Image of Anonymous Whistleblowing: Does the SEC Whistleblower Program Protect a Whistleblower’s Identity?

Anonymous Whistleblowing: Does the SEC Whistleblower Program Protect a Whistleblower’s Identity?

Anonymous Whistleblowing to the SEC Whistleblower Office

Under the SEC Whistleblower Program, the SEC will issue awards to whistleblowers who provide original information that leads to enforcement actions with total monetary sanctions in excess of $1 million. Since 2012, the SEC has issued nearly $1 billion in awards to whistleblowers, which includes awards to our clients totaling millions of dollars. Unlike other whistleblower-reward programs, the SEC’s program allows whistleblowers to submit tips anonymously if they are represented by an attorney.  We have succeeded in obtaining awards for clients while enabling them to remain anonymous.

Many SEC whistleblowers are uncertain about what exactly anonymous whistleblowing means. Indeed, for many whistleblowers, it is imperative that their identity remain confidential throughout the entire SEC whistleblower process.

Based on our substantial experience representing SEC whistleblowers both domestically and internationally, we have compiled frequently asked questions about anonymous whistleblowing to the SEC, including the following questions:

  • Can I still receive an award if I submit a tip anonymously?
  • How will my attorney submit an anonymous tip on my behalf?
  • How could an anonymous tip potentially expose me as the whistleblower?
  • Are there any disadvantages to anonymous whistleblowing?
  • Will the SEC ever know my identity if I submit a tip anonymously?

Prior to submitting a tip to the SEC, whistleblowers should assess the risks entailed in whistleblowing and options to mitigate those risks.

We have obtained awards for several SEC whistleblowers.  To find out if you may qualify for an SEC whistleblower award, contact the Director of our SEC whistleblower practice at mstock@zuckermanlaw.com or call our leading SEC whistleblower lawyers at (202) 930-5901 or (202) 262-8959. All inquiries are confidential.

Can I still receive an award if I submit a tip anonymously?

Yes, but only if you have an attorney represent you in connection with both: (1) your submission of information; and (2) your claim for an award. According to an SEC Whistleblower Office’s Annual Report to Congress, almost a quarter of the award recipients reported anonymously to the SEC Office of the Whistleblower through an attorney.

See our article: How the Best SEC Whistleblower Law Firms Advocate for SEC Whistleblowers.

How will my attorney submit an anonymous tip to the SEC on my behalf?

The Form TCR (Tip, Complaint, or Referral) is the form SEC whistleblowers and their attorneys use to submit tips to the SEC Office of the Whistleblower. When a whistleblower submits a tip anonymously through an attorney, the whistleblower is not required to put his or her name on the form. Rather, the whistleblower’s attorney will provide their contact information and will be the SEC’s point of contact for the submission. In addition, the attorney will be required to, among other things, certify that they:

  • Reviewed the whistleblower’s submission for completeness and accuracy;
  • Verified the whistleblower’s identity by viewing his or her valid unexpired government-issued identification (e.g., driver’s license, passport);
  • Obtained the whistleblower’s consent to disclose his or her name to the SEC if there are concerns that the whistleblower may have knowingly and willingly made false statements or used false documents in the submission; and
  • Retain an original copy of the TCR, with Section F signed by the whistleblower.

Section F of Form TCR is the whistleblower’s declaration that the submission is “true, correct and complete to the best of my knowledge, information and belief.” Importantly, whistleblowers sign this declaration under the penalty of perjury. Whistleblowers should consult with their attorney if they have any concerns about the declaration.

How could an anonymous submission to the SEC potentially expose me as the whistleblower?

The documents or information contained in a whistleblower’s submissions could potentially expose a whistleblower’s identity. As such, whistleblowers and their attorneys should first assess whether the benefit of providing the evidence outweighs the risk of exposing the whistleblower’s identity. If a whistleblower chooses to provide the evidence, the whistleblower should explicitly identify it in Section D, Part 11 of the Form TCR and explain how the evidence could reveal the whistleblower’s identity if disclosed to a third party.

Notably, even when a whistleblower submits potentially compromising evidence, the SEC is required to shield the whistleblower’s identity. Specifically, Section 21F(h)(2) of the Exchange Act requires, with certain exceptions, that the SEC “shall not disclose any information, including information provided by a whistleblower to the [SEC], which could reasonably be expected to reveal the identity of a whistleblower.” Thus, even when the SEC obtains evidence that could expose a whistleblower’s identity, the SEC is required to go out of its way to protect the identity of the whistleblower.

However, there are limits on the SEC’s ability to shield a whistleblower’s identity and in certain circumstances the SEC must disclose it to outside persons or entities. For example, in an administrative or court proceeding, the SEC may be required to produce documents or other information which could reveal a whistleblower’s identity. In addition, as part of the SEC’s ongoing investigatory responsibilities, the SEC may use information the whistleblower has provided during the course of its investigation. In appropriate circumstances, the SEC may also provide information, subject to confidentiality requirements, to other governmental or regulatory entities.

Prior to submitting information to the SEC, whistleblowers should consult with an experienced SEC whistleblower law firm to determine the appropriate steps to take to maximize the likelihood that their identity is protected throughout the process.

Are there any disadvantages to anonymous whistleblowing?

Anonymous whistleblowing offers many obvious benefits, such as protecting whistleblowers from retaliation or harm to their career. But there can be some minor disadvantages.

When Submitting the Form TCR

Disclosing fraud to the SEC anonymously may limit the type of evidence that can be provided to the SEC. For example, a whistleblower may be concerned that certain documents or information that prove the fraud may also reveal their identity. Whistleblowers must weigh the risk of exposing their identity to the SEC (as mentioned, the SEC is required by law to keep the information confidential) with the risk that the SEC will not act on their tip. Since 2011, the SEC Whistleblower Office has received more than 40,200 tips from whistleblowers. In fiscal year 2020 alone, the office received over 6,900 whistleblower tips. As the SEC has limited investigative resources, typically it will pursue a tip only where it receives specific, timely, and credible information about federal securities laws violations. In certain circumstances, a detailed and credible tip could potentially reveal the whistleblower’s identity to the SEC.

For example, a disclosure from a senior-level corporate insider, such as an executive, can lend credibility to the tip because senior company officials often know who at the company has authorized or facilitated a fraud scheme. But providing details about a whistleblower’s background or position within a company could expose the whistleblower’s identity. Again, the whistleblower should seek advice to weigh the risk of exposing their identity to the SEC against risk that the SEC will not act on their tip.

When the SEC Investigates a Whistleblower’s Tip

If a whistleblower and the whistleblower’s attorney draft a tip that grabs the SEC’s attention, the SEC will often request to have a telephone interview with the whistleblower (who can remain anonymous or deny the request) or the whistleblower’s attorney to gain a better understanding of the federal securities laws violations. Furthermore, the SEC may request additional documents or information to confirm the alleged violations. If the SEC is persuaded by the interviews and information, it will assign the tip to one of its 11 Regional Offices, an Enforcement Specialized Unit, or an Enforcement Associate Director Group located in the SEC’s Headquarters.

Whistleblowers can be very helpful during this back-and-forth with the SEC, especially whistleblowers who have intimate knowledge and documentation of the violations. Notably, the SEC may increase a whistleblower’s award based on the assistance provided by a whistleblower. But responding to a request from the SEC for additional information could inadvertently reveal information that exposes the whistleblower’s identity.

Will the SEC ever know my identity if I submit a tip anonymously?

Yes, however, whistleblowers will only have to disclose their identity to the SEC at the end of the whistleblowing process when applying for an award. (Note: The SEC will not disclose the whistleblower’s identity publicly, even at the time of announcing an award, e.g., see the SEC Office of the Whistleblower’s Final Orders for award determinations.) In the application for an award, known as the Form WB-APP, the whistleblower must disclose his or her identity to the SEC so that the Commission can determine whether the whistleblower is “eligible” for an award under the program. Certain whistleblowers, such as key compliance personnel, are not eligible for awards, unless an exception applies.

In summary, the SEC Whistleblower Program offers whistleblowers the opportunity to disclose information anonymously and there are safeguards in place throughout the process to protect whistleblower confidentiality. But in certain circumstances, revealing a whistleblower’s identity to the SEC can increase the likelihood that the SEC will pursue the tip.

Do the confidentiality requirements of the SEC Whistleblower Program apply to other government agencies using the whistleblower’s information?

Yes.  If the SEC shares the whistleblower’s submission with another agency, such as informing the Department of Justice of a Foreign Corrupt Practices Act (FCPA) violation, Section 21F(h)(2)(D)(ii)(I) of the Exchange Act provides that the other agency “shall maintain such information as confidential” subject to the same confidentiality requirements that apply to the Commission under Section 21F(h)(2)(A).

What is the Process for Seeking an SEC Whistleblower Reward?

See our article: What is the Process for a Whistleblower to Obtain an SEC Whistleblower Award?

Are SEC Whistleblowers Protected Against Retaliation?

Experienced, Top-Rated SEC Whistleblower Attorneys

To learn more about the SEC’s Whistleblower Program, download our ebook SEC Whistleblower Program: Tips from SEC Whistleblower Attorneys to Maximize an SEC Whistleblower Award

SEC Whistleblower Attorneys

The SEC has jurisdiction over a wide range of industries and entities – both public and private. If you have information that you would like to report to the SEC Whistleblower Office, contact the experienced SEC whistleblower lawyers at leading whistleblower law firm Zuckerman Law for a free, confidential consultation.  Click here or call us today at 202-262-8959.

Click below to hear SEC whistleblower lawyer Matt Stock’s tips for SEC whistleblowers:

SEC whistleblower lawyersThe experienced whistleblower lawyers at Zuckerman Law represent whistleblowers worldwide before the SEC under the Dodd-Frank SEC Whistleblower Program.  The firm has a licensed Certified Public Accountant and Certified Fraud Examiner on staff to enhance its ability to investigate and disclose complex financial fraud to the SEC, and two of the firm’s attorneys served on the Department of Labor’s Whistleblower Protection Advisory Committee and in senior leadership positions at a government agency that protects whistleblowers.

Firm Principal Jason Zuckerman has been named by Washingtonian Magazine as a “Top Whistleblower Lawyer” and the firm has been ranked by U.S. News as a Tier 1 Firm in Labor & Employment Litigation.   Recently Washingtonian magazine named two of our attorneys top whistleblower lawyers. U.S. News and Best Lawyers® have named Zuckerman Law a Tier 1 Law Firm in the Washington D.C. metropolitan area.

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Matthew Stock is the Director of the Whistleblower Rewards Practice at Zuckerman Law. He represents whistleblowers around the world in SEC, CFTC and IRS whistleblower claims. He is also a Certified Public Accountant, Certified Fraud Examiner and former KPMG external auditor.

Jason Zuckerman, Principal of Zuckerman Law, litigates whistleblower retaliation, qui tam, wrongful discharge, and other employment-related claims. He is rated 10 out of 10 by Avvo, was recognized by Washingtonian magazine as a “Top Whistleblower Lawyer” in 2015 and selected by his peers to be included in The Best Lawyers in America® and in SuperLawyers.