The best way to make your tip useful is to provide specific, timely, and credible information.
As noted in an annual report of the SEC OWB, “Whistleblower tips that are specific, credible, and timely, and that are accompanied by corroborating documentary evidence, are more likely to be forwarded to investigative staff for further analysis or investigation. For instance, if the tip identifies individuals involved in the misconduct, provides examples of particular fraudulent transactions, or points to non-public materials evidencing a fraud, the tip is more likely to be assigned to Enforcement staff for investigation.”
A recent decision in Erhart v. Bofi Holdings clarifies that whistleblowers can disclose to the SEC “appropriate” company documents that are “reasonably necessary” to disclose fraud. But the judge warned that wholesale stripping of confidential documents (“vast and indiscriminate”) may not immunize the whistleblower from potential liability.
A whistleblower should avoid disclosing to the SEC information protected by attorney-client privilege (e.g., documents, including emails, that reveal advice from inside or outside counsel).
Click below to hear SEC whistleblower lawyer Matt Stock’s tips for SEC whistleblowers:
To learn more about the SEC Whistleblower Program, download Zuckerman Law’s eBook: SEC Whistleblower Program: Tips from SEC Whistleblower Attorneys to Maximize an SEC Whistleblower Award:
SEC Whistleblower Rule Excludes Only Information Obtained in Violation of Criminal Law
As explained in the May 2011 SEC release (Release No. 34-64545) adopting the rules governing the SEC Whistleblower Program, there are very few restrictions on the information that a whistleblower can submit to the SEC:
“Under Rule 21F-4(b)(4)(iv), a whistleblower’s information will be excluded from the definition of “independent knowledge” if he or she obtained the information by a means or in a manner that is determined by a domestic court to violate applicable Federal or state criminal law.
We continue to believe that this exclusion is consistent with the intent of Congress that the whistleblower award program not be used to encourage or reward individuals for obtaining information in violation of Federal or state criminal law—even if the information might otherwise assist our enforcement of the Federal securities laws. Nonetheless, we have decided that the exclusion will only apply where a domestic court determines that the whistleblower obtained the information in violation of Federal or state criminal law. We believe that Federal and state courts are better positioned than we are to determine whether a whistleblower obtained the information in violation of criminal law.
We have determined not to extend the exclusion to cover information obtained in violation of domestic civil or foreign law, or judicial or administrative protective orders. Commenters raise a number of persuasive points supporting and opposing these additional exclusions. With respect to foreign law, we recognize that other countries often have legal codes that vary greatly from our own, and we are not in a position to decide as a categorical rule when it is appropriate to deny an award based on foreign law. With respect to material that may have been obtained in violation of domestic civil law, we believe that, on balance, these exclusions would sweep too broadly and be difficult to apply consistently given the patchwork of state and municipal civil laws that might be implicated.
Finally, we find persuasive the comments that protective orders are frequently negotiated between parties to private litigation and are generally intended to protect proprietary information against public disclosure or improper use. It would be against public policy for litigants to obtain a protective order, or to seek enforcement of such an order, for the purpose of preventing the disclosure of information regarding violations of law to a law enforcement agency. For this reason, we have determined not to exclude whistleblowers who provide us with information that an opposing party may contend comes within the scope of a protective order.”
How to Successfully Navigate the SEC Whistleblower Process
Tips to Qualify for an SEC Whistleblower Award
The SEC is looking for specific, credible and timely information about violations of federal securities laws. The more details of which the lawyer can provide the better. However, the SEC is not looking for all types of information. For example, the SEC does not want any documents that may violate the attorney client privilege.