United States: Regulators Offer Insights Into SEC, CFTC, And OSHA Whistleblower Program's Trends And Priorities

On July 16, 2019, three prominent whistleblower law regulators spoke at PLI's Corporate Whistleblowing in 2019, which was co-chaired by Orrick partners Mike Delikat and Renee Phillips. With the standard disclaimer that their comments and opinions were their own and not the official comments of their respective agencies, each spoke about their agencies' whistleblower program's current progress, challenges, and priorities.

CFTC's Whistleblower Office


The Director of the CFTC's Whistleblower Office, Christopher Ehrman, spoke first about some emerging issues for the CFTC in 2019. In the coming years, Ehrman said he hopes to see the CFTC move more into analytics and set up an office of market intelligence. Additionally, while the CFTC is already the primary regulator for the derivatives market in the United States, Ehrman shared that "virtual currency is a big thing and will only get bigger." The CFTC currently has anti-fraud authority in the virtual currency space.

Ehrman also shared some statistics for the CFTC's whistleblower actions. Since 2014, the CFTC has awarded over 90 million in whistleblower awards. The number of "TCRs" or "Tips, Complaints, and Referrals" from whistleblowers is down in 2019 as compared to previous years, a trend Ehrman attributes to the Commission's decreased advertising. However, Ehrman has noticed an improvement in the quality of the TCRs that are coming in to the agency.

Ehrman also reflected on the positive effect of the CFTC's "summary proceeding" process for disposing of facially deficient whistleblower applications. This permits the agency to allocate resources effectively and avoid spending money and time on applications that "couldn't possibly recover." Since 2017, when CFTC instituted the summary proceeding process, it has been able to dispose of over 100 applications with minimal agency resources.

SEC's Office of the Whistleblower


Jane Norberg, the Chief of the SEC's Office of the Whistleblower ("OWB"), spoke about the recent trends and priorities of the SEC's OWB. Norberg reported that the SEC received over 5,200 tips from whistleblowers in fiscal year 2018, approximately 14 tips per calendar day. These tips came from every state in the United States and 72 countries.

Norberg noted that since the inception of the whistleblower program in 2011, the SEC has received over 28,000 whistleblower tips. Norberg emphasized that the whistleblower program brings "real value to the harmed investors," as its work has led to the return of close to $2 billion to harmed investors.

Norberg shared that 2018 was "record breaking for awards and tips." The SEC awarded more money in fiscal year 2018 than every year since the program's inception combined. The highest ever award, $83 million to three whistleblowers, was announced in March 2018. In September 2018, the SEC announced a $54 million award to two people. Finally, in March 2019, the SEC awarded $50 million to two whistleblowers. Norberg believes that these blockbuster awards have increased the number of tips coming into the SEC. As she put it "the more publicity, the more whistleblowers come forward." She also noted an upward spike in the number of tips following the Supreme Court's ruling in Somers v. Digital Realty Trust, Inc. That case held that Dodd-Frank's anti-retaliation provisions apply only to whistleblowers who make reports to the SEC, not to whistleblowers who solely report issues to company management.

Finally, Norberg mentioned the Whistleblower Reform Act of 2018, which recently passed the House by a 410 to 12 vote, but has yet to pass the Senate. In response to the Supreme Court's Digital Realty decision, the Reform Act would amend Dodd-Frank to protect whistleblowers who make internal reports to company management and not just those who report to the SEC. Norberg sees this as "correct[ing] a gap in the scheme of protections" for whistleblowers.

OSHA's Whistleblower Program


Teri Wigger, Assistant Regional Administrator for OSHA Region 2, which covers New York, New Jersey, Puerto Rico, and the Virgin Islands, spoke about how OSHA now has jurisdiction for whistleblower protections under 23 different statutes, including a recently enacted IRS whistleblower protection law. She reminded the audience that, unlike her colleagues at the CFTC and SEC, OSHA does not take enforcement action based on the conduct underlying a whistleblower tip. Rather, OSHA is responsible only for investigating allegations of retaliation against whistleblowers. That being said, 22 of the 23 statutes under OSHA's purview identify a federal partner agency that automatically receives a copy of every complaint. These agencies can then investigate the underlying conduct.

Wigger shared some recent trends from OSHA. In fiscal year 2018, OSHA acted upon and investigated 3,007 complaints of retaliation. Seventy percent of those complaints fell into the categories of safety and health. Only 6% of the complaints were under Sarbanes-Oxley and only 2% were under the Consumer Financial Protection Act. OSHA has seen a 74% increase in complaints in the past 10 years. However, over the same time period, it has seen a 34% reduction in claims under Sarbanes-Oxley. The New York region has seen the biggest decrease.

In general, Wigger reported that it now takes OSHA less than a year to investigate the average retaliation claim. However, she noted that claims under Sarbanes-Oxley usually are not the "average" claims and generally require more time. The New York region's resolution time is faster than the OSHA average: according to Wigger, usually under a year, or even six months, across all statutes.

The program was recorded and will be available to PLI members on its website.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
1 Oct 2019, Other, Washington, DC, United States

Orrick is proud to host the AIPN for its final breakfast meeting of 2019 for a session titled “Helping the World Gasify”. As natural gas production and use is very unevenly distributed throughout the world, often gas produced in association with crude oil is sold below cost or flared.

25 Nov 2019, Speaking Engagement, New York, United States

Lorraine McGowen will be speaking on the upcoming “Evaluating the Financial Health of an Entity” panel at the New York session of the Pocket MBA: Finance for Lawyers and Other Professionals program, hosted by the Practising Law Institute.

2 Dec 2019, Speaking Engagement, New York, United States

Evan Hollander will co-chair the Practising Law Institute’s annual Nuts and Bolts of Corporate Bankruptcy this year.

Similar Articles
Relevancy Powered by MondaqAI
Cleary Gottlieb Steen & Hamilton LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Cleary Gottlieb Steen & Hamilton LLP
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions