Making Whistleblowers Whole

Abstract

If ever there was a time in history in which whistleblowers have taken center stage, it has been the past eighteen months. From COVID-19 to Trump’s first impeachment trial, whistleblowers have played a vital role in bringing to light information otherwise impossible to obtain. While the value that whistleblowers bring to government, organizations, and society has always been immeasurable, it is still the case that whistleblowers ultimately suffer a disastrous fate. They have made the decision to speak out against wrongdoing, often risking their jobs, livelihoods, and ability to thrive in their respective industry due to harassment, demotion, exclusion, or termination. As a result, the emotional harm that they naturally suffer is significant. In some cases, it even leads to depression, suicide, and other devastating consequences. Yet one of the most prominent federal whistleblower programs today—the Securities and Exchange Commission’s whistleblower provisions under the Dodd-Frank Act—is an anomaly in numerous respects. It is one of the only federal whistleblower programs that fails to offer non-economic, emotional damages as a remedial provision. After examining personal accounts of whistleblower experiences, this Article will conduct a comparative analysis of the damages available under the SEC’s whistleblower program of the Dodd-Frank Act as compared to several other notable whistleblowing statutes, some of which are also within the domain of the investment markets. This Article will then propose a theoretical basis in support of emotional damages for whistleblowers by both incorporating deterrence theory under economic principles in tort law and undergoing a “rights vs. remedies” analysis that considers the substantive and procedural considerations of ensuring that whistleblowers, in their pursuit of justice against their retaliators, are truly made whole.

Keywords: whistleblowing, emotional damages, Dodd-Frank, remedies, rights