Securities Scholars’ Comment Letter on Draft Model Whistleblower Award and Protection Act

Abstract

In May 2020, the North American Securities Administrators Association (NASAA), an organization representing state and provincial securities regulators in Canada, the United States, and Mexico, released a draft Model Whistleblower Award and Protection Act (the Proposed Act) for public comment. The Proposed Act drew from securities-whistleblower statutes in Utah and Indiana, as well as the federal Sarbanes-Oxley and Dodd-Frank Acts. In brief, the Proposed Act provided for a state-level securities whistleblower-award program and an anti-retaliation private right of action.

NASAA received seven comment letters, including one from securities scholars. Our securities scholars’ letter highlighted two areas of concern. First, we noted that in Digital Realty Trust, Inc. v. Somers, 138 S. Ct. 767, 778 (2018), the Supreme Court held that the Dodd-Frank Act did not protect from employer retaliation those who blow the whistle only internally. Given that the Proposed Act’s text closely tracked Dodd-Frank’s anti-retaliation provision, we observed that it had the same problem seen in Digital Realty. We urged a revision to close this gap, a change that would give internal securities whistleblowers at least a state retaliation right of action. Second, we urged that the whistleblower-award provision allow for attorney-mediated anonymous reporting.

In late August 2020, NASAA released the final version of the act (the Final Act). The Final Act’s Section 10 resolved our Digital Realty concern by extending anti-retaliation protections to those who report only internally. The Final Act’s Section 4 addressed our concern that whistleblowers who submit anonymous reports pre-award should remain eligible for whistleblower awards. A copy of our comment letter follows this introductory note. The Proposed Act is attached as Exhibit A and the Final Act as Exhibit B.

Keywords: securities regulation, whistleblowing, whistleblower, Dodd-Frank, Sarbanes-Oxley, white-collar crime