August 30, 2011

New Bill Would Moderate the Dodd-Frank Whistleblower Provisions

Here’s the latest on attempts in Congress to tweak Dodd-Frank, courtesy of this alert by Cooley’s Cydney Posner which is repeated below:

They’re at it again! H.R. 2483, the ”Whistleblower Improvement Act of 2011,” takes another stab at remaking Dodd-Frank, this time by modifying the whistleblower provisions set forth in Section 21F of the Exchange Act. The bill would require, as a prerequisite to receiving a whistleblower bounty, that the employee first report the matter to his or her employer. The bill was introduced at the end of last week by Representative Michael Grimm (R-NY) and is co-sponsored by four other Congressman, Reps. John Campbell (R-CA), Bill Flores (R-TX), Scott Garrett (R-NJ) and Steve Stivers (R-OH). The bill was referred to the House Committees on Financial Services and Agriculture.

The bill is designed to address the most contentious aspect of the SEC’s final whistleblower rules – the SEC’s decision not to mandate internal compliance reporting, prior to or contemporaneously with SEC reporting, as a prerequisite to eligibility for a whistleblower bounty. Critics charged that mandatory internal reporting would deter many whistleblowers, while advocates contended that allowing whistleblowers to bypass companies’ internal compliance programs would have a corrosive effect on these programs (including those mandated by SOX) and undermine companies’ ability to address the wrongdoing. The SEC’s decision not to mandate internal reporting arose out of its concern that employees could be hampered in internal reporting if, for example, management were involved in the misconduct.

The bill would amend Section 21F to require that, to be eligible for a whistleblower award, an employee who provides information relating to a violation of the securities laws that was committed by his or her employer (or by another employee of his or her employer), must first report the information to his or her employer before reporting to the SEC and then must report that information to the SEC within 180 days after internal reporting.

However, the bill does attempt to address the SEC’s concern regarding potential deterrents to internal reporting. Under the bill, whistleblowers who did not comply with the internal reporting requirement could still be eligible for awards if the SEC determined the following:

– that the employer lacked either a policy prohibiting retaliation for reporting potential misconduct or an internal reporting system allowing for anonymous reporting; or
– that internal reporting was not a viable option for the whistleblower based on either (i) evidence that the alleged misconduct was committed by or involved the complicity of the highest level of management, or (ii) other evidence of bad faith on the part of the employer.

The bill would also amend Section 21F to make ineligible any whistleblower who had legal, compliance or similar responsibilities and had a fiduciary or contractual obligation to investigate or respond to internal reports of misconduct or violations (or to cause the entity to do so), if the information learned by the whistleblower in the course of duty was communicated to the him or her with the reasonable expectation that he or she would take appropriate steps to respond.

Currently, Section 21F requires that awards be at least 10% and no more than 30% of the total monetary sanctions collected on an action. The bill would eliminate the minimum award requirement and cap awards at 30% of the amount collected. Also, under Section 21F, any whistleblower convicted of a criminal violation related to the matter is ineligible for an award. The bill would expand the exclusion from eligibility for culpable whistleblowers to include civil liability or other determination by the SEC that the individual committed, facilitated, participated in or was otherwise complicit in the misconduct.

Under the bill, the SEC would be required to notify the entity prior to commencing any enforcement action related to a whistleblower complaint to enable the entity to investigate the alleged misconduct and take remedial action, unless, based on evidence of bad faith or complicity in the misconduct at the highest levels of management, the SEC determined that notification would jeopardize the investigation. If the notified entity responded in good faith, which may include conducting an investigation, reporting its results to the SEC and taking appropriate corrective action, the SEC would be required to treat the entity as having self-reported the information and its actions in response to the notification evaluated accordingly.

With regard to the anti-retaliation provisions of Section 21F, the bill would make clear that employers would not be prohibited from enforcing any established employment agreements, workplace policies or codes of conduct against a whistleblower, and that any adverse action taken against a whistleblower for violation of those agreements, policies or codes would not be considered retaliation, as long as enforcement was consistent with respect to other employees who were not whistleblowers.

The bill would also make corresponding changes to Section 23 of the Commodity Exchange Act.

Be sure to tune into our upcoming webcast – “Preparing for the SEC’s New Whistleblower Rules: What Companies Are Doing Now” – on September 13th. We will be joined by Sean McKessy, Chief of SEC’s Office of the Whistleblower, as well as a great panel of outside counsel.

FINRA’s New Social Media Guidance: Guidance for Companies?

From Suzanne Rothwell: Recently, FINRA issued updated guidance to broker/dealer firms on social networking websites in Regulatory Notice 11-39. This Notice supplements guidance issued early last year in Regulatory Notice 10-06. Although the FINRA requirements are specific to the regulatory environment for broker-dealers, companies may nonetheless find some of the guidance useful in developing a social media policy for themselves – particularly where employees use social media sites for business purposes – and in reviewing the company’s website.

The most recent FINRA Notice clarifies that broker-dealer employees may use smart phones or tablet computers and other personal communication devices to access the firm’s business applications so long as the business and personal communications can be separated on the device thereby enabling the firm to retrieve and supervise the business communications without accessing the employee’s personal communications.

In addition, a principal of the broker-dealer firm must review prior to use any social media site that an associated person intends to employ for a business purpose. A broker-dealer firm is responsible for training its associated persons on its social media policies and must follow up on “red flags” that might indicate non-compliance with firm policies.

FINRA points out that some firms require that associated persons annually certify compliance with the policies and some firms randomly spot check the websites of associated persons to monitor compliance with firm policies. The Notice also warns that a broker/dealer firm is responsible for ensuring that a data feed to the firm’s website does not contain inaccurate information and should not include a link on its website to a third-party site that the firm knows has false or misleading content (for which the firm will be responsible if it endorses the content on the third-party site).

SEC Decides to Rescind Form F-9

Recently, as noted in this Paul Weiss memo, the SEC decided to eliminate Form F-9, effective as of December 31, 2012. Form F-9 is the SEC’s Multijurisdictional Disclosure System form used by some Canadian companies to register investment grade debt and preferred securities. One of the reasons for the SEC’s decision is Dodd-Frank’s Section 939A that directs the SEC to propose alternative criteria to replace rating agency criteria. Thus, Form F-9 had become largely duplicative of Form F-10. Still, it’s notable because it’s pretty rare that the SEC rescinds a form.

– Broc Romanek