Whistleblower Confidentiality

The Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”) contains one of the strongest confidentiality provisions for whistleblowers.  Under the Act, the SEC is prohibited from disclosing “any information, including information provided by a whistleblower to the Commission, which could reasonably be expected to reveal the identity of a whistleblower,” unless and until the information is required to be disclosed to a defendant or a respondent in a proceeding instituted by the government.

Although the information is to remain confidential and privileged, not subject to civil discovery, or other legal process, and not subject to disclosure under the Freedom of Information Act, the Dodd-Frank Act permits the SEC, in its discretion, to disclose information to certain entities, if necessary, to accomplish the purpose of the Act and protect investors.  The information, which does not lose its confidential and privileged status, may be made available to:  the U.S. Attorney General, a regulatory authority, a self-regulatory organization, a state attorney general in connection with any criminal investigation, a state regulatory authority; the Public Company Accounting Oversight Board, a foreign security authority; and a foreign law enforcement authority.  With respect to foreign authorities, the information shall be maintained “in accordance with assurance of confidentiality” as the SEC determines appropriate.

In addition to providing for the confidentiality of information, the Act allows whistleblowers to report fraud anonymously.  However, when a person seeks to blow the whistle anonymously, the Act requires the whistleblower to “be represented by counsel.”  So strong is the Dodd-Frank Act’s confidentiality provision that in some cases, the whistleblower’s identity may remain unknown even to the SEC until the time comes for the payment of a reward.

Bernstein Liebhard LLP is dedicated to providing experienced, dedicated, and aggressive representation for whistleblowers looking to report violations of the federal securities laws to the SEC.  Our attorneys will work closely with you and assist you in presenting original information that can result in a reward from the SEC.  If you want to blow the whistle, and have questions about your confidentiality under the SEC Whistleblower Program, contact Michael S. Bigin or Laurence J. Hasson.