Sunday Read: Intern Article! SDNY Whistleblower Program
On January 10th, 2024, Damian Williams, the United States Attorney for the Southern District of New York (SDNY), announced that protecting whistleblowers was a top priority action for the new year.
Shortly after this announcement, on February 13, 2024, the Southern District of New York launched its first Whistleblower Pilot Program. There have been some criticisms concerning the practices outlined in the program, and whistleblower attorneys worry that the program will not appeal to potential whistleblowers.
In this Sunday Read, NWC explores the positive aspects of the SDNY Whistleblower Program and foreseeable issues with it. Taking a deeper look into the SDNY’s execution of the Whistleblower Program and comparing it to preexisting whistleblower laws gives us indication of how the Program will perform.
What is the SDNY Whistleblower Program?
Historically, the SDNY has successfully prosecuted many major fraud criminals and white-collar crimes. By enacting a program such as the Whistleblower Program, Williams noted that he wanted to catch these types of crime proactively. The Program was “designed to encourage early and voluntary self-disclosure of criminal conduct by individual participants in certain non-violent offenses.” Williams stated that the message he wants to make clear through the program is that individuals should “call us before we call you.”
Under the SDNY’s new Whistleblower program, there are six key requirements that a potential whistleblower must meet:
- Information disclosed by the whistleblower must not already be public knowledge or known by the SDNY and DOJ (Department of Justice).
- The whistleblower must voluntarily disclose information.
- Full cooperation with any investigation is required from the whistleblower.
- The whistleblower must disclose all information, including any illegal activities they may have participated in.
- Eligibility excludes individuals who are federal, state, or local elected or appointed and confirmed officials; officials or agents of federal investigative or law enforcement agencies; or chief executive officers, equivalent officers, or chief financial officers of public or private companies.
- The whistleblower must not have engaged in certain forms of criminal conduct.
A Committee Co-Chaired by the Deputy United States Attorney and the Chief of the Criminal Division evaluates claims made by individuals to determine if they meet the requirements. If an individual is deemed eligible to participate in the Program, they must enter a non-prosecution agreement.
Drawbacks of Program
Whistleblowers often risk their careers and personal safety to expose wrongdoing, yet without proper incentives, many may hesitate to step forward. NWC worries that the SDNY’s Whistleblower Pilot Program will be ineffective because it lacks certain measures, or best practices, that are crucial for whistleblowing laws. These include protecting whistleblower’s anonymity, offering financial rewards, and guaranteeing remedies for retaliation.
For one, the SDNY’s Whistleblower Pilot Program falls short of expectations due to its failure to compensate whistleblowers adequately. While the initiative aims to encourage individuals to come forward with vital information regarding securities violations, fraud, and corruption, its lack of compensation undermines its effectiveness.
Compensation not only acknowledges their bravery but also provides a practical incentive for individuals to take the considerable risk of exposing illicit activities. Without this crucial element, the program’s potential to uncover and address misconduct remains severely limited, ultimately hindering its ability to fulfill its intended purpose effectively.
Furthermore, the program fails to provide any legal protection for whistleblowers, leaving them vulnerable to retaliation and exposure. The lack of clear protocols for maintaining confidentiality could result in jeopardizing the safety and security of those who disclose wrongdoing. Without guarantees of anonymity, individuals may fear repercussions from the organizations they report against, hindering their willingness to come forward with sensitive information.
On a more positive note, the presence of a whistleblower program may encourage other districts to form a whistleblower program of their own. In addition, creating a whistleblower program garners more awareness for whistleblower issues and emphasizes the importance of reporting corruption in organizations.
How SDNY’s Whistleblower Program Compares
Many other whistleblower programs, such as those established under the Dodd-Frank Act, provide stronger protections for whistleblowers.
The Dodd-Frank Act not only encourages whistleblowers to come forward by offering financial rewards and compensation but also enhances their rights. It clarifies the right to a jury trial, prohibits the use of arbitration agreements, and expands the remedies available for violations of whistleblower protections. Additionally, the Dodd-Frank Act extends existing whistleblower laws to include more employees, such as those working for “nationally recognized statistical rating organizations.” These protections are notably more robust than those offered by the SDNY. Furthermore, the Dodd-Frank Act is more inclusive than the SDNY’s Whistleblower Pilot Program regarding eligibility for entering a Non-Prosecution Agreement (NPA) and becoming a whistleblower.
An Additional Message about SDNY’s Whistleblower Program:
Stephen Kohn, whistleblower attorney and Chairperson of NWC, advises potential whistleblowers to be cautious about the SDNY’s new program: “When possible, whistleblowers should file claims within established whistleblower programs that provide protection and compensation when a tip is investigated. It is advisable to seek confidential informant status for the whistleblower and, if necessary, negotiate a non-prosecution agreement.”
Recommendations for SDNY to consider implementing into the Whistleblower Program include:
1. Anonymous and Confidential Reporting Channels
2. Dedicated Whistleblower Office
3. Mandatory Awards of 10–30% of Proceeds Collected
4. Eligibility Requirements Modeled off the SEC Whistleblower Program
Resources For Whistleblowers
The decision to come forward is not one to be taken lightly, nor should selecting a whistleblower lawyer. NWC provides resources that can connect you with the right legal professional.
Support NWC
NWC fights to bolster whistleblower programs, inform the public and employees in all sectors about available laws and protections, and help connect them with the right legal representation. As a 501(c)(3) non-profit our awareness building work is made possible with the support of our generous donors. Please consider donating $100 today to help us continue to educate the public on how to find help when it is time for them to blow the whistle, and donors will receive a copy of Rules for Whistleblowers: A Handbook for Doing What’s Right, written by Stephen M. Kohn.
This article was researched and written by Lauryn Hinton, a student of Criminology, Law & Society at University of California, Irvine.
