FCPA Compliance and Ethics Blog

June 18, 2014

SEC Sanctions Company for Whistleblower Retaliation

WhistleI drove my daughter to the airport today for her summer exchange program in Spain. On the way she asked me what I was going to blog about tomorrow and I told her whistleblowers. She was not familiar with that term so I explained it to her and her response was ‘Oh you mean a snitch’ which she then followed up with ‘Dad, nobody likes a tattletale.’ I digested these cheery thoughts for a few moments and I realized if that is what a 17 year old thinks about a person who tries to inform the appropriate parties of concerns, we still have quite a ways to go in this area.

In Compliance Week, Joe Mont reported that the Securities and Exchange Commission (SEC) brought its first enforcement action for a company’s retaliation against a whistleblower. On Monday of this week, the SEC “charged an Albany, N.Y.-based hedge fund advisory firm with engaging in prohibited transactions and then seeking retribution against the employee who reported the illicit trading activity.”

The hedge fund in question, “Paradigm Capital Management and owner Candace King Weir agreed to pay $2.2 million to settle the charges. According to the SEC’s order instituting a settled administrative proceeding, Weir conducted transactions between Paradigm and a broker-dealer that she also owns while trading on behalf of a hedge fund client. Advisers are required to disclose that they are participating on both sides of the trade and must obtain the client’s consent. Paradigm also failed to provide effective written disclosure to the hedge fund and did not obtain its consent as required prior to the completion of each principal transaction. The SEC’s order adds that Paradigm’s Form ADV was materially misleading because it failed to disclose the CFO’s conflict as a member of the conflicts committee.”

Regarding the whistleblower, the SEC order reflected, “after Paradigm learned that the firm’s head trader had reported potential misconduct to the SEC, it engaged in a series of retaliatory actions that ultimately resulted in his resignation. Paradigm removed him from his head trader position, tasked him with investigating the very conduct he reported to the SEC, changed his job function from head trader to a full-time compliance assistant, stripped him of his supervisory responsibilities, and “otherwise marginalized him,” the order says.”

The Dodd-Frank Whistleblower provisions not only allowed payment of a bounty for information, which leads to a SEC enforcement action, but also protects employees from retaliation. Sean McKessy, chief of the SEC’s Office of the Whistleblower, said in a statement “For whistleblowers to come forward, they must feel assured that they’re protected from retaliation and the law is on their side should it occur. We will continue to exercise our anti-retaliation authority in these and other types of situations where a whistleblower is wrongfully targeted for doing the right thing and reporting a possible securities law violation.”

The difficulties faced by whistleblowers on Wall Street have been well documented. In an article in the Financial Times (FT), entitled “Wall Street Whistleblowers”, William D. Cohen wrote about three such persons. Oliver Budde, a former legal advisor for Lehman Brothers, who was quoted as saying “When the tone at the top is ‘anything goes’ anything will go.” Eric Ben-Artzi, a former analyst at Deutsche Bank, who was quoted as saying “They accused me of trying to bring down the bank.” Peter Sivere, a former compliance officer at JP Morgan Chase, who was quoted as saying “I wish I had known that the house always wins.” All three men had tried to blow the whistle internally but were not only rebuffed but suffered retaliation.

For his article, Cohen interviewed the three men. He found that all of them had “made allegations of wrongdoing at their banks, made strenuous efforts to report what they had discovered through internal and external channels and all three were either fired from their jobs after trying to share the information they had stumbled upon or quit in frustration.” But, equally importantly, Cohen believes that their stories, “and the details of what happened to them are important. Not only do they illustrate the existential risks that whistleblowers take when they attempt to point out wrongdoing that they uncover at powerful institutions. They also matter because their stories show just how uninterested these institutions genuinely remain – despite the lip service of internal hotlines and support groups – in actually ferreting out bad behaviour.”

The article also quoted Jordan Thomas, a former SEC enforcement official now in private practice at the firm of Labaton Sucharow, where he heads the firm’s whistleblower practice. Thomas thinks that the anonymous reporting provisions of the Dodd-Frank Whistleblower provisions will help protect whistleblowers. He said, “Essentially most whistleblower horror stories start with retaliation and to be retaliated against, you have to be known. The genius of Dodd-Frank was it created a way for people with knowledge to report without disclosing their identity to their employers or the general public. That has been a game changer because now people with knowledge are coming forward with a lot to lose, but they have a mechanism where they can report this misconduct without fear of retaliation or blacklisting.” Thomas also said “the fact that the SEC could award $14m to a single whistleblower whose identity has remained unknown, despite efforts by the media to uncover it, sends a powerful message that whistleblower identities will be protected.”

One person who is uncomfortable with this anonymous reporting is Beatrice Edwards, director of the Government Accountability Project. She pointed to a recent SEC payout to an anonymous whistleblower, where “The SEC didn’t even reveal the nature of the wrongdoing the whistleblower uncovered, so both the company’s shareholders and the public remain in the dark about what was specifically uncovered and where. All that is known is that the SEC did bring a major enforcement action against a financial institution that resulted in a large penalty and the corresponding $14m award to the whistleblower.” Edwards argued that “the SEC is a disclosure agency, so they should have to establish that [not revealing the information] is really required in order to protect the whistleblower, if they’re going to in a sense subvert their mission . . . They really are not able to justify why they are silent about the name of the company or the nature of the fraud.”

Perhaps the SEC bounty program and the Paradigm Capital Management enforcement action will change the way that company’s view and treat whistleblowers. I certainly hope so because a company’s own employees are its best source of information about what is going on inside the company. As to my daughter’s perception about whistleblowers, I asked her if her school had any type of reporting system if a student saw or was subject to inappropriate behavior. She said that you are supposed to report it to a school counselor. When I explained that was a whistleblower system she relented somewhat. But then she added, No one should rat out their friends. Just like the SEC, I guess we have a ways to go.

This publication contains general information only and is based on the experiences and research of the author. The author is not, by means of this publication, rendering business, legal advice, or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The author, his affiliates, and related entities shall not be responsible for any loss sustained by any person or entity that relies on this publication. The Author gives his permission to link, post, distribute, or reference this article for any lawful purpose, provided attribution is made to the author. The author can be reached at tfox@tfoxlaw.com.

© Thomas R. Fox, 2014

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