Standing and Snitches

Abstract

The rules of the SEC's whistleblower program, established in the Dodd-Frank Act and building on the Sarbanes-Oxley Act, purport to preempt state attorney-clientpriv- ilege laws. Though this preemption is controversial and generated outcry by the legal community upon its enactment, it has garnered remarkably little attention in the last ten years, and in twenty years, has not produced serious legal challenge. Why not? In this article, I argue that, because of the secrecy shrouding the SEC whistleblower pro- gram, establishing standing to challenge the SEC's purported preemption is prohibi- tively difficult, and I assess creative means through which litigants could establish standing for such a lawsuit.