts the interest of attracting tips about
corporate wrongdoing ahead of the internal compliance programs that most
corporations set up under the Sarbanes-Oxley Act, which passed eight
years ago. For businesses, it looks like Congress may be willing to use
the new whistle-blower programs to undermine Sarbanes-Oxley.
Admittedly, most corporations grudgingly accepted the compliance
programs required by Sarbanes-Oxley Act, including the elaborate
reporting mechanisms that can involve reviews by the audit committee and
the entire board if there is credible information of significant
misconduct. The whistle-blower program does not negate Sarbanes-Oxley —
companies will still have to keep compliance programs in place, often at
a significant cost. But they may well fall into disuse now that
employees have a monetary incentive to go directly to the S.E.C.
The initial challenge for the S.E.C. will be to distinguish
information that is worth pursuing from mere speculation and conjecture,
or, worse, an effort to harm a company. The rule proposal estimates
that the S.E.C. will receive some 30,000 tips or complaints a year, and
about half will lead to the filing of the required document, Form
WB-DEC, which makes a person eligible to receive a payment if a
recovery is made based on the information.
The rule proposal tries to limit the number of spurious tips by
imposing what the S.E.C. calls “certain procedural requirements designed
to deter false submissions, including a requirement that information be
submitted under penalty of perjury, and requiring an anonymous
whistle-blower to be represented by counsel who must certify to the
commission that he or she has verified the whistle-blower’s
information.” How much these modest measures will deter questionable
whistle-blower filings is an open question.
Requiring a person to sign Form WB-DEC “under penalty of perjury” may
not be much of a deterrent because showing that someone intentionally
made an affirmative false statement, a requirement to prove perjury, is
difficult. In many instances the information provided will be vague or
subject to interpretation, so the threat of a perjury prosecution is
probably so low that it will not impede the flow of tips. In addition,
the number of people who will use a lawyer to assist in reporting
information will probably be fairly small, so this will not provide much
of a check on the potential deluge of tips.
Corporations are concerned that the program encourages employees to
bypass their compliance programs and go straight to the S.E.C. The
agency has acknowledged the potential conflict by encouraging corporate
employees to use internal reporting mechanisms while allowing them to
qualify for whistle-blower awards. The S.E.C. has also limited who can
be a whistle-blower if the information is obtained through a corporate
compliance program.
Lawyers, accountants and those responsible for corporate compliance
cannot qualify for an award because they do not have the “independent
knowledge” required to be a whistle-blower. This is a sensible
limitation because working in a compliance program should not be a means
to win a reward from the S.E.C. Nor should outside advisers be allowed
to benefit at the corporation’s expense by reporting information
received in the course of representing it.
Still, the proposed rules would not completely exclude employees
involved in corporate compliance from being whistle-blowers. These
employees can file a report and qualify for a monetary payout if a
company did not disclose information about its wrongdoing in a timely
manner or otherwise acted in “bad faith.” The S.E.C. takes a “never say
never” approach that preserves the possibility of receiving a tip from
any credible source.
For other employees, the S.E.C. rejected adopting a rule requiring
them to first utilize any internal reporting mechanism before providing
information, reflecting the Congressional suspicion about whether those
programs result in adequate self-reporting of violations. If an
employee reports information internally, then the company must act
within 90 days, while the employee can still go to the S.E.C. This
gives a company a narrow window to conduct an investigation and report
the results to the S.E.C., particularly if the accusation involved an
overseas operation and possible violations of the Foreign Corrupt
Practices Act for bribery of foreign officials.
The Dodd-Frank Act protects employees from retaliation, even if the
report does not trigger an investigation or result in an enforcement
action. The law prohibits a company from taking any steps to “discharge,
demote, suspend, threaten, harass, directly or indirectly, or in any
other manner discriminate against, a whistle-blower.” This protection
will no doubt make life more complicated for companies because the
protections afforded to whistle-blowers may effectively encourage more
employees — some who are trying to protect their jobs — to file report
as a way to keep their jobs.
The only real incentive in the rules for reporting information
internally is that the criteria for determining the amount of any
potential award includes “whether, and the extent to which, a
whistle-blower reported the potential violation through effective
internal whistle-blower, legal or compliance procedures before reporting
the violation to the commission.” That is just one of 11 factors the
S.E.C. will consider, however, and is the last one listed.
I suspect that an employee’s decision to report information
internally is unlikely to have much impact on any award the S.E.C. may
give when the whistle-blower is already guaranteed 10 percent of the
recovery, particularly if the violation is significant.
The rule proposal also addresses how the S.E.C. will protect the
confidentiality of a whistle-blower’s identity and information by
providing that commission staff need not inform a company about the
receipt of information or that the person may be contacted to further
discuss potential violations.
In fairness to the S.E.C., the agency does not have much choice in
favoring whistle-blowers over their corporate employers because Congress
made its intent quite clear, even if an unintended consequence is to
limit the effectiveness of corporate compliance programs.
While there is talk of a pushback against the Dodd-Frank Act on
Capitol Hill, Republicans and Democrats have agreed over the last few
years that encouraging disclosure of corporate misconduct by rewarding
those who do so is a good thing
Rather than limit whistle-blowing, I would not be surprised if
Congress expanded the program in the securities and commodities fraud
area to other government programs, such as health care and defense
contracting.