The Whistleblower Must Voluntarily Provide Original Information
To qualify for a reward, a whistleblower must “voluntarily provide” the SEC or CFTC with original information concerning a securities or commodities law violation. The SEC or CFTC will consider the information to be provided voluntarily only if the whistleblower comes forward before he or she has received a request, inquiry or demand for the information from the SEC or CFTC; Congress; the Public Company Accounting Oversight Board; a self-regulatory organization; a federal agency or authority; or a state attorney general or regulator.
Notably, an individual (or group of individuals) does not lose eligibility as a whistleblower under the Dodd-Frank Act because the SEC, CFTC or another agency directs an inquiry or request for information to his or her employer. As long as the official inquiry or investigation is not directed to the whistleblower, any original information provided by the whistleblower will be deemed to “voluntarily”.
The whistleblower may nonetheless be deemed to have come forward voluntarily even if a request or demand from information comes before he or she reports a violation of the law under “extenuating circumstances.” These circumstances must be significant – such as the whistleblower going out of his or her way to raise the issues internally and make every effort to have the company address them before turning to the SEC or CFTC after the company refused to address the issues – and waiver of the requirement is in the public interest.
Freiberger Haber LLP is dedicated to providing experienced, dedicated, and aggressive representation for whistleblowers looking to report violations of the federal securities and commodities laws to the SEC or CFTC. If you have questions about your eligibility as a whistleblower under the SEC Whistleblower Program or CFTC Whistleblower Program, contact Freiberger Haber LLP.