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Amendments to the Commission's Whistleblower Program Rules

Sept. 23, 2020

Thank you, Mr. Chairman.  The whistleblower program has, in its decade of existence, become an integral part of our enforcement program.  People have brought us countless tips, and many of those tips inform us for the first time of misconduct that needs to be investigated or help us connect the dots in an existing investigation.  Many of these whistleblowers would have come to us even in the absence of the prospect of an award.  Our ability to pay awards, however, enables us to recognize whistleblowers’ contributions to the integrity of our markets in a concrete way.  As Justice Ginsburg explained in Digital Realty Trust, Congress “recognize[ed] that ‘whistleblowers often face the difficult choice between telling the truth and committing ‘career suicide’.’”[1] An award may encourage an individual to make the difficult choice to tell the truth by replacing the income she loses if she is fired from her job and by providing some offset for the reputational, personal, and even physical threats that whistleblowers can endure as a result of alerting us to wrongdoing.

We have drawn from our decade of experience with the rule lessons about how to administer this program effectively.  One lesson that has emerged is the importance of paying whistleblowers quickly.  These amendments will help us to do that by focusing the time and attention of our Office of Whistleblower staff on meritorious award claims.  We also have gained experience with a wide variety of whistleblower claims; the facts and circumstances are unique to each matter.  The amended rule allows us to look at each matter on its facts, but also lays out the parameters that guide our decision-making and give whistleblowers greater insight into what they can expect to receive.

I support the recommendation before us.  I appreciate the commenters who helped us think through an array of difficult issues.  I also am grateful for the tireless efforts of staff in the Division of Enforcement—particularly the Office of the Whistleblower, the Office of General Counsel, and the Division of Economics and Risk Analysis.  I do not have any questions.

[1] 138 S.Ct. 767, 773-74 (2018) (citing S Rep. No. 111-176, pp. 111, 112 (2010) (cleaned up)).

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