The US Securities and Exchange Commission (SEC) always hated the whistleblower program that Congress imposed on it as part of Dodd Frank reforms. Congress was responding to the SEC’s grotesque institutional failure in ignoring Harry Markopolos’ repeated, detailed warnings about the Bernie Madoff fraud, a Ponzi scheme that reached $65 billion due to SEC inaction.
But as we’ll describe, the SEC issued new guidance – on a Saturday night in the summer – that guts the whistleblower program by imposing new standards that look to be contrary to the intent of Congress by making it difficult to win awards for large-scale frauds, and then reducing the payouts on them. It looks like career-minded SEC officials who resented that whistleblower filings could force them to probe wrong-doings of prospective employers are making sure the agency will only hand out parking tickets.
Admittedly, Congress had set out to enfeeble the SEC, by keeping it budget-starved and having Congressmen like Joe Lieberman threaten to cut its funding even further if it went too aggressively after big financiers. The agency had retreated to focusing enforcement almost entirely on insider trading, to the degree that became almost incapable of seeing the world any other way. For instance, it botched its first major crisis case involving the collapse of two Bear Stearns hedge funds, by bizarrely pursuing the execs managing the funds as insider traders, rather than understanding that they were victims of other Wall Street firms (and perhaps even Bear’s own trading desks) that were selling toxic subprime mortgage securities and CDOs. ‘
Nevertheless, the new whistleblower program established an awards fund entirely outside the SEC’s budget, and also tasked the SEC to set up a “Whistleblower Office.” The agency was obligated to pay sources compensation set as a portion of the SEC’s recovery if they contributed information that was valuable to an enforcement action.
The program went live in 2012,…