SEC’s Clayton: Talk of whistleblower cap ‘misguided’

The point was brought up again Tuesday during a hearing on the oversight of the SEC before the U.S. Senate Committee on Banking, Housing, and Urban Affairs. Sen. Sherrod Brown (D-Ohio), ranking member of the committee, asked Clayton point-blank to reiterate his commitment to not create a cap.

“Absolutely,” Clayton responded. “Any characterization of our proposal as a cap is completely misguided.”

In 2018, the SEC proposed changes to its whistleblower rules geared toward running the awards application process more efficiently. The proposal has still yet to be finalized, with a meeting to vote on the changes in October cancelled and not yet rescheduled.

As currently worded, the SEC rewards whistleblowers whose original information leads to an enforcement action penalty of over $1 million with between 10 percent and 30 percent of the fine.

The SEC wrote in its proposed changes the rules would authorize the Commission to adjust the award percentage to yield a payout “that does not exceed an amount that is reasonably necessary.” For large awards, “in no event would the award be adjusted below $30 million,” the SEC wrote.

Some interpreted this verbiage to mean the SEC is imposing a $30 million cap, but Clayton has repeatedly said otherwise. In a statement released when the SEC announced its annual report to Congress last month, Clayton insisted “the proposed provision was not a ‘cap,’ it could not and was not intended to operate as a ‘cap,’ and I do not support a cap.”

“I can tell you that what our proposal was intended to do was to make it clear how we make those decisions, particularly at the top end and bottom end of the spectrum,” Clayton said at the hearing. “I believe in transparency in how the decisions are made.”

The recent annual report showed the number of whistleblower tips the SEC received in fiscal year 2019 dropped from the prior year for the first time since the program’s inception in 2011, from 5,282 in FY2018 to 5,212. Brown attributed this to a “chilling effect” brought on by the proposed changes, and Clayton responded by saying the mischaracterization of the cap is why he felt the need to step in and clarify the proposal.

Since the beginning of the program under the Dodd-Frank Act in 2011, the SEC has awarded approximately $387 million to 70 individuals. All payments are made through an investor protection fund established by Congress and financed entirely through monetary sanctions paid to the SEC.

“Personally … I think the program has been extremely beneficial to investors, and I support it,” Clayton said.