Series 9, Episode 6: Whistleblower protections demand scrutiny in separation and confidentiality agreements

Whistleblower cases have re-emerged in a growing share of enforcement actions brought by the U.S. Securities and Exchange Commission (SEC). SEC Chair Gary Gensler and Enforcement Director Gurbir Grewal have emphasized the need to protect individuals who report misconduct. Last week, Grewal said, "The SEC's whistleblower program is a critical part of our enforcement efforts. Each year we receive thousands of whistleblower tips, and throughout the history of the program, those tips have resulted in billions in monetary recovery."In this episode of Compliance Clarified, Todd Ehret, senior regulatory intelligence expert for Thomson Reuters Regulatory Intelligence, is joined by Richard Satran, senior correspondent for Thomson Reuters Regulatory Intelligence, where they discuss the current round of whistleblower enforcement actions from the SEC.Since the implementation of the SEC's whistleblower program under Section 922 (http://go-ri.tr.com/iEXjLU) of the Dodd-Frank Act in 2011, the SEC has awarded more than $1 billion to whistleblowers who have submitted tips regarding securities violations that have resulted in numerous enforcement actions.Securities Exchange Act Rule 21F-17(a) (http://go-ri.tr.com/N6wOnr) states, "No person may take any action to impede an individual from communicating directly with the Commission staff about a possible securities law violation, including enforcing, or threatening to enforce, a confidentiality agreement with respect to such communications."The SEC Office of Examinations (http://go-ri.tr.com/Q8XtDG), in a 2016 alert, warned that, at minimum, in any examinations, it will review for whistleblower rule violations in compliance manuals, codes of ethics, employment agreements, and severance agreements.Many of the enforcement actions involve the language used in separation and non-disclosure agreements. In a 2016 enforcement action involving Anheuser-Busch InBev, the company allegedly included very broad non-disclosure language in its separation agreements, asking employees to "keep in strict secrecy and confidence any and all unique, confidential and/or proprietary information" belonging to the company. Even though this agreement did not prohibit whistleblower communications with the SEC expressly, the lack of a carve-out citing whistleblower protections was still enough for the SEC to flag it as a Rule 21F-17(a) violation.The Compliance Clarified podcast series covers a wide range of topics that affect compliance officers at financial institutions and aims to help them navigate the often-challenging regulatory environment. It considers the significant challenges of the day and offers practical ideas for emerging best practices.The podcast is available on Google, Apple, and Spotify.Additional Resources:Loophole in FCA whistle-blowing rules leaves regulator "disconnected," says lawmaker: http://go-ri.tr.com/2OkJvjSEC targets separation and severance agreements that impede whistleblowers: https://regintel-content.thomsonreuters.com/document/IB012302073DE11EEB0FFC2B000B13E50For more information about Thomson Reuters Regulatory Intelligence head to: https://regintel-content.thomsonreuters.com/ Compliance Clarified is a podcast from Thomson Reuters Regulatory Intelligence.Listen to wide-ranging, insightful discussions on all things compliance for financial services firms. We delve into the hot topics of the day, the challenges faced and offer up practical ideas for emerging good practice. We de-mystify regulation and explore the art, as well as the science, of the ever-expanding role of the compliance officer.  Enforcements, digital transformation, regulatory change, governance, culture, conduct risk – anything and everything impacting the compliance function is up for discussion.