In the battle over whistleblowers, money matters

Does the FCA campaign suggest there is now competition among regulators who want to be the first to know of misconduct, money laundering, market abuse, and fraud? What has motivated the FCA to embark upon this “In confidence, with confidence” campaign? Are U.K. regulators anxious about whistleblowers choosing a potential U.S. reward over …?

And therein lies the question: “Over what?” Just what does the United Kingdom offer to incentivize whistleblowers? The United States operates a number of well-established and respected global whistleblower schemes that reward people who come forward, irrespective of their personal motivation. In contrast, the FCA has a poor history of protecting whistleblowers and has never actually rewarded any.

Perhaps the case of Barclays Bank and the conduct of CEO Jes Staley best demonstrates the difference between U.K. and U.S. approaches to whistleblowers. In 2018, the FCA fined Staley personally £640,000 (U.S. $880,000) for attempting to identify a whistleblower. In the same year, the New York State Department of Financial Services fined the bank $15 million in relation to the incident.

Regardless of the FCA’s motivation with its new campaign, the development should be welcomed. In the interest of full disclosure, I’ve had my own bitter experiences with the FCA, but I acknowledge the positives of efforts to boost whistleblowing as a deterrent to misconduct and crime.

And it’s not just the FCA with room to improve: When I previously asked Sir David Green, then the head of the Serious Fraud Office (SFO), why we in the United Kingdom don’t reward whistleblowers, he answered, “It’s not very British.” Personally, I see this as 20th-century thinking, which has no place in fighting 21st-century crime. Moreover, given the paltry success of the SFO, I was surprised the head of the agency was effectively turning away his best source of intelligence and evidence.

In contrast, Jane Norberg, chief of the SEC’s Office of the Whistleblower, fully embraces whistleblowers and all they offer. In her office’s latest annual report, she said, “[Fiscal year] 2020 truly was a historic year that demonstrated the Commission’s dedication to the whistleblower program, which continues to have a significant impact on the Commission’s enforcement efforts and protection of retail investors. We hope the awards made in FY 2020 continue to incentivize whistleblowers to come forward and report specific, timely, and credible information to the Commission, which in turn enhances the agency’s ability to detect wrongdoing and protect investors and the marketplace.”

While the SEC’s whistleblower program has issued over $700 million in awards, the FCA and SFO have made no reported payouts.

All of this suggests attracting whistleblowers and their intelligence has become a competitive business; after all, there is a lot of money to be made and lost when a whistleblower chooses not to report the matter to your office. Green referenced this in the same conversation quoted above, when he bemoaned how U.S. authorities had applied a penalty of over $200 million against Barclays in 2012 for rate fixing. Green was frustrated the United Kingdom received none of the $200 million, though he failed to see the connection between paying whistleblowers rewards for their part in the enforcement process.

The moral of the story is a simple one and relates to a quote from Norberg, who described the SEC’s whistleblower process as “cake in a box” to U.K. Parliament in 2019. You can have your whistleblower cake and eat it, but only if you pay for the ingredients to bake it.