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Proposed Limits to Whistleblower Awards Draw Criticism

The SEC recently proposed amendments to its whistleblower rules that may broaden the type of tips that are awarded but also may limit the amount of awards. One amendment would allow for the payment of awards based on money collected under certain arrangements with the Department of Justice, a state attorney general or a settlement agreement entered into by the SEC outside of the context of a judicial or administrative proceeding. The second proposed amendment seeks to eliminate potential double recovery in cases where the SEC determines that there is a separate whistleblower award scheme that more appropriately applies to the enforcement action. The amendments also seek to revise small and exceedingly large awards and would authorize the SEC to adjust the award percentage upward or downward under certain circumstances (subject to the 30% statutory maximum and 10% statutory minimum) to an amount it determines more appropriately achieves the program’s objectives of rewarding meritorious whistleblowers and sufficiently incentivizing future whistleblowers. Commissioner Kara Stein was among several observers who assailed the proposal to limit the awards. Stein stated that she was unsure the SEC had such authority and that granting the Commission discretion to reduce an award could be used as a means to weaken the Whistleblower Program. Meanwhile, the CFTC recently announced an award of approximately $30 million to a whistleblower, the largest award made by the CFTC’s Whistleblower Program.