2018 Year In Review For American and Canadian Whistleblower Programs
Fiscal Year 2018 was a nice year for tippers to the U.S. Securities and Exchange Commission (“SEC”) whistleblower program (“SEC program”), thanks to some misbehaving companies. The SEC made record-breaking payouts of about $168 million to 13 whistleblowers in 2018. The SEC program was initiated to encourage specific, timely and credible tips to the SEC of corporate misconduct, such as insider trading and fraud. Since its creation in 2010, the SEC program has awarded over $326 million to 59 whistleblowers.
Awards are only made for significant information regarding serious violations of American federal securities laws. Whistleblowers need not be American to qualify for an award, however, and some successful recipients have been foreign nationals based outside the U.S. In 2018, aside from the United States, the highest number of tips came from individuals located in Canada, the U.K. and Australia.
The SEC program is profitable. Although whistleblowers received payouts of around $326 million, the information has enabled the SEC to levy about $1.7 billion in monetary sanctions against corporate offenders. The SEC program is popular. There were over 5,200 tips in 2018, a large increase over previous years, partly due to a recent American Supreme Court decision requiring securities whistleblowers to report to the SEC to qualify for certain employment retaliation protections. Overall, it appears to be a big success.
Ontario also has a whistleblower program (“Ontario program”). The Ontario Securities Commission’s (“OSC”) Office of the Whistleblower accepts reports of possible violations of Ontario’s securities laws that could harm investors. The amount of the whistleblower award is up to $5 million, based on the total monetary sanctions imposed in the relevant enforcement proceeding. The Ontario program was established in 2016 and similarly to the SEC program, requires tips that are of high quality, timely, specific and which include credible facts. The Ontario program has received about 200 tips since its inception. To encourage reporting, both the Ontario and SEC programs protect whistleblowers against company retaliation or reprisals for whistleblowing. Both programs also preclude restrictive clauses in employment contracts and confidentiality agreements that would silence whistleblowing.
Statistics on the success of Ontario’s program are not available yet, perhaps due to its infancy. However, for potential whistleblowers weighing the risks of tattling versus the possible million-dollar payouts, the SEC program is much more attractive. As mentioned before, the maximum whistleblower award in the Ontario program is $5 million. By contrast, the SEC program has no maximum and the amount of award is solely at the discretion of the SEC. For example, the SEC made a $50 million joint award to two individuals in March 2018. During consultations, the OSC did consider whether to impose a cap at all on the whistleblower payouts, and had originally proposed $1.5 million, but increased this amount in response to some expert comments. One respected study from the University of Toronto suggests that money is a greater incentive for employees to whistleblow than reputational or other considerations and recommends expanding monetary incentives. Only time will tell whether the Ontario program will achieve comparable success to its southern counterpart even with the payout cap.
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