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On July 11, the SEC responded to a petition asking the U.S. Court of Appeals for the District of Columbia to compel a whistleblower award determination from the agency. In April 2017, the “John Doe” petitioner had applied for an SEC whistleblower award, claiming that beginning in May 2011 and continuing for the next several years, he voluntarily provided original information to the Commission that led to the SEC and DOJ’s $519 million resolution of foreign bribery claims against Teva Pharmaceuticals (previously reported here). Under the SEC Whistleblower Program established by the Dodd-Frank Act, the petitioner could be eligible for up to 30% of that $519 million recovery. In April 2019, after the SEC still had not issued a preliminary determination in connection with his application, the petitioner sought relief in court. The petitioner argued that it was a “simple task” to evaluate his claim, and the agency’s two-year delay was “unreasonable.”
In its response, the SEC argued that the petitioner “greatly misapprehends the work, effort, and time involved in reviewing whistleblower claims,” “overlooks the substantial complexities involved in adjudicating claims regarding the Teva matter,” and “ignores that the SEC is processing a voluminous number of other whistleblower applications that require the attention of the Commission in addition to his claim.”
For additional information about SEC whistleblower awards and procedures under the SEC Whistleblower Program, see the article published here by Buckley LLP attorneys.
On May 24, the SEC announced that it had awarded a whistleblower more than $4.5 million for sending an anonymous tip to a company, triggering an internal investigation within the company to review the allegations, while also sending the tip to the SEC within 120 days of reporting it to the company. Following its internal investigation, the company reported the allegations to the SEC and another agency. As a result of the company’s self-reporting, the SEC initiated its own investigation of the alleged misconduct.
This was the first time a claimant was awarded under SEC Rule 21F-4(c)(3), 17 C.F.R. § 240.21F-3(c), which provides that a whistleblower may be eligible for an award when he or she voluntarily provides the SEC with original information within 120 days of providing it to a company through the company’s internal procedures for reporting allegations of possible violations of law.
The SEC’s whistleblower award order can be seen here.
On April 8, the Ninth Circuit denied a petition to rehear its February order affirming most of the jury’s award – $8 million of the original $11 million – in a landmark FCPA whistleblower-retaliation case, Wadler v. Bio-Rad Laboratories, Inc. The court denied Bio-Rad’s petition without explanation.
The SEC announced this week that it had awarded a whistleblower $37 million for providing “smoking gun” evidence that led to a successful enforcement action; the substance of the underlying case was not described. This was the third largest whistleblower award given since the SEC’s first award in 2012. A second whistleblower received $13 million. The largest whistleblower award remains the one granted in March 2018, $50 million awarded to two banking employees.
The SEC’s whistleblower award order from March 26, 2019 can be seen here.
On November 15, the SEC released its 2018 Annual Report to Congress on its Whistleblower Program, as required under § 924(d) of the Dodd-Frank Act and § 21(F)(g)(5) of the Securities Exchange Act of 1934. The Report, which covers October 1, 2017 through September 30, 2018, indicates that the SEC received 202 FCPA-related whistleblower tips during the reporting year. Those 202 FCPA tips account for only 3.82% of the tips received in that period. While the overall number of whistleblower tips has steadily risen over the past 4 years, the number of FCPA tips has remained fairly steady. In 2015, there were 186 (4.74% of the tips received); in 2016 there were 238 (5.64% of the tips received); and in 2017 there were 210 (4.68% of the tips received). This relative consistency contrasts with the number of offering fraud tips, which jumped from 758 in 2017 to 1,054 in 2018.
In addition to providing statistics and background on the whistleblower program, the Report discusses rule amendments proposed earlier this year. In particular, the Report reviews proposed amendments to SEC Rule 21F-2 (Whistleblower Status and Retaliation Protection) that are intended to bring the rules in line with the Digital Realty Trust v. Somers decision. The proposed amendments would include instituting a uniform definition of whistleblower that requires the individual to have submitted the information “in writing” to the SEC.
On November 14, 2018, a three judge panel for the United States Court of Appeals for the Ninth Circuit heard oral arguments in Sanford Wadler v. Bio-Rad Laboratories, Inc., et al. Bio-Rad, a life science research and diagnostics company, is hoping to overturn a February 2017 jury verdict ordering the company to pay its former General Counsel and Secretary, Sanford Wadler, $11 million in punitive and compensatory damages. Wadler’s complaint alleged that the company had fired him for being an FCPA whistleblower. As detailed in a previous FCPA Scorecard post, Bio-Rad paid $55 million in November 2014 to settle DOJ and SEC allegations that the company violated the FCPA in Russia, Thailand, and Vietnam. Wadler’s report to the Audit Committee had involved separate allegations that the company violated the FCPA in China, allegations that did not result in additional penalties against Bio-Rad.
Bio-Rad appealed the Wadler award on the grounds that the jury was erroneously instructed that the SEC’s rules or regulations forbid bribery of a foreign official; that the company’s alleged FCPA violations were the result of Wadler’s lack of due diligence; that the trial court wrongly excluded certain impeachment testimony and evidence related to the timing of Wadler’s pursuit and hiring of a whistleblower attorney; and that Wadler did not qualify as a “whistleblower” under Dodd-Frank in light of his reporting only internally and not to the SEC (pursuant to the U.S. Supreme Court’s decision in Digital Realty Trust, Inc. v. Somers, No. 10-1276, 583 U.S. ___ (2018)). During the argument, one member of the circuit panel reportedly expressed doubt concerning Bio-Rad’s jury instruction argument, and another told counsel for Bio-Rad, “I don’t see how this can be reversed on the theory you’re offering.”
Based on media reports, DOJ’s Fraud Section is reportedly investigating some part of Major League Baseball (MLB) for possible FCPA violations related to recruitment of international players, particularly related to immigration issues for players from Latin America. Reports indicate that the investigation was initiated when a MLB whistleblower provided the FBI with information and documents last year during spring training. Since then, several witnesses have reportedly already been subpoenaed and testified before a federal grand jury in connection with the investigation.
A spokesperson for the MLB stated that the organization had not been contacted by federal authorities regarding an investigation, and the two franchises that appear to be most at issue declined to comment to the media on the matter.
Non-profit advocacy organizations accuses Bank of England of deceptive report on US whistleblower tip rewards programs
On June 20, the National Whistleblower Center, an American non-profit advocacy organization for whistleblowers, and the European Center for Whistleblower Rights formally requested that the Bank of England retract a report that they allege
smischaracterizes US whistleblower tip rewards programs, including regarding FCPA tips. The report, originally released in 2014 by the Bank of England in conjunction with the UK’s Financial Conduct Authority, had criticized the use of financial incentives for whistleblowers in the US, arguing that they were ineffective, “don’t generate quality tips,” and “impose expensive and unnecessary governance structures.” The report concluded that the UK should adopt regulatory changes to improve protections for all whistleblowers rather than provide rewards, which allegedly allot large financial payouts to a tiny minority of whistleblowers.
The Whistleblower Center disputed these assertions in a rebuttal report, released this year. According to the whistleblower advocacy organizations, many of the assertions in the Bank of England’s report “are simply false” and the continued use of the report “inhibit[s] the implementation of effective anti-fraud laws in the UK.” The organizations further complained that the 2014 report has been used as justification for stakeholders in UK to not create financial incentives for whistleblowers and that it has stifled momentum in the UK for an effective whistleblower program.
As previously covered, French pharmaceutical company Sanofi S.A. announced in October 2014 that it was investigating whether certain payments made by company employees to healthcare professionals in the Middle East and Africa violated the FCPA. Sanofi launched an investigation to review payments made from 2007 to 2012 as a result of anonymous whistleblower allegations, and self-reported the allegations to the U.S. Department of Justice (DOJ) and the Securities and Exchange Commission (SEC). On March 7, 2018, Sanofi announced in its Form 20-F SEC filing that the DOJ notified Sanofi in February 2018 that it was closing the inquiry into the self-reported whistleblower allegations. Sanofi is continuing to cooperate with the SEC’s review of the allegations.
Following a $55 million civil and criminal FCPA settlement by Bio-Rad, a life science research and diagnostics company, in November 2014, the company’s former General Counsel and Secretary, Sanford Wadler, filed a civil complaint against Bio-Rad and executive officers and board members alleging that he was fired for blowing the whistle on FCPA issues. In February 2017 a jury awarded Wadler a total of $11 million in punitive and compensatory damages (including double back-pay under Dodd-Frank).
Bio-Rad recently appealed that verdict to the Ninth Circuit on the grounds that the trial court should have directed the verdict in favor of Bio-Rad because, it argues, the alleged FCPA violations were the result of Wadler’s lack of due diligence, because Wadler did not first consult the company’s compliance officers and FCPA lawyers before reporting, and because his allegations were discredited by trial witnesses. Bio-Rad also claims that the trial court wrongly excluded certain impeachment testimony, and that Wadley did not qualify as a “whistleblower” under Dodd-Frank in light of his internal reporting.
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