The Dodd-Frank Act created the first rewards programs for anonymous whistleblowers, covering both commodity and securities frauds. The SEC has jurisdiction over securities frauds, and the CFTC has jurisdiction over commodities frauds. Together, these two offices cover the publicly traded economy as well as fraud intended to take advantage of main street investors (such as Ponzi schemes).
Both U.S. citizens and non-U.S. citizens can report violations of the Foreign Corrupt Practices Act using a licensed whistleblower attorney.
Under the SEC’s reward program, which was established under the Dodd-Frank Act, FCPA whistleblowers can submit their cases confidentially to the SEC. However, whistleblowers must file the SEC’s Form TCR (“Tip, Complaint, or Referral”) in order to be eligible for an award.
Additionally, to be anonymous, whistleblowers must retain an attorney to file the Form TCR on their behalf.
By having an attorney sign the TCR form the CFTC can still ensure that the tip is reasonably believed to constitute a legal violation, without the need to know the identity of the whistleblower. This helps prevent fraudulent filings. It also allows the SEC to maintain a point-of-contact permitting the SEC to correspond with the whistleblower through his or her attorney. The whistleblower can then maintain their anonymity throughout the investigation.
For an FCPA violation that involves violations under the Commodities and Exchange Act, whistleblowers can submit their cases confidentially to the CFTC. This process is almost identical to a submission to the SEC, including the fact that in order to submit anonymously, whistleblowers must retain counsel to file the Form TCR on their behalf. Often, because FCPA fraud implicates both agencies, whistleblowers file with both the SEC and CFTC.
If the SEC or CFTC sanctions a culpable party for over $1 million dollars, the whistleblower is required to file a new form, known as the WB-APP form, in order to request a reward.
This application allows the whistleblower to make their case for why they deserve an award and what percentage of the sanction (between 10 and 30 percent) they should receive as an award. However, at the time a WB-APP form is filed, the SEC or CFTC can require that the identity of the whistleblower be disclosed to the agency, however, this information is still kept strictly confidential.