What is the goal of the CFTC Whistleblower Program?
The goal of the Commodity Futures Trading Commission Whistleblower program is to incentivize integrity and bring law enforcement and regulatory attention on schemes that undermine America's commodities markets.
When was the CFTC Whistleblower Program created?
The Commodity Futures Trading Commission Whistleblower Program was created in 2010 by the Dodd-Frank Act in order to encourage those with non-public knowledge of Commodity Exchange Act violations to come forward and report those violations. The CFTC Whistleblower Program pays financial awards to those who properly report and provide information to the CFTC that result in actions that levy at least $1 million in monetary sanctions. The law governing the CFTC Whistleblower Program also prohibits retaliation by employers against employees who provide the CFTC with information about possible violations, or who assist the CFTC in investigations or proceeding based on such information.
How big are the awards under the CFTC Whistleblower Program ?
Whistleblowers that meet all of the program’s requirements are eligible for awards of 10 to 30 percent of the monetary sanctions collected in the covered actions reported.
Who can be a whistleblower?
Anyone who sends the Commodity Futures Trading Commission Form TCR containing information about a potential violation of the Commodity Exchange Act can be a whistleblower. A whistleblower can be a corporate officer or insider, a trader or market observer, an investor or a fraud victim. Whistleblowers do not need to be U.S. citizens.
Who is eligible for a whistleblower award?
To be eligible for an award under the CFTC Whistleblower Program, a whistleblower must be the first person to voluntarily provide the CFTC with original information about a Commodity Exchange Act violation. This original information cannot be information that is exclusively derived from an allegation made in a judicial or administrative hearing, a government report, hearing, audit, or investigation, or from the news media unless the whistleblower can prove that he or she is the original source of that information. Original whistleblower information may include your independent analysis, i.e., your examination and evaluation of information that may be publicly available, but which reveals new information that is not generally known. Certain persons – including certain government and self-regulatory personnel, and persons convicted of a crime related to the conduct at issue in the whistleblower matter – are ineligible for an award.
Does a whistleblower have to first report internally to his or her employer?
No. You do not have to report internally to be eligible for a CFTC whistleblower award, and you may submit your information directly to the Commodity Futures Trading Commission at any time. However, if you choose to report the fraud internally first, your information will be deemed to be submitted to the CFTC on the date you reported it internally to the company if you also report the fraud to the CFTC within 120 days of that date. Under these circumstances, the CFTC will consider your place in line for determining whether your information is "original information" to be the date you reported the potential violation internally. In addition, if the whisteblower's company conducts an investigation and reports the results to the Commodity Futures Trading Commission, the whistleblower will benefit from the information that the company’s investigation reveals to CFTCA and the CFTC may consider that factor when the deterimine a whistleblower award.
Can a whistleblower submit information to the CFTC anonymously?
Yes. Whistleblowers may file a "tip, complaint or referrmal form" (Form TCR) anonymously, but the Commodity Futures Trading Commission may need to contact them for more information. Because whistleblowers are required to cooperate with the CFTC while they investigate a matter, whistleblowers should provide some means of contact, such as an email address or telephone number or the name, email address and telephone number of a lawyer. The CFTC rules provide detailed information on filing requirements.
Will the CFTC keep a whistleblower's identity confidential?
The Commodity Futures Trading Commission says it is committed to protecting the identity of whistleblowers whether they apply anonymously or not. The CFTC will not disclose a whistleblower's identity in response to requests under the Freedom of Information Act and will generally treat information learned during the course of an investigation – including the identity of its sources – as non-public and confidential. However, if a matter proceeds to the level of administrative or court proceeding, the CFTC may be required to produce documents or other information which could reveal a whistleblower's identity. In adiiton, the Commodity Futures Trading Commission may also provide information, subject to confidentiality requirements, to other governmental or regulatory entities.
How can a whistleblower apply for an award?
Whistleblowers must complete a "whistleblower application for award form" (Form WB-APP) and mail or fax it to the address below:
Commodity Futures Trading Commission (CFTC)
1155 21st Street, NW
Washington, DC 20581
Fax: (202) 418-5975
No other form of submission will be accepted.
For covered Commodity Futures Trading Commission actions, you must file Form WB-APP no later than 90 days after the CFTC posts a "Notice of Covered Action." For related actions, you must file the form no later than 90 days after a judgment in the related action.
How will a whistleblower know when to apply for an award?
When the Commodity Futures Trading Commission obtains a final judgment that contains more than $1 million in monetary sanctions, they will post a "Notice of Covered Action" on their Whistleblower Notices page at www.cftc.gov. The CFTC does not notify individuals directly about Whistleblower Notices, so you or your lawyer should monitor the webpage. You can also sign up for an Email Subscription Service or RSS Feeds from the CFTC to receive all CFTC Whistleblower Notices automatically.
What factors does the CFTC consider in determining the amount of the award?
The CFTC's Whistleblower Rules require the agency to consider many factors in determining an award, with each award based on the unique facts and circumstances of the case.
The CFTC may increase an award percentage based on:
the significance of the information provided to the Commodity Futures Trading Commission, or the success of a CFTC action or related action;
the degree of assistance the whistleblower provided to the Commodity Futures Trading Commission;
the CFTC's law enforcement interest in deterring violations of the commodities laws by making awards to whistleblowers who provide information that leads to the successful enforcement of these laws; and/or
whether, and the extent to which, the whistleblower participated in and worked within the company's internal compliance system.
The CFTC may reduce the amount of an award based on:
whether the whistleblower was involved in, or culpable for, the conduct reported;
whether the whistleblower unreasonably delayed reporting a violation to the CFTC; and/or
whether the whistleblower interfered with the company's internal compliance and reporting systems.
Can a whistleblower appeal an award decision?
Yes. Whistleblowers can appeal any Final Order of the Commodity Futures Trading Commission regarding their award claim to an appropriate federal court of appeals no later than 30 days after the Final Order is issued.
What rights does a whistleblower have if his or her employer retaliates against them?
Employers may not discharge, demote, suspend, harass, or in any way discriminate against a whistleblower because of any lawful act they have done in providing information to the Commodity Futures Trading Commission, or assisting the CFTC in any investigation or proceeding based on the information submitted. If whistleblowers believe their employer has wrongfully retaliated against them, they may bring a private action in federal court against their employer, within two years of the employer’s retaliatory act. If they prevail, they may be entitled to reinstatement, back pay, litigation costs, expert witness fees, and attorney’s fees.