Overseas whistleblowers continue to fuel SEC program

On Tuesday, in a brief announcement, the SEC said the whistleblower’s “expeditious reporting” helped the agency bring a successful enforcement action. No further information was provided: As set forth in the Dodd-Frank Act, the SEC protects the confidentiality of whistleblowers and does not disclose information that could reveal their identity.

This latest payout appears to mark at least the 13th time the SEC has awarded an overseas whistleblower. According to the SEC’s 2018 annual whistleblower report, “Past whistleblower award recipients hail from several different parts of the United States, and twelve recipients were foreign nationals or residents of foreign countries at the time they submitted their tips to the Commission.”

Added risk

In August 2014, the Second Circuit held in the case Liu v. Siemens that the anti-retaliation provisions of the Dodd-Frank Act do not extend to employees outside the United States. Thus, although foreign whistleblowers are eligible to receive monetary awards under the SEC program, they are not able to benefit from anti-retaliation protections.

The ruling, however, has not stopped foreign nationals working outside the United States from coming forward. A month later, the SEC awarded more than $30 million—its largest ever whistleblower bounty at the time—to an informant whose tips led to a major enforcement action. At the time, it was the fourth award to a whistleblower living in a foreign country.

In December 2017, the Commission awarded more than $4.1 million to a former company insider—a foreign national working outside the United States—who “both alerted the Commission to a widespread, multi-year securities law violation and continued to provide important information and assistance throughout the SEC’s investigation.”

Further, in September 2018, the SEC awarded nearly $4 million to an overseas whistleblower whose “extensive assistance” helped it bring a successful enforcement action.

“Whistleblowers, whether they are located in the United States or abroad, provide a valuable service to investors and help us stop wrongdoing,” the SEC said in a statement following announcement of the award.

The Commodity Futures Trading Commission (CFTC) appears to share that sentiment, awarding $70,000 to a foreign whistleblower—its first overseas payout through its program—in July 2018.

The SEC notes, to date, it has awarded approximately $385 million to 65 individuals since issuing its first whistleblower award in 2012. Given the notable amount of participation from overseas whistleblowers, companies with operations outside of the United States should take pains to ensure their non-U.S. employees know where to report their concerns and, further, that whistleblower reports do not go unaddressed.