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SEC Continues To Pay Out Millions In Secrecy

Earlier this week, the Securities and Exchange Commission announced awards to three whistleblowers totaling more than $7 million. That is about all anyone can say about the awards.  The SEC’s order is only 448 words long, including numerous occurrences of the word “redacted”.  It doesn’t name the company or describe the nature of the investment scheme.

Even lottery winners don’t enjoy anonymity

In prior posts, I have noted that Congress requires that the SEC keep whistleblower identities confidential.  However, this obligation may not exist for time and all eternity.  Section 21F(h)(2) of the Securities Exchange Act (15 U.S.C. 78u-6(h)(2)) prohibits the SEC, its officers and employees from disclosing any information, including information provided by a whistleblower to the SEC, that could reasonably be expected to reveal the identity of a whistleblower.  However, this prohibition exists only “unless and until” the information is required to be disclosed to a defendant or respondent in connection with a public proceeding instituted by the SEC or certain other entities.  By using the conjunctions “unless and until”, Congress imposed a terminus on the SEC’s obligation of confidentiality.  Indeed, it makes little sense to prohibit disclosure once a whistleblower’s identity becomes known in public enforcement proceedings.  The SEC, however, substitutes “except” for “unless and until” in describing its obligation in Rule 240.21F-7.  Why should whistleblower identities be disclosed.  Perhaps California Assemblyman Philip Y. Ting explained it best when asked whether the names of California Lottery winners should be made public:

“Winners need to be public so the public has faith in the lottery.  Beneficiary anonymity cannot overshadow governmental accountability to the public.”

Lottery officials say identifying winners a must” San Francisco Chronicle (Jan. 16, 2016).  Without transparency, there can be no public trust in the SEC’s whistleblower program.

The SEC also insouciantly continues to claim in its press release “No money has been taken or withheld from harmed investors to pay whistleblower awards.” See Is This SEC Claim False And Misleading?  Ask yourself, just where is the money to pay these awards coming from?  If it is being paid by companies, harmed investors (i.e., the stockholders) are footing the bill.

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About this Author

Keith Paul Bishop, Corporate Transactions Lawyer, finance securities attorney, Allen Matkins Law Firm

Keith Paul Bishop is a partner in Allen Matkins' Corporate and Securities practice group, and works out of the Orange County office. He represents clients in a wide range of corporate transactions, including public and private securities offerings of debt and equity, mergers and acquisitions, proxy contests and tender offers, corporate governance matters and federal and state securities laws (including the Sarbanes-Oxley Act of 2002 and the Dodd-Frank Act), investment adviser, financial services regulation, and California administrative law. He regularly advises clients...