SEC, DOJ ordered to review RBS whistleblower’s claim on $4.9B settlement

A three-judge panel of the U.S. Court of Appeals for the Second Circuit ruled that the Securities and Exchange Commission and the Department of Justice must review the whistleblower claim of Victor Hong, a former RBS employee who says he provided three federal agencies with information about a massive U.S.-based fraud involving RBS’s mortgage-backed securities.

In the ruling, the judges said the SEC promised it would “proceed to issuance of preliminary and final determinations on Petitioner’s application and address his arguments regarding the record and its rejection of his application.” The judges rejected the DOJ’s request to be removed from the case and ordered both agencies to provide documents to Hong.

At issue is a $4.9 billion settlement from 2018 between the DOJ and RBS, which at the time was the largest-ever penalty handed down by the DOJ against a single entity. With the payment, RBS settled allegations that it “misled investors in the underwriting and issuing of residential mortgage-backed securities (RMBS) between 2005 and 2008,” the DOJ said at the time.

No portion of that fine has ever been deemed eligible for a reward under the whistleblower program, according to a review of public records by Reuters.

In addition to the 2018 settlement between the DOJ and RBS, there is another, even larger settlement. In 2017, RBS and the Federal Housing Finance Agency (FHFA) reached a $5.5 billion settlement to resolve “violations of federal and state securities laws in connection with private-label residential mortgage-backed securities (PLS) trusts purchased by Fannie Mae and Freddie Mac between 2005 and 2007,” according to the FHFA’s press release at the time. The FHFA was not included in Tuesday’s ruling.

Hong, a former managing director for an RBS subsidiary for two months in 2007, reported wrongdoing at RBS to the SEC in 2014. He says he provided thousands of documents and internal RBS e-mails to investigators as part of his testimony.

Hong says the SEC handed his evidence off to other agencies—the DOJ and the FHFA—which each used it to launch successful investigations against RBS. But the SEC never launched its own investigation, nor did it participate in the DOJ or FHFA investigations.

As a result, Hong does not have an avenue to apply for a whistleblower award since, of the three agencies, only the SEC has a whistleblower reward program.

“Victor Hong jeopardized his career by filing a whistleblower complaint with the SEC and, at the Federal government’s request, voluntarily provided valuable information to the Federal government about securities fraud involving residential mortgage-backed securities at RBS, leading to a $4.9 billion settlement,” said Hong’s attorney, Richard S. Corenthal, in an e-mailed statement. “No one will jeopardize their professional career and come forward as a whistleblower to report securities fraud if the SEC and the Federal government are able to avoid compliance with the Dodd-Frank Act by not posting Federal government settlements of securities fraud violations as in this case.”

According to the Dodd-Frank Act, whistleblowers who provide information and evidence to investigators that leads to prosecution of financial crimes can receive between 10-30 percent of the final award. Neither the DOJ nor the SEC returned a request for comment.