Whistleblowing – Is it worth it?

1. Who is the whistleblower?

An inspiring article appeared recently in The New Yorker. The title “Bounty Hunter” is not accidental. Author Patrick Radden Keefe presents the story of Jordan A. Thomas, who became famous as an advocate for whistleblowers.

A whistle-blower, also known as a unmasker, is a person who notifies about the occurrence of irregularities, unfair, immoral or illegal practices. The most common place of these irregularities is the whistleblower’s workplace – when he is employed in a given organization, although it is also possible for an external person to report it. By analogy with this distinction, the whistleblower, by making a notification, may direct his actions towards superiors within the organization or directly to any state bodies, and even the media. Internal whistle-blowers are much more likely to be retaliated against by their employers, which manifests itself in, among other things, increasing responsibilities, cutting hours or layoffs. The activities in question also include a bad name that the whistleblower will have to deal with. This may mean looking for a job in a different industry or even changing one’s place of residence. The need to protect whistleblowers underpinned the development of system solutions[1].

2. Protection of corporate fraud whistleblowers in the United States

The Securities and Exchange Commission (SEC) is an American state agency that supervises the activities of stock exchanges, securities brokers and dealers, as well as funds and investment advisers. The purpose of this supervision is to ensure fair trading, disclose relevant market information and prevent fraud [2]. To be able to do its job more efficiently, the SEC introduced its “Whistleblower Rewards Program” in 2011, which pays awards to individuals reporting violations of securities laws to the SEC. In line with the program, it allows whistle-blowers to be awarded between 10 and 30% of the fines imposed by the SEC and other agencies as a result of whistleblower information. By 2021, the SEC had recovered $ 4.8 billion in cash from the whistleblower program, and paid more than $ 1 billion to whistleblowers.

3. Whistleblower advocate

The question arises whether legal advice based on whistleblower support becomes a legal specialization and whether it has a chance to develop as a separate legal specialization. The example of a lawyer recently described in the media gives a positive answer. Jordan Thomas previously worked with the Securities and Exchange Commission where he helped develop this program. Then he started an apprenticeship at the law firm Labaton Sucharow, in which he began to achieve spectacular success with his clients who reported financial irregularities to the SEC. He represented, inter alia, a whistleblower from JP Morgan Chase & Co., or Frances Haugen from Facebook. In the Merrill Lynch case, the total prize money was $ 83 million. Also in Poland, there is a chance to submit such reports to the Securities and Exchange Commission, for example by employees of Polish branches of American corporations.

4. How does the SEC protect investors?

The SEC’s Office of Investor Education and Advocacy (OIEA) issues an Investor’s Bulletin to inform stakeholders of how the OIEA handles investor complaints and other ways that investors can resolve securities dispute. One must submit an investor complaint form to the OIEA to report problems with an investment, investment account or financial specialist. The Advice, Complaints, and Referrals portal provides information to the SEC about frauds or misdemeanors involving potential violations of federal securities laws [3]. The investor’s complaint form is completed online, the required fields must be completed. The types of securities that are complained about are listed under the investment heading “Tell Us About Your Investment”. They will be briefly characterized below:

1. “Prime bank” securities – securities of central banks – fraud related to the latter is a type of fraud consisting in offering potential investors the purchase and trade in financial instruments of central banks in secret foreign markets in order to achieve extensive profits (returns). These instruments as well as the markets are rigged. The vendors of these programs use counterfeit documents and, in addition, provide special access to programs. The alleged returns on the investment are to be up to 100% with little risk, which must raise the vigilance of potential investors. A warning sign is also excessive confidentiality when carrying out transactions, as well as assurances about the participation in the transaction of known organizations, such as the IMF or ICC [4].

2. ADR – American Depositary Receipt (ADR) – this is a security issued by American banks. Its essence is to simplify the process of acquiring foreign shares by investors. At the client’s request, or autonomously, the bank acquires shares on global markets, thanks to which it may admit certificates of ownership of these shares to trading. This solution ensures greater stability of investing, because ADR trading is simpler, while the price is similar to the price of the parent shares[5].

3. Bank issues (general).

4. Blank check offerings – offers under a blank check – companies in the development stage, when a specific business plan has not yet been drawn up, or the business plan is a merger or acquisition by another unidentified entity. These companies are referred to as speculative and are therefore required by the SEC to protect investors [6].

5. Blind pool offerings – blind pools – are investment tools characterized by slight restrictions in terms of the subject and conditions of investing. The use of this type of tools allows obtaining financing for the acquisition of private companies in order to make them public outside the traditional legal framework [7].

6. Certificates of deposit – certificates of deposit are securities issued by a bank in order to accumulate money. The certificate confirms that the bearer has deposited a given amount of funds on the account for a specified period of time – e.g. 6 months, after which the bank returns the amount with interest. The certificate is transferable, regardless of the amount deposited in the account [8].

7. Closed – end funds – is a type of investment fund that issues a specified number of shares under the initial public offering (IPO) in order to raise capital for investments. The shares are then traded on an exchange, with this being the only option to acquire the shares as no new shares are issued anymore. Closed-end funds are characterized by active management and concentration on one sector, industry [9].

8. Coins and precious metals (gold, silver, etc.) – Coins and precious metals – are considered to be an effective method of diversifying an investment portfolio, and also constitute a hedge against inflation. In addition to the ability to physically purchase gold, an investor may purchase financial instruments related to these metals, such as derivatives, or shares of mining companies or investment funds [10].

9. Collateralized mortgage obligations (CMOs) are a type of security that is, as the name suggests, secured by a mortgage. It consists of a pool of mortgages tied together and sold as an investment. The bundles are segregated by risk level and maturity, and the purchase price can vary greatly depending on market conditions [11].

10. Commodity Futures Contract – a commodity futures contract – is an agreement to buy or sell a specified amount of underlying commodities at a specified price on a specified date. Commodity futures can be used to hedge or protect a position in commodities as well as speculate [12].

11. Commodity index options – Stock index options –  investment tool that tracks the price and the return of a basket of commodities. It can be tradable or used just for reference purposes. It enables an investor to gain access to the commodity market without actually entering individual commodity futures. [13].

12. Convertible securities – A group of securities, usually preferred shares or bonds, that can be converted into other securities. As a rule, the investor – the holder of a given instrument – decides when to switch. The issue of this type of securities is associated with the search for funds, the most common source is the lack of access to conventional sources of financing [14].

13. Currency transaction – foreign currency transaction – transactions in foreign currencies refer to transactions denominated in a currency other than the local (national) currency of the country where the banking office is located[15].

14. Debt securities (general) – A debt security – is a financial instrument with defined conditions, which includes: a notional amount (amount borrowed), an interest rate, and maturity and renewal that can be traded. Unlike equity securities, debt securities require the borrower to repay the borrowed capital[16].

15. Derivatives (general) – Derivatives – are financial contracts concluded between two or more parties, the value of which is derived from an underlying asset, group of assets or benchmark. The derivative may be traded on an exchange or over-the-counter. Derivative prices are correlated with the value of the underlying assets. Common derivatives are futures, forwards, options and swaps [17].

16. Diamonds and other precious stones – Diamonds and other precious stones are an alternative to traditional types of investments. Investing in precious stones can bring you a quick profit, but is highly speculative and should only be undertaken by seasoned professionals. Investing in gemstones – especially rare or exceptional quality ones – will at least secure your funds and possibly increase the value of your investment[18].

17. Equity Security (general) – a security – is a document that confirms the existence of a specific property right in such a way that the possession of a document only allows you to exercise the rights arising from it, while the transfer of ownership of this document is tantamount to the transfer of the right[19].

18. Foreign Securities (no ADRs) – foreign securities that are not covered by US depository receipts.

19. Franchises and other business ventures. A franchise is a sales system where the owner licenses his business – complete with products, brand and expertise – in return for a franchise fee. A franchisor is a company that licenses franchisees [20].

20. Hedge funds – Hedge funds are actively managed investment pools that typically employ nontraditional and risky investment strategies or asset classes. Managers employ a wide range of strategies, often including borrowing and esoteric asset trading, to beat the average ROI for their clients. They are considered risky alternative investment options. Hedge funds charge significantly higher fees than traditional mutual funds and require high minimum deposits [21].

21. High-yield and “junk” bonds mutual funds – High-yield or junk bonds are corporate debt securities that bear higher interest rates because they have a lower credit rating than investment grade bonds. High yield bonds are more prone to default and therefore need to provide a higher rate of return than investment grade bonds to compensate investors for the risks incurred. High yielding debt issuers are typically start-ups or capital-intensive companies with high debt ratios [22].

22. Initial public offering (IPO) – Initial Public Offering refers to the process of offering shares to a private corporation publicly as part of a new share issue. An IPO enables a company to raise capital from public investors. Companies must meet the requirements of the stock exchanges and the Securities and Exchange Commission (SEC) in order to conduct an IPO. The transition from a private company to a public company can be an important time for private investors to fully realize the returns on their investment as this typically includes an issue premium for current private investors. At the same time, it also enables public investors to participate in the offer. An IPO can be viewed as an exit strategy for company founders and early adopters to realize the full return of their private investment [23].

23. Insurance contact Products (general) – Insurance related instruments are such whose values are driven by insurance loss events. Such instruments are linked to property losses due to natural catastrophes and represent a unique asset class, the return from which is uncorrelated with that of the general financial market.

24. Lower-rated and “junk” bonds – Junk bonds are a debt that has been assigned a low credit rating by a credit rating agency and is below the investment grade. They carry a higher risk of default than most bonds issued by corporations and governments. Due to the higher risk, investors are compensated with higher interest rates, which is why junk bonds are also called high yield bonds. In return for the purchase of bonds, the issuer undertakes to pay the investors interest together with the return of the invested capital. Junk bonds are bonds issued by companies that face financial difficulties and face a high risk of default or defaulting on interest or principal repayments to investors [24].

25. Money-Market funds – Money-market funds are a type of mutual fund that invests in high-quality short-term debt instruments, cash and cash equivalents. Money market funds are considered to be extremely low risk in the investment spectrum. Money market funds should be used as temporary placements as they are not suitable as long term investments[25].

26. Mortgage-backed securities – Mortgage-backed securities (MBS) is a bond-like instrument that consists of a package of housing loans purchased from the banks that issued them. Mortgage-backed securities place the bank as an intermediary between the property buyer and the investment industry. The bank handles the loans and then sells them at a discount to investors as a type of covered bond [26].

27. Multi-level marketing organizations (ponzi / pyramid) – Multi-level marketing is a business strategy used by some direct selling companies to sell products and services. Participants receive a percentage of the sales of their recruits. Members at all levels receive some form of commission which means the more tiers, the more money they can get. The FTC tests MLM programs to make sure they don’t act as pyramid schemes that are illegal [27].

28. Municipal bonds – Municipal bonds (or “Munis” for short) are debt securities issued by states, cities, counties and other government entities to finance current liabilities and finance equity projects such as building schools, highways or sewage systems. When you buy municipal bonds, you are actually lending money to the bond issuer in return for the promise of regular interest payments, usually every six months, and a return on your original investment or “equity”[28].

29. Mutual fund – an investment fund is a form of investment that consists in jointly investing funds paid in by fund participants. Participants can be both legal entities and individual entities – then the funds provide “small” investors with access to diversified, professionally managed portfolios [29].

30. Non-SEC registered offerings – Under federal securities laws, a company may not offer or sell securities unless the offer has been registered with the SEC or an exemption from registration is available. If an offer is not registered, it is often referred to as a private offer or an unregistered offer. Unregistered bids are not subject to certain laws and regulations designed to protect investors, such as the disclosure requirements that apply to registered bids [30].

31. Oil, gas, coal, ores – Oil, gas, coal and ores are an alternative to investments in stocks, bonds, deposits or the currency market. Energy resources occupy a leading position in trade in goods in the world, and crude oil and natural gas play a key role. Investments in commodities are relatively safe, however, most commodities on exchanges are bought and sold using futures and are therefore leveraged [31].

32. Options (except stock index) – An option is a derivative financial instrument that gives its holder the right to buy (in the case of a call option) or sell (in the case of a put option) a given good at a predetermined price. This right may be exercised on the option expiry date (European option) or on any day from the date of concluding the option contract up to and including the expiry date (American option), or on several specific dates (Bermuda option) [32].

33. Penny stocks – Penny stocks are small business stocks that are typically valued at less than $ 5 per share. Some penny stocks are traded on major exchanges such as the NYSE, while most penny stocks are traded through the OTC Bulletin Board (OTCBB)[33].

34. Promissory notes, loans, IOUs – bills of exchange, loans, debentures – A promissory note is a financial instrument that contains a written promise by one of the parties (the promissory note issuer) to pay the other party (the promissory note recipient) a specified sum of money, upon request or within a specified period within future. A loan is when money is transferred to another party in return for paying off the principal amount of the loan with interest. An IOU, on the other hand, is a written confirmation of a debt (promissory note) that one party owes the other. In business transactions, an IOU may be followed by a more formal written agreement. The informality of an IOU can make it difficult to enforce and also make it impossible to sell or trade[34].

35. Real estate (not securities) – Real estate that is acquired by investors in a material way, becoming the owner of a specific property.

36. Real estate investment trusts (REITs) – A real estate investment trust (REIT) is a type of investment fund that owns, operates or finances income generating real estate. REITs generate a steady stream of income for investors but offer little in terms of capital appreciation. Most REITs are listed on the stock exchange like stocks, which makes them very liquid as opposed to physical real estate investing[35].

37. Reg A or Reg D offerings – Regulation A is an exemption from SEC registration requirements that apply to public offerings of securities. It was updated in 2015 to allow companies to generate income at two separate levels representing two different types of investment. Under Tier 1 ($ 20 million maximum), companies do not have ongoing reporting requirements, but must issue a final bid status report. Under Tier 2 (up to $ 75 million), companies are required to prepare audited financial statements and submit continuous reports, including their final status. Regulation D allows companies with certain types of private placements to raise capital without having to register the securities with the SEC. The company or trader must file an information document on Form D with the SEC after selling the first securities[36].

38. Rights and warrants – Rights to shares are instruments issued by companies to ensure existing shareholders are able to retain some of their corporate property. One right is issued for each share, and each right can usually buy a fraction of the share, so multiple rights are required to buy one share. Warrants are long-term instruments that allow shareholders to buy additional shares at a discounted price, but they are usually issued at an exercise price higher than the current market price. In this way, warrants are assigned a waiting period of approximately six months to one year, which allows time to raise the share price sufficiently to exceed the strike price and provide intrinsic value[37].

39. Roll-ups – A roll-up merger occurs when an investor, such as a private equity firm, buys firms in the same market and brings them together. Roll-up mergers, also known as “roll-up” or “roll-up” mergers, unite many small businesses into a larger entity that is better equipped to benefit from economies of scale. Private equity firms use roll-up mergers to rationalize competition in crowded and / or fragmented markets and to combine firms with complementary capabilities into a one-stop shop, for example an oil exploration firm may be merged with a drilling and refinery company[38].

40. Section 529 plans – The 529 plan is a tax-exempt savings plan to help pay for education costs. Originally limited to the cost of post-secondary education, it was extended to K-12 education in 2017 and apprenticeship programs in 2019. The two main types of plans 529 are savings plans and prepaid tuition plans [39].

41. Small / micro cap issues – A small cap company is a public company with a total market value or market capitalization of between $ 300 and $ 2 billion. Micro cap is a publicly traded company with a share capital of approximately $ 50 million to $ 300 million. Small-cap investors typically look for promising new businesses that grow rapidly[40].

42. Stock index futures – Stock index futures, simply called index futures, are futures contracts based on a stock index. Futures contracts are contracts to buy or sell the value of an underlying asset at a specified price on a specified date. In this case, the underlying assets are linked to a stock index. However, index futures are not delivered on the expiry date. They are settled in cash on a daily basis which means investors and traders pay or charge the difference in value on a daily basis. Index futures can be used for several reasons, often by traders who speculate on the movement of an index or market or by investors looking to hedge against potential future losses. Index futures can be used as strong leading indicators of market sentiment[41].

43. Stock index options – An index option is a financial derivative instrument that gives the holder the right (but not the obligation) to buy or sell the value of an underlying index, for example the S&P 500 index, at a specified strike price. No real stocks are bought or sold. Often an index option uses an index futures as the underlying asset. Index options are always cash settled and are typically European style options meaning they only mature at maturity and do not include an early exercise reserve. Like all options, index options grant the buyer the right, but not the obligation, to take the long (if bought) or short (if sold) value of an index at a predetermined strike price [42].

44. U.S. government securities / agency issues – Government securities are public debt issues that are used to finance daily operations and special infrastructure and military projects. They guarantee the full repayment of the capital invested because they have the backing of the government that issued them. At maturity, the collateral is bought back, often investors receive periodic coupon or interest payments [43].

Agency securities is the term used to describe two types of bond: issued by a US government sponsored company (GSE) or another US federal government agency. Agency securities, also referred to as “agencies”, are issued by GSE, which includes the Federal National Mortgage Credit Association (FNMA), the Federal Mortgage Credit Bank, the Federal Mortgage Credit Corporation (FHLMC) and the Student Credit Marketing Association (SLMA) [44].

45. Unit investment trusts (UITs) – A unit investment trust (UIT) is a US financial firm that buys or holds a group of securities, such as stocks or bonds, and makes them available to investors as redeemable units. UITS are similar to open-ended and closed-end mutual funds in that they all consist of collective investments in which many investors pool their funds to be managed by a portfolio manager. Like open-ended mutual funds, UITs are bought and sold directly from the issuing company, although they can sometimes be purchased on the secondary market; similarly to closed-end funds, UITs are issued as part of an initial public offering (IPO) [45].

46. Variable Annuities – A variable annuity is a type of an annuity contract whose value is variable because it is based on the performance of an underlying portfolio of sub-accounts selected by the annuity owner. Sub accounts and mutual funds are identical in structure, but sub accounts do not have stock symbols that investors can easily use as fund tracking tools for research purposes. There is a division among pensions – variable pensions differ from permanent pensions, which ensure a specific and guaranteed return. Variable annuities offer the possibility of higher returns and higher income, however there is also the risk that the account will lose value [46].

This is a simplified list of financial instruments that may constitute the basis for filing a complaint with the SEC.

5. Polish thread [47]

One of the examples of the involvement of the US whistleblowing system in the Polish jurisdiction is a widely described case that can be found in the data of the SEC Commission. In the database of the Commission there is described the mechanism presenting a Spanish native, residing in Poland, former employee of the Warsaw branch of one of biggest US banks. He has been accused by the US Securities and Exchange Commission (SEC) of repeated activities related to insider dealing. Due to his position as a senior analyst in the Compliance division, the infringer had access to sensitive data – so that he could monitor the flow of classified information between “public” and “private” departments of the company, as well as prevent insider trading.

Between September 2020 and May 2021, he abused his position of “trust and confidence” in the bank by accessing and appropriating sensitive information on at least 45 mergers and acquisitions, tender offers, financing transactions and other significant corporate events involving clients or potential customers of the bank. Subsequently, the infringer illegally traded on the basis of this information, as a result of which he made at least $ 471,700 in illegal profits.

The defendant attempted to conceal his illegal trading activities by using four US brokerage accounts, each registered in the name of one of his parents, who appear in the case as the so-called Relief defendants.

It was the defendant’s responsibility to ensure that other bank employees maintained the confidentiality of material, non-public information. The infringer was also required to protect confidential information at another financial institution. Therefore, he was forbidden to trade on the basis of the data he obtained in the course of his work. The infringer’s employment contract with the bank contained relevant clauses that the defendant accepted.

In addition, bank personnel were required to adhere to the “Firmwide Policy Regarding the Safeguarding of Confidential Information and Information Barriers” as well as the “Personal Trading Policy”. The purpose of the above guidelines is to protect confidential information against disclosure or use. Moreover, one of the requirements was that employees were required to disclose brokerage accounts in which financial instruments could be bought, sold or held – regardless of whether they owned them or influenced business decisions.

Another of the infringer’s responsibilities was to update the bank’s “gray list”, which is a confidential list of public and private entities whose bank has material, non-public information. A gray list is maintained in the bank’s internal database (“Confidential Database”). A confidential database is a repository that stores non-public information about potential transactions involving the bank. It may contain data such as: names of public and private entities involved in the potential or pending transaction; the role of the company in the transaction; the nature of the transaction; securities involved; the type of financing involved; the size of the transaction; price information; the expected date of the announcement, as well as other material, non-public details of the potential transaction.

While working at the financial institution, the infringer had access to this information about transactions where the bank was involved (including but not limited to Transactions in question) via the Confidential Database, as well as other sources – e.g. e-mails. The Confidential Database access logs and other documents and information showed that the infringer had updated this data and therefore had direct access to this highly relevant, publicly unavailable information.

The infringer had applications installed on his mobile phone that allowed access to brokerage accounts. IP logs from brokerage accounts showed that the accounts were routinely accessed using different IP addresses that directly connect to the infringer . For example, many of the IP addresses used to access or trade through these brokerage accounts:

(a) indicate the geolocation in the territory of Poland where the infringer lived;

(b) used by the infringer to log into an investment bank using a remote work platform;

(c) was used by the infringer to log into an account on a US-based digital asset trading platform on his behalf.

The infringer’s scheme of operation can be illustrated by an example. According to the bank’s confidential database access logs, the infringer was granted access to the database at 09:40 EST on September 23, 2020 to enter information regarding a proposed bid for X Group to acquire one of the bank’s customers – Y. On the same day, September 23, 2020 at 3:37 PM ET, the infringer reached a sell-to-open (a / k / a write) limit of ten Y puts on a sell-to-open (a / k / a write) account, with an exercise price of $ 10 and expiration November 20, 2020, $ 1.70 per contract. The order was processed immediately. Y shares closed at $ 8.88 per share on that day. On October 1, 2020, X announced it will begin acquiring all Y outstanding shares for a cash purchase price of $ 13.75 per share, or approximately $ 647 million. The Y share price rose by approximately 45.21%, from $ 9.40 per share to $ 13.65 per share. During the period October 1 – October 2, 2020, the infringer sold all of its Y call options on brokerage account for over $ 30,940 in illegal profits.

The SEC has sued the court to freeze all of the infringer’s assets, as well as his parents’ assets in the US, including the illegal gains from insider trading.

“Despite the infringer’s alleged efforts to evade detection by limiting his transaction size and using four different accounts to trade under his parents’ names, SEC’s careful analysis combined this pattern of suspicious trading and exposed serious breaches of duty by an insider’s compliance officer,” for the protection of which he was hired. ” according to the head of the SEC’s market abuse division [48].

6. Protection of whistleblowers in Europe and Poland

In the EU Member States, Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons reporting[49] breaches of EU law, also known as the Directive on the protection of whistleblower rights, applies. The main task of the Whistleblower Directive is to ensure an adequate level of protection and anonymity. Whistleblowers can use three reporting channels: internal, external (separate public administration bodies) or public (for public information), with priority given to the internal channel. Its functioning should be ensured by the employer. The Directive provides a wide range of protection for freedom of expression for whistleblowers – both in the public and private sectors.

The directive prohibits retaliation against workers. These are direct or indirect acts or omissions in a work-related context that are caused by internal or external reporting or public disclosure and which cause or may cause undue harm to the whistleblower. It is all about protection against dismissal. Other forms of retaliation are threats and reprisals, such as: demotion, forced unpaid leave, salary reduction, penalties, reprimands, exclusion, discrimination and others. Protection is available not only to employees, but also to volunteers, members of social organizations and journalists. The Whistleblower Directive also requires the monitoring of the effectiveness of internal channels. For this purpose, records should be kept of each report received through the internal reporting channel – once every three years, the controlling bodies will audit the functioning of the internal reporting channel in a given unit. In the acts implementing the Whistleblower Protection Directive, the Member States are obliged to establish sanctions for violations reported by whistleblowers. They should be “effective, proportionate and dissuasive”.

A comprehensive regulation ensuring the protection of whistleblowers has not yet been established in the Polish legal system. In order to implement the EU directive on whistleblower protection, work is underway on a relevant act. In October last year, a draft act on the protection of persons reporting violations of the law of October 14, 2021 was published on the website of the Polish Government Legislation Center. The project is currently at the evaluation stage [50].

The Polish draft act assumes that, in Poland, the Ombudsman will be the central body responsible for receiving external applications related to whistleblowing events. Its task will be to perform initial verification of notifications and direct them to the competent authorities.

The Whistleblower Protection Directive sets out the scope of the infringements to which laws within the Member States must apply. There is a possibility of extending the scope of the infringements in question, which the Polish legislator will probably use, as in the draft act on the protection of persons who report infringements of the law, it provides a catalog that is wider than the directive.