Richard Steinberg 270004HRBG firstname.lastname@example.org | | Tags:  openpages risk dodd-frank grc whistleblowing sec | 0 Comments | 1,261 Visits
The SEC’s final rules implementing Dodd-Frank’s whistle blowing provisions failed to remove angst among compliance officers and general counsels. While there are some incentives for potential whistleblowers to first report alleged misconduct via internal reporting channels, there’s no requirement to do so – and many are concerned the internal channels will be bypassed. And going outside is on the rise. It’s been reported that in only seven weeks after the SEC’s program began, there were 334 whistleblower filings. Compliance officer concerns are well founded – that bypassing internal channels will deprive the company of being able to investigate and fix problems before they grow, and company personnel will need to play catch up with investigations in reaction to SEC probes.
We can point to many resolved whistle blowing cases for clear evidence of the potential impact of the SEC’s still relatively new program. One homeowner delinquent on her mortgage ultimately received $18 million for reporting suspected use of fraudulent documents in the bank’s foreclosure process. It’s said that in acting against this homeowner – an attorney and career insurance fraud investigator – the bank “picked the wrong person at the wrong time in the wrong place,“ but the robo-signing and other compliance failures were widespread and surfaced from a number of sources. Nonetheless, this individual was one of six whistleblowers receiving $46.5 million said to be part of the five-bank $25 billion settlement. In an unrelated case, a member of a major bank’s quality control team who reportedly was displeased that the misconduct wasn’t reported to regulators, decided to do so herself – ending up with a settlement of $31 million. And there are many more.
Worth noting is a recent survey that indicates more than one-third of American workers have seen misconduct on the job. While many instances of misconduct have been reported through internal channels, it appears the vast majority have not. Why? The survey shows it’s because of fear of not being able to remain anonymous, and of retaliation. Those two factors, plus the possibility of monetary reward, are reported as key factors in incentivizing internal reporting. And the survey also shows two-thirds of respondents didn’t know about the SEC’s program – at least not yet.
Certainly it’s in a company’s interest to be first to know about alleged misconduct, and compliance officers are working hard to upgrade policies, training, communications, and the internal whistleblower systems, all to encourage internal reporting. Actions to ensure anonymity, with positive responses and nothing close to retaliation, are expected to help. Some companies have begun to pay bounties for valued reports. There are indications that when employees believe their reports will be taken seriously without adverse repercussions, there’s increased likelihood for internal reporting. Law firms and others have provided guidance on which companies are acting. However, it remains to be seen the extent to which the possibility of a huge, life-changing payday by the SEC will be too much to resist. Time will tell.