Seems like everywhere you turn these days, there's a whistleblower breaking their silence and blowing the whistle on some form of wrongdoing. But, surprisingly, what we don't hear much about are Wall Street whistleblowers tapping into a giant $425 million jackpot just waiting to be distributed.
That's the pot of cash sitting in a bank account exclusively reserved for tipsters who come forward and report possible securities violations to the SEC Whistleblower Program — a program that offers eligible whistleblowers significant employment protections, monetary awards and the ability to report anonymously. One anonymous international whistleblower just received a $30 million check in the largest award to date. A few months before that, the SEC handed out a $14 million award, and more large awards are expected.
For those inside and outside Wall Street firms, who are aware of violations, the program can pay off like the lottery, but with much better odds (and no required photo op with a large check). Even analysts and short sellers are now getting in on the game by alerting the SEC to fraud at public companies.
In Labaton Sucharow's annual Wall Street ethics survey last year, we found that 52 percent of financial-service professionals believed that their competitors engaged in illegal or unethical behavior and 23 percent of respondents had firsthand knowledge of wrongdoing in their workplace. But a far higher percentage — nearly 90 percent — indicated a willingness to report possible wrongdoing if given the protections and incentives offered by the SEC Whistleblower Program.
Since the program's inception in late 2010 through the end of fiscal year 2014, the SEC Whistleblower Program received more than 10,000 tips and granted 15 monetary awards. Using these statistics, the average SEC whistleblower had a 1/680 chance of winning. Compared with the one-in-a-million type of odds associated with the typical lottery, those odds are pretty good. Significantly, the odds of receiving an award is likely to be far better in the future because SEC investigations often take two to four years to complete and many of the initial tips to the program are still being investigated.
Of course, unlike the lottery, there is nothing random about an SEC whistleblower reward and whistleblowers who are sophisticated and represented by legal counsel can improve their odds. Prior to submitting their tips, smart whistleblowers determine their eligibility and whether a securities violation has occurred. After submitting their tips, these whistleblowers also assist the SEC staff and other law enforcement officials with their investigative efforts. And, if an eligible whistleblower's tip leads to a successful enforcement action, the SEC is required by law to pay that individual 10 percent to 30 percent of monetary sanctions it collects, as long as the sanction is above $1 million. By way of context, the SEC secured over $3.4 billion in monetary sanctions in fiscal year 2014 with several cases exceeding $100 million.
For whistleblowers who fear retaliation and blacklisting, if represented by an attorney, the SEC Whistleblower Program permits them to report possible securities violations anonymously. Equally important, the SEC has new authority to charge firms with retaliating against whistleblowers, as it recently did against a prominent hedge fund, Paradigm Capital Management.
At the SEC and in private practice, I have witnessed an increasing number of corporate whistleblowers crossing the green line and blowing the whistle. If the SEC Whistleblower Program had been in place when JPMorgan whistleblower Alayne Fleischmann went to regulators with claims of fraud, she could have received up to 30 percent of the $9 billion settlement. That's a whopping $2.7 billion, which comes pretty close to the largest Powerball payout in history.
Wall Street is filled with many honest people who want to do the right thing. Often, they fear being blacklisted and retaliated against. Now, with the unique protections and incentives of the SEC Whistleblower Program, they can significantly limit their downside risk. As a former law enforcement official, I can tell you that it is extremely difficult to detect, investigate, and prosecute white collar crime without insider information or assistance from these knowledgeable individuals. Similar to the lottery, however, they can't make a difference, if they don't play.
In a world where even an unlikely game of chance costs two bucks, it's good to keep in mind that integrity is free — and sometimes, it's rather generously rewarded.
Commentary by Jordan Thomas, a decorated military officer and former senior lawyer with the SEC and DOJ. He leads the Whistleblower Representation Practice at Labaton Sucharow LLP (www.secwhistlebloweradvocate.com). Follow him on Twitter @SECReporter.
By the author's calculations, if the SEC Whistleblower Program had been in place when JPMorgan whistleblower Alayne Fleischmann went to regulators with claims of fraud, she could have received up to 30 percent of the $9 billion settlement, which would be $2.7 billion.