Businesses criticize whistleblower reward plan
By David S. Hilzenrath
5/20/2011
Business groups are alarmed about a federal plan to reward company insiders and other tipsters for blowing the whistle on corporate fraud.
The Securities and Exchange Commission is scheduled to vote Wednesday on a far-reaching proposal to combat corporate wrongdoing [1] by paying private employees to join the fight.
The bounties could give tipsters a powerful incentive to expose the kind of abuses that have cost investors dearly, from the Enron and WorldCom accounting frauds of a decade ago to the Fannie Mae [2] and Freddie Mac [3] scandals of later years and alleged misrepresentations involving toxic mortgages. [4]
The government pays bounties to whistleblowers for exposing fraud, from tax evasion to Medicare scams and Pentagon procurement abuses. As part of an overhaul of financial regulation, [5] Congress and President Obama last year demanded a formal reward system at the SEC, which polices Wall Street and punishes fraud against investors.
Businesses say that before whistleblowers share information with the SEC, they should alert the company they are accusing and give the company a chance to address the alleged misconduct.
Some business groups have said they are worried that the SEC could be overwhelmed with tips. They say they want to ease the burden on regulators by screening the complaints.
"Companies are far better equipped to assess complaints in the context of their particular business and to 'separate the wheat from the chaff,' " two major Wall Street groups, the Financial Services Roundtable and the American Bankers Association, said in a December letter to the SEC.
The American Association of Bank Directors says the reward program should be scrapped. Employees have a duty to their companies, the group says, "but now they have been deputized and promised huge riches to bypass their companies and report to the government."
Lawyers who specialize in representing whistleblowers say companies cannot be trusted to police themselves.
The government should not discourage potential informants from coming forward or put them in danger of retaliation by requiring them to begin by dealing with the companies they think are breaking the law, lawyers said.
"The SEC's primary purpose is to protect investors -- not internal compliance programs," Sen. Charles E. Grassley (R-Iowa), who has long advocated that the government encourage whistleblowing, said in a letter to the SEC.
The SEC "should not throw whistleblowers to the wolves," Grassley added.
At issue is a program Congress and the president ordered the SEC to implement in response to the mortgage meltdown and financial crisis.
Under the Wall Street regulatory overhaul known as the Dodd-Frank Act, whistleblowers are entitled to rewards of 10 percent to 30 percent of the money they help the SEC recoup through enforcement actions.
In big cases, the bounties could total tens of millions of dollars. Goldman Sachs last year paid $550 million [6] to settle an SEC complaint that it sold investors a subprime mortgage product that was rigged to fail.
The SEC is translating the law's general directives into detailed rules. It issued a draft for public comment [7] late last year and, after a delay, it is set to vote on a final version Wednesday.
The controversy highlights the SEC's little-known practice of allowing companies to investigate themselves and turn over the results [8] -- and companies' desire to preserve that role.
In comments to the SEC, companies and business lobbies have said the regulators should defer to companies' own mechanisms for handling complaints, such as internal tip lines.
The SEC has told companies that their concerns may be overblown because the agency will still allow them to investigate tips on the SEC's behalf, at least as a first step.
"We expect that in appropriate cases, consistent with the public interest and our obligation to preserve the confidentiality of a whistleblower, our staff will, upon receiving a whistleblower complaint, contact a company, describe the nature of the allegations, and give the company an opportunity to investigate the matter and report back," the SEC said in its draft of the rules.
"This has been the approach of the Enforcement staff in the past, and the Commission expects that it will continue in the future," the SEC said.
A group of companies said the rules should spell out that, "absent special circumstances," they will be entitled to conduct the initial investigations of whistleblower tips. The companies making that plea include Citigroup, [9] Alcoa, Intel, Kraft Foods, [10] Johnson & Johnson, [11] J.P. Morgan Chase, [12] Pfizer, [13] Celanese, Prudential Insurance, [14] Ingersoll-Rand and Tyco International. [15]
Corporations and their representatives have also sought changes in the fine print of the whistleblower rules.
One could prevent scorned husbands or wives from cashing in on secrets.
The Society of Corporate Secretaries and Governance Professionals, whose members play supporting roles for executives and board members, says whistleblowers should not be allowed to profit from information "gained through the violation of any privileged relationship, such as spouses."
Another proposed change could leave whistleblowers vulnerable while making sure that employers can still mete out discipline.
Although the law prohibits companies from retaliating against employees for blowing the whistle, the corporate secretaries group asked the SEC to make clear that companies could still fire whistleblowers for other reasons.
A third proposed change would prohibit lawyers from representing whistleblowers for contingency fees -- in other words, in return for a percentage of any reward instead of for fees paid upfront.
"This proposal would virtually guarantee that no whistleblowers were represented by talented attorneys in connection with the application for a bounty," partly because few whistleblowers could afford to pay lawyers by the hour, wrote Geoffrey Christopher Rapp, a professor at the University of Toledo College of Law.
Under the draft rules, employees with compliance and corporate governance responsibilities -- those whose jobs involve fielding internal complaints -- would be disqualified from collecting bounties unless the company acted in "bad faith" or failed to inform the SEC of alleged wrongdoing within a "reasonable time."
A long list of companies said those employees should be banned without exception.
Similarly, the accounting firms PricewaterhouseCoopers, Ernst & Young, Deloitte and KPMG, which audit corporate books, say employees of audit firms should not receive rewards for accusing them of bad audits.
Whistleblower lawyers say the rules the SEC has drafted pose bureaucratic obstacles for tipsters that could defeat the purpose of the rewards.
Lawyer and former prosecutor Stuart D. Meissner said some potential whistleblowers already are reluctant to share information with the SEC because many agency employees go through the revolving door [16] and could end up working for the named companies.
"[A]t best, the proposed rules demonstrate a naive view of the world," Meissner wrote in a letter submitted to the SEC. "At worst, it demonstrates corporate lobbying gone wild."
[1] http://www.washingtonpost.com/wp-dyn/content/article/2010/11/22/AR2010112200513.html
[2] http://www.washingtonpost.com/wp-dyn/articles/A2970-2004Dec15.html
[3] http://www.washingtonpost.com/wp-dyn/content/article/2007/09/27/AR2007092701207.html
[4] http://www.washingtonpost.com/wp-dyn/content/article/2010/10/15/AR2010101502219.html
[5] http://www.washingtonpost.com/wp-dyn/content/article/2010/07/21/AR2010072100512.html
[6] http://www.washingtonpost.com/wp-dyn/content/article/2010/07/15/AR2010071505111.html
[7] http://www.sec.gov/rules/proposed/2010/34-63237.pdf
[9] http://voices.washingtonpost.com/market-cop/2010/07/citigroup_to_pay_75_million_to.html
[10] http://www.fcpablog.com/blog/2011/3/1/kraft-discloses-sec-investigation.html
[11] http://www.sec.gov/news/press/2011/2011-87.htm
[12] http://www.washingtonpost.com/wp-dyn/content/article/2011/02/03/AR2011020306649.html
[13] http://www.washingtonpost.com/wp-dyn/content/article/2009/09/02/AR2009090201449.html
[14] http://www.washingtonpost.com/wp-dyn/content/article/2010/09/18/AR2010091802854.html
[15] http://www.sec.gov/litigation/litreleases/2007/lr20353.htm
[16] http://www.washingtonpost.com/wp-dyn/content/article/2005/09/19/AR2005091900246.html