Update: On a date to be determined, top government officials in the “whistleblower” arena and leading lawyers from across the country will once again convene for the “Whistleblower Law Symposium.” In this program that we have organized since 2009, we are planning a streaming option so our colleagues across the globe can join those who attend in person.
Here is the updated Agenda:
Newest Whistleblower Trends: Cyber, Crypto, Financial Fraud, and
In this week of new bank bailouts (following Silicon Valley Bank’s), a bipartisan group of five Senators has urged common sense improvements to the SEC Whistleblower laws. These Senators emphasize the “crucial role of whistleblowers” in protecting both investors and taxpayer funds.
- The SEC Whistleblower Reform Act of 2023, co-sponsored by Sens. Grassley, Warren, Collins, Warnock, and Mastro, removes some predictable roadblocks to an effective SEC Whistleblower program. To summarize from Sen. Grassley’s release, the Act would:
- Protect whistleblowers from retaliation if they report violations only in the workplace. Currently, whistleblowers are protected only once they report misconduct directly to the SEC or certain other officials.
The SEC announced today its first SEC Whistleblower award to a former company officer. The award of a half-million dollars was for “original, high-quality information about a securities fraud,” which resulted in an SEC enforcement action with sanctions of more than $1 million.
Typically, corporate officers, directors and other corporate fiduciaries are not eligible for SEC Whistleblower awards when they learn of fraud through employee reports. The SEC built in flexibility in its rules, however, when the officer waits “more than 120 days after other responsible compliance personnel possessed the information and failed to adequately address the issue.” Otherwise, frauds that a dishonest company refuses to address might otherwise go unreported.
We have followed the new SEC Whistleblower Program since the Senate staff consulted us in its drafting of the SEC whistleblower provisions of the 2010 Dodd-Frank law. We represent SEC and CFTC whistleblowers in claims that concern frauds sometimes as large as $1 billion.
Yesterday’s record award to an SEC whistleblower has far-reaching consequences because the SEC made clear it will reward foreign citizens living abroad who meet its criteria for a whistleblower award.
This decision rejects any suggestion that the SEC Whistleblower Program’s reach ends at the nation’s borders. The SEC recognized that a leading federal appeals court imposed such a limitation on the anti-retaliation provisions of the Dodd-Frank law, which authorized the SEC Whistleblower Program, but announced it is taking a different approach to whistleblower awards:
“[A]lthough we recognize that the Court of Appeals for the Second Circuit recently held that there was an insufficient territorial nexus for the anti-retaliation protections of Section 21F(h) to apply to a foreign whistleblower who experienced employment retaliation overseas after making certain reports about his foreign employer, Liu v. Siemens, __ F.3d __, 2014 WL 3953672 (2d Cir. Aug. 14, 2014), we do not find that decision controlling here; the whistleblower award provisions have a different Congressional focus than the anti-retaliation provisions, which are generally focused on preventing retaliatory employment actions and protecting the employment relationship.”
Today the SEC Office of the Whistleblower announced the largest-ever award to an SEC whistleblower: $30 million to a whistleblower living abroad.
The size of the award reflects the SEC’s seriousness about utilizing whistleblowers’ information to expose major securities violations. The SEC described this as “ongoing fraud that would have been very difficult to detect” without the whistleblower, according to the Director of the SEC’s Division of Enforcement, Andrew Ceresney.
Sean McKessy, Chief of the SEC’s Office of the Whistleblower, added that this award demonstrates the “international breadth” of the SEC whistleblower program.
Each Fall, the Justice Department tallies its recoveries of taxpayer dollars that have been pilfered through fraud directed at federal programs. A year ago, DOJ proudly announced $3 billion in recoveries in False Claims Act cases, and a record $8.7 billion recovered in the three years starting in 2009.
Late this year, DOJ will announce that its fraud recoveries tripled from $3 million in FY 2011 to more than $9 million in FY 2012. This trend of increasingly large recoveries of stolen taxpayer funds proves once again the effectiveness of laws like the False Claims Act, which incentivize whistleblowers to expose fraud through its qui tam provisions.
Although health care cases account for the vast majority of FCA recoveries, growing areas include banking, mortgage, and pension fraud cases involving fraudulently obtained taxpayer dollars, as my colleagues at Taxpayers Against Fraud point out. States are also using their own false claims laws to recover stolen taxpayer funds.
In qui tam cases, private citizen whistleblowers (known as “relators”) file suit on the government’s behalf to expose fraud against taxpayer funds. The whistleblowers can receive 15-25% of the government’s recovery of stolen funds if the government prosecutes the case, and 25-30% if the government leaves it to the whistleblower to pursue the recovery.
Consider the history of False Claims Act recoveries that have totalled more than $39 billion since 1986, when Congress authorized meaningful rewards to whistleblowers:
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Financial fraud cases under the False Claims Act continue. A Pennsylvania lender has agreed to pay $3.9 million in a False Claims Act case over alleged false statements in mortgage loan applications for loans insured by the U.S. Department of Housing and Urban Development (HUD). The loans were made to two nursing homes.
The government contended that Capmark Finance LLC misrepresented the borrowers’ creditworthiness in these two applications for mortgage loans. When the loans defaulted, the FHA sustained losses.
The Financial Fraud Enforcement Task Force takes credit for this recovery. It was created to investigate and prosecute financial crimes.
Since the 2008 financial collapse, many have called for imposing liability on those whose fraud fueled the crisis.
In this early phase of what we predict will be a wave of financial fraud cases, the Justice Department announced today the largest False Claims Act settlement to date over mortgage fraud. Bank of America has agreed to pay $1 billion to resolve allegations that the Bank, through Countrywide Financial Corporation and some of its subsidiaries and affiliates, engaged in underwriting and origination mortgage fraud.
DOJ alleged that Countrywide knowingly made loans to unqualified home buyers and used inflated appraisals, thus causing hundreds of millions of dollars in damages to the Federal Housing Administration. The FHA insured the loans in question.
The promising new IRS Whistleblower Program that Congress authorized in December 2006 is the subject of a long-anticipated GAO Report released this morning.
Disappointingly, the report raised, but did not attempt to answer, fundamental questions that will determine whether the IRS realizes the full potential of the new program in helping close the “tax gap”–or settles for a fraction of what it can accomplish.
Inspired by the dramatic successes of the False Claims Act in combating fraud against the government through rewarding whistleblowers, Sen. Charles Grassley spearheaded the effort to create the first meaningful IRS Whistleblower Program in 2006.