Thursday, May 28, 2020

Draft State Whistleblower Legislation

The North American Securities Administrators Association just released proposed model whistleblower legislation.  At first glance, the legislation looks similar to the federal whistleblower bounty program enacted as a part of Dodd-Frank, only at the state level:

Among other provisions, the proposed model act provides a state’s securities regulator with the authority to make monetary awards to whistleblowers based on the amount of monetary sanctions collected in any related administrative or judicial action, up to 30 percent of the amount recovered. The model act also would protect whistleblower confidentiality, prohibit retaliation by an employer against a whistleblower, and create a cause of action and provide relief for whistleblowers retaliated against by their employer.

NASAA seeks comments by June 30, 2020.  Hopefully, they'll get plenty of insightful comments informed by studying the flaws with the SEC's bounty program. 

As Andrew Jennings pointed out to me, the language seems to track the federal language.  This may generate some of the the same difficulties for internal reporters.  At the federal level, whistleblowers who try to work within the organization to fix a problem do not receive the same protection from retaliation as those that go directly to the SEC. 

Although federal law may make it difficult for states to include an anti-arbitration provision for retaliation claims, states should probably also think about where any anti-retaliation claim will be heard.  It may be valuable to have state regulator insight into those hearings somehow, particularly if the main idea is to get information to state regulators.

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