Trends and Best Practices in Responding to Corporate Whistleblower Reports Explored!
In March 2013, the U.S. Court of Appeals, ruling in Wiest v. Lynch, determined that an employee who expresses 'reasonable belief' of an accounting irregularity is a whistleblower. In November 2014, the U.S. Securities and Exchange Commission (SEC) issued its Annual Report to Congress on the Dodd-Frank Whistleblower Program. There was a dramatic increase in whistleblowing cases in 2014. Also in 2014, the U.S. Justice Department garnered approximately $5.7 billion in civil settlements and judgments under the False Claims Act; predominantly in fraud against Medicare, Medicaid, and other government health care programs.
Today, the laws defining, protecting, and rewarding corporate whistleblowers have increased in breadth and number. The law also defines the type of conduct that triggers legal protection of whistleblowers against retaliation. The SEC will continue to monitor employment contracts for language that prohibits employees from reporting fraud and other wrongdoing to the government and, focus upon companies that harass, threaten, and terminate employees for whistleblowing. As such, the potential for whistleblowing corporate liability for claimed retaliation will increase in 2015.
Corporate compliance officers need to ensure that they can monitor and assess progress, timeliness, quality, and outcomes of their internal cases, ease and encourage early internal reporting, and monitor contracts to eliminate retaliation risk. Corporate policies should include robust anti-retaliation policies that address the growing range of activities considered to under whistleblowing law. Employers also must address the potential and serious risk of retaliation liability under laws such as the Sarbanes-Oxley Act, Dodd Frank Act, False Claims Act, and the Occupational Safety and Health Act; among others.
A panel of key thought leaders and practitioners assembled by The Knowledge Group will provide a discussion of the fundamentals and latest updates surrounding this topic. The panel of speakers will help you to avoid common pitfalls and risk and to develop Best Practices and Trends in Dealing with Corporate Whistleblowing Violations in 2015 and Beyond.
Key topics include:
- Whistleblowing Defined
- Investigating and Responding Corporate Whistleblowing
- Whistleblowing Provisions
- Anti-Retaliation Provision
- Reporting Whistleblowing
- Corporate Whistleblowing Risk
- Foreign Whistleblowers Rights
- Facing Corporate Whistleblowing Allegations
- Best Practices in Corporate Whistleblowing Violations
- Regulatory Developments
- Sanctions for Non-compliance
SEC Office of the Whistleblower
- Overview of the SEC Whistleblower Program and the Office of the Whistleblower;
- Statistics from the 2014 Annual Report on the Dodd-Frank Whistleblower Program;
- Overview of awards paid and factors in determining award amount;
- Internal compliance/audit/legal professionals can receive awards under certain conditions;
- How the rules foster internal reporting; and
- Retaliation and the use of restrictive language in confidentiality agreements
Latham & Watkins LLP
Hughes Hubbard & Reed LLP
Corporate representation perspective:
- Best practices for the design and implementation of corporate whistleblower programs (e.g., third-party vendor? Who in the company should receive the reports?)
- Dealing with local data privacy laws/rights or state secrets laws;
- Best practices for companies in evaluating and responding to whistleblower allegations;
- How to assure the whistleblower that her or his complaint is being appropriately addressed;
- Best practices for companies in cooperating with resulting SEC investigations; and
- Our thoughts on trends/predictions for 2015.
- Dodd-Frank whistleblower provisions are unprecedented expansion of civil statutory incentives to report fraud;
- Historically, primary tool of the government to promote reporting of fraud was False Claims Act–punishes fraud against government programs and in government contracting;
- FCA also has anti-retaliation provision; cut and dried;
- More worrisome from corporate perspective are the qui tam suits which are filed in secret; may not know for years if employee has contacted state or federal government;
- Recent years government has been more aggressive in seeking documents and testimony from company personnel before deciding whether to pursue case;
- First indication to the company may be civil investigative demand without knowing why it issued or whether prompted by a former or current employee;
- Government also continues to look at whether conduct gives rise to criminal liability;
- DOJ reported recovery of nearly $6 billion from FCA cases in fiscal year 2014; industries affected include financial services, health care, government contractors;
- Corporate concern is not just to set up robust system of compliance to evaluate and address claim, but also evaluate risk that current or former employee may be or already is working to develop claim against company.
Who Should Attend:
- Legal Lawyers
- White Collar Attorneys
- Corporate Attorneys
- In-House Counsel (Public & Private)
- General Counsel
- Corporate Counsel
- Senior Management
- HR Executives
- Members of Boards of Directors
- Other Related/Interested Professionals
Jane A. Norberg joined the SEC in January 2012 as Deputy Chief of the Office of the Whistleblower in the Division of Enforcement. In her capacity as Deputy Chief, Ms. Norberg helps administer the whistleblower program including working with whistleblowers and their counsel, reviewing and analyzing whistleblower applications for awards, and engaging in public outreach to educate potential whistleblowers and other interested parties about the program.
Prior to joining the SEC staff, Ms. Norberg was engaged in private law practice for 14 years, including at Shearman & Sterling LLP. Prior to her private law experience, Ms. Norberg served as a Special Agent for the United States Secret Service.
Jane A. Norberg joined the SEC in January 2012 as Deputy Chief of the Office of the Whistleblower in the …
Alicia Neubig is an Attorney at Latham & Watkins in the Washington, D.C. office. Her practice focuses on advising clients on compliance and enforcement matters involving U.S. international trade laws and regulations, including the Foreign Corrupt Practices Act. She has experience conducting domestic and international internal investigations and preparing voluntary disclosures and presentations to U.S. government agencies. Ms. Neubig assists clients in evaluating and strengthening anti-corruption compliance programs and whistleblower procedures. She also works with public international organizations on global initiatives to combat corruption, including preparing guidelines to assist businesses develop whistleblower programs.
Alicia Neubig is an Attorney at Latham & Watkins in the Washington, D.C. office. Her practice focuses on advising clients …
Michael Huneke is a Senior Attorney at Hughes Hubbard & Reed with significant experience conducting anti-corruption investigations and compliance program reviews and representing individuals accused of white-collar offenses. Mike has conducted numerous investigations, including in connection with whistleblower allegations and with U.S. Securities & Exchange Commission, U.S. Department of Justice, U.S. congressional, or World Bank and other multilateral development bank inquiries. Mike has assisted American, Asian, and European clients in designing, implementing, and maintaining anti-corruption policies and compliance programs, including the design and implementation of whistleblowing hotlines. Mike co-authored the treatise Anti-Corruption Law and Compliance: Guide to the FCPA and Beyond, published in July 2014 by Bloomberg/BNA. Prior to joining Hughes Hubbard, Mike clerked on the United States District Court for the Eastern District of Virginia.
Michael Huneke is a Senior Attorney at Hughes Hubbard & Reed with significant experience conducting anti-corruption investigations and compliance program …
Doreen Klein is senior counsel in McKool Smith’s New York office. Ms. Klein has extensive experience in False Claims Act Litigation, financial fraud cases, and white collar defense matters, including government and internal investigations involving allegations such as bribery and insurance, mail, and wire fraud, along with complex civil litigation related to such matters.
Ms. Klein previously spent 15 years with the New York County District Attorney's Office, where she served in the frauds, trial and appeals bureaus. During her time as a prosecutor, she investigated and prosecuted cases involving varied offenses, including securities fraud, fraudulent private placements, embezzlement, and insurance kickbacks
Doreen Klein is senior counsel in McKool Smith’s New York office. Ms. Klein has extensive experience in False Claims Act …
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SEC Office of the Whistleblower
About SEC Office of the Whistleblower
About Latham & Watkins LLP
Latham & Watkins LLP is a leading global law firm dedicated to working with clients to help them achieve their business goals and overcome legal challenges anywhere in the world. The firm has earned considerable market recognition based on a record of landmark matters and a unified culture of innovation and collaboration. From a global platform of offices covering the world’s major financial, business and regulatory centers, the firm’s lawyers help clients succeed. For more information, visit www.lw.com.
About Hughes Hubbard & Reed LLP
Hughes Hubbard & Reed LLP is an international law firm ranked for ten years, including five years in a row as the top-ranked New York-based firm, on The American Lawyer’s A-List of what the magazine calls “the top firms among the nation’s legal elite.” Our attorneys advise and represent clients in over 30 specialized practices from offices in New York, Washington, D.C., Paris, Los Angeles, Miami, Jersey City, Kansas City, and Tokyo. For more information, please visit www.hugheshubbard.com.
About McKool Smith
McKool Smith lawyers have significant experience representing whistleblowers in cases of fraud committed against government entities. Our practice includes former federal and state prosecutors, who have experience working on both sides of the courtroom. We work closely with federal, state, and local government lawyers in the prosecution of qui tam and other fraud cases involving government funds and programs, and have successfully tried False Claims Act cases to verdict. This array of experience gives our attorneys a unique handle to guide clients through complex False Claims Act provisions as well as SEC and IRS whistleblower legislation.
With more than 185 trial lawyers across offices in Austin, Dallas, Houston, Los Angeles, Marshall, New York, Silicon Valley, and Washington, DC, McKool Smith has established a reputation as one of America’s leading trial firms. Over the past seven years, the firm has secured nine nine-figure jury verdicts, as well as nine eight-figure jury verdicts. The firm has also won more VerdictSearch and The National Law Journal “Top 100 Verdicts” over the last seven years than any other law firm in the country. Courtroom successes like these have earned McKool Smith critical acclaim and helped the firm become what The Wall Street Journal describes as “one of the biggest law firm success stories of the past decade.” McKool Smith represents leading clients in complex commercial litigation, intellectual property, bankruptcy, and white collar defense matters.