Desiree Fixler on the Fight Over What “Voluntary” Means at the SEC

Desiree Fixler helped hand the SEC one of its biggest ESG enforcement wins ever — a $19 million penalty against Deutsche Bank’s asset-management arm, DWS Group. Her reward: zero dollars.

Desiree Fixler in Doe v. SEC

Kohn, Kohn and Colapinto was behind the first successful remand in SEC Dodd-Frank Act case Doe v. SEC. The U.S. Court of Appeals for D.C. Circuit reversed the SEC’s denial of a Section 36(a) exemption. This exemption permits the Commission to grant a whistleblower award even if the whistleblower did not meet the mandatory Commission regulatory requirements. The Court required the SEC to apply the proper “public interest” standard, which permits the SEC to grant awards if compensating the whistleblower is in the “public interest” and the “interest of investors.”

Overview the Fixler Case

In the Fixler v. SEC case, Ms. Fixler reported securities violations committed by Deutsche Bank her management. After she was fired, she disclosed the violations to the Wall Street Journal, which triggered a two-year investigation by the SEC.

She timely filed her claim with the SEC after her report to the Journal and the SEC fined Deutsche Bank $19 million based on Fixler’s disclosures. The Commission admitted that Fixler’s report to the Journal triggered its investigation and the sanction was based on Fixler’s two years of cooperation.

Despite this, the SEC denied paying Fixler an award based on its regulatory definition of “voluntary,” because the SEC staff learned about the violations from reading the Wall Street Journal article and asked Fixler to become a voluntary witness — which she agreed to be.

Under current SEC administrative precedent, a whistleblower who contacts the news media or Congress is not considered a “voluntary” whistleblower and can lose his or her Dodd-Frank Act whistleblower rights.

Fixler’s appeal is based on her position that the SEC’s regulatory definition of “voluntary” violates the plain meaning of that term. She is requesting the Court to order the Commission to define the term “voluntary” consistent with the SEC Enforcement Manual’s definition of “voluntary” and Webster’s dictionary definition of that term.

The case is pending in the U.S. Court of Appeals for the D.C. Circuit.

Desiree Fixler 8.5x11 Thumb

Fixler Goes to the Wall Street Journal

Desiree Fixler told her story to The Wall Street Journal in August 2021, alleging that Deutsche Bank’s DWS Group overstated how much of its $900 billion asset base was actually screened using ESG criteria.

Her disclosure triggered SEC and DOJ investigations that led to a $19 million fine against DWS in 2023 — but the SEC later denied her a whistleblower award, ruling her tip wasn’t “voluntary” because agency staff first learned of it through the Journal.

Read More Press