Материал: guide

The Sarbanes-Oxley Act of 2002 and the Dodd-Frank Act of 2010 both contain provisions affecting whistleblowers who report FCPA violations. Sarbanes-Oxley prohibits issuers from retaliating against whistleblowers and provides that employees who are retaliated against for reporting possible securities law violations may file a complaint with the Department of Labor, for which they would be eligible to receive reinstatement, back pay, and other compensation.390 Sarbanes-Oxley also prohibits retaliation against employee whistleblowers under the obstruction of justice statute.391

In 2010, the Dodd-Frank Act added Section 21F to the Exchange Act, addressing whistleblower incentives and

protections. Section 21F authorizes SEC to provide monetary awards to eligible individuals who voluntarily come forward with high quality, original information that leads to an SEC enforcement action in which over $1,000,000 in sanctions is ordered. 392 The awards range is between 10% and 30% of the monetary sanctions recovered by the government. The Dodd-Frank Act also prohibits employers from retaliating against whistleblowers and creates a private right of action for employees who are retaliated against.393

Furthermore, businesses should be aware that retaliation against a whistleblower may also violate state, local, and foreign laws that provide protection of whistleblowers.

On August 12, 2011, the final rules for SEC’s Whistleblower Program became effective. These rules set forth the requirements for whistleblowers to be eligible for awards consideration, the factors that SEC will use to determine the amount of the award, the categories of individuals who are excluded from award consideration, and the categories of individuals who are subject to limitations in award considerations.394 The final rules strengthen incentives for employees to report the suspected violations internally through internal compliance programs when appropriate, although it does not require an employee to do so in order to qualify for an award.395

Individuals with information about a possible violation of the federal securities laws, including FCPA violations, should submit that information to SEC either online through SEC’s Tips, Complaints, and Referrals (TCR) Intake and Resolution System (available at https://denebleo.sec.gov/TCRExternal/disclaimer.xhtml) or by mailing or faxing a completed Form TCR to the Commission’s Office of the Whistleblower.

Whistleblowers can submit information anonymously. To be considered under SEC’s whistleblower program as eligible for a reward, however, the information must be submitted on an anonymous whistleblower’s behalf by an attorney.396 Whether or not a whistleblower reports anonymously, SEC is committed to protecting the identity of a whistleblower to the fullest extent possible under the statute.397 SEC’s Office of the Whistleblower administers SEC’s Whistleblower Program and answers questions from the public regarding the program. Additional information regarding SEC’s Whistleblower Program, including answers to frequently asked questions, is available online at http://www.sec.gov/whistleblower.

SEC Office of the Whistleblower

100 F Street NE, Mail Stop 5971

Washington, DC 20549

Facsimile: (703) 813-9322

Online Report Form: http://www..sec..gov/ whistleblower

First, those seeking an opinion should evaluate whether their question relates to actual, prospective conduct.401 The opinion procedure cannot be used to obtain opinions on purely historical conduct or on hypothetical questions. DOJ will not consider a request unless that portion of the transaction for which an opinion is sought involves only prospective conduct, although the transaction as a whole may have components that already have occurred. An executed contract is not a prerequisite and, in most—if not all—instances, an opinion request should be made before the requestor commits to proceed with a transaction.402 Those seeking requests should be aware that FCPA opinions relate only to the FCPA’s anti-bribery provisions.403

Second, before making the request, the company or individual should check that they are either an issuer or a domestic concern, as only those categories of parties can

receive an opinion.404 If the transaction involves more than one issuer or domestic concern, consider making a request for an opinion jointly, as opinions only apply to the parties that request them.405

Third, those seeking an opinion must put their request in writing. The request must be specific and accompanied by all relevant and material information bearing on the conduct and circumstances for which an opinion is requested. Material information includes background information, complete copies of all operative documents, and detailed statements of all collateral or oral understandings, if any. Those seeking opinions are under an affirmative obligation to make full and true disclosures.406 Materials disclosed to DOJ will not be made public without the consent of the party submitting them.407