Since its inception, the Securities and Exchange Commission’s whistleblower program has awarded tipsters more than $100 million for the information fueling enforcement actions and more than $500 million in financial remedies.
During a speech this week where he trumpeted the initiative’s success, Director of Enforcement Andrew Ceresney addressed the role that the attorneys representing informants can, and should, play in the process.
“It will come as no surprise to this audience that we welcome the involvement of counsel in whistleblower tips,” Ceresney said, speaking at the annual Taxpayers Against Fraud Conference in Washington D.C. “While whistleblowers can engage with us without the assistance of counsel, counsel experienced in whistleblower representations can help with up-front triage of tips to identify those that have a nexus with the federal securities laws and that may have merit.”
Attorneys representing whistleblowers, Ceresney said, can also help manage client expectations regarding the length of investigations and the awards process. “Whistleblower counsel can help by emphasizing to clients that the passage of time without contact does not mean we are not taking the allegations seriously,” he said. “It is also helpful to remind clients that, because our investigations are nonpublic, we are very limited in what we can disclose about ongoing investigations.”
The award process takes time, he added, because there are sometimes multiple claimants applying for an award in a matter, upwards of 16 of them in one particular case. The SEC’s Whistleblower Office “gives each one the attention and due diligence that it deserves” and the award applications “often present unique, first impression issues that require careful review and thought.”
It is important for whistleblowers to consider whether they can provide corroborating information for their tips, including documents, names of other individuals who can provide additional information or independent analysis that might reinforce the validity of a tip, Ceresney said. While supporting evidence may expedite an investigation and subsequent award, in “an effort to be helpful, whistleblowers are often tempted to provide us with information that may protected by the attorney-client privilege or the work product doctrine.”
“This is not helpful and in fact can substantially delay our investigation,” he cautioned. “If whistleblowers or their attorneys are unsure whether something is privileged, it is best to segregate the material and engage in a dialogue with us to determine how to proceed.
Ceresney reiterated that the SEC takes protecting the confidentiality of whistleblowers very seriously. Those representing them can aid those efforts. “One way attorneys and whistleblowers can help us to maintain their confidentiality is to identify any facts they are disclosing, or documents that they are providing, that may tend to identify the whistleblower,” he says. “This will help us to craft document requests and conduct testimony in the most protective manner.”