Whistleblowers: Incentives, Disincentives, and Protection Strategies

Overview

Solid guidance for managing whistleblower policies in light of the new Dodd-Frank Act provisions

In July 2010, President Obama signed the Dodd-Frank Wall Street Reform and Consumer Protection Act that greatly expanded whistleblower bounties in connection with violations of federal securities laws, including the Foreign Corrupt Practices Act. Discussing business protection strategies and best practices in dealing with whistleblowers, Whistleblowers will appeal to board members, ...

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Whistleblowers: Incentives, Disincentives, and Protection Strategies

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Overview

Solid guidance for managing whistleblower policies in light of the new Dodd-Frank Act provisions

In July 2010, President Obama signed the Dodd-Frank Wall Street Reform and Consumer Protection Act that greatly expanded whistleblower bounties in connection with violations of federal securities laws, including the Foreign Corrupt Practices Act. Discussing business protection strategies and best practices in dealing with whistleblowers, Whistleblowers will appeal to board members, executives, corporate compliance personnel, attorneys for whistleblowers and defense attorneys, as well as potential employee whistleblowers.

  • Case studies of GlaxoSmithKline, Pfizer and other high profile whistleblower incidences
  • Examines new Dodd-Frank incentives to whistleblowers
  • Recommends best practices for corporations in light of new whistleblowing incentives
  • Explores other federal and state statutory incentives to whistleblowing

Timely and comprehensive, Whistleblowers emphasizes the disincentives to whistleblowing, reviewing the academic studies of whistleblowers with the idea of developing best practices in working with whistleblowers.

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Product Details

  • ISBN-13: 9781118094037
  • Publisher: Wiley
  • Publication date: 12/6/2011
  • Series: Wiley Corporate F&A Series , #575
  • Edition number: 1
  • Pages: 272
  • Sales rank: 1,123,207
  • Product dimensions: 6.20 (w) x 9.10 (h) x 1.10 (d)

Meet the Author

Frederick D. Lipman is a partner with the international law firm of Blank Rome LLP and is also the president of the Association of Audit Committee Members, Inc. He has more than fifty years of experience in the areas of corporate governance, mergers and acquisitions, private equity, and IPOs. He has appeared on CNBC, CNN, Bloomberg, and Chinese television as a national commentator on business topics and has been quoted in the Wall Street Journal, the New York Times, USA Today, Forbes, and other business publications.
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Table of Contents

Foreword

Acknowledgments

Introduction

Part I: The Whistleblowers and the Dodd-Frank Incentives

Chapter 1: The Dramatic Expansion of Whistleblower Awards under Dodd-Frank

Whistleblower Provisions of Dodd-Frank

What Is Original Information?

What are Violations of the Federal Securities Laws?

Rule 10b-5 - Market Manipulation

Violating the Accounting Standards

False Financial Statements by Public Companies

Other Securities Laws

Protections for Whistleblowers

Commodity Exchange Act

Notes

Chapter 2: The Remarkable Story of Cheryl Eckard and the $96 Million Bounty under the False Claims Act

Who is Cheryl Eckard?

Eckard's Post-Termination Activities

Eckard's Superiors

Background Allegations

The Alleged Violations

Timeline of Eckard's Alleged Activities

The Lessons of Glaxo

Notes

Chapter 3: The Pfizer Over $100 Million Bounty Collectors under the False Claims Act

John Kopchinski

BEXTRA

The Complaint

The Pfizer Lessons

Notes

Part II: Disincentives and Factors Motivating Public Disclosure

Chapter 4: Disincentives to Internal Whistleblowers

Financial Disincentives

Non-Financial Disincentives

Contractual Commitments and Fiduciary Duties

ERC Survey

Reinstatement as a Remedy

Empirical Study

Notes

Chapter 5: Women as Whistleblowers: Factors Motivating Public Whistleblowing

Sherron Watkins

Cynthia Cooper

Coleen Rowley

External Reporting by Internal Whistleblowers

Whistleblower Anonymity

Notes

Part III: Organizational Best Practices

Chapter 6: Why Should Organizations Adopt a Robust Whistleblower System?

Diminishment of Shareholder Wealth

Boards of Directors

We Were Duped!

Executive Whistleblowers

Why Independent Directors Cannot Rely Solely on Independent or Internal Auditors

Legal Standard

Caremark

Strategy

Criminal Liability of Organization

Responsible Corporate Officer Doctrine

The Acme Markets Case

The U.S. Department of Justice Criminal Guidelines

The Disadvantages of a Robust Whistleblower System

Notes

Chapter 7: Establishing a Robust Whistleblower System

Problems with the Current Whistleblower System

Initial Steps

Establishing a Robust Whistleblower Policy

Independent Directors Must Be in Charge

The Whistleblower Program Must Be Independently Administered

Whistleblower Complaints Should be Investigated by Independent Counsel Reporting Directly to the Independent Directors

There Should Be No Presumption That Anonymous Complaints Are Less Deserving Of Investigation

Motivations and Personality of the Whistleblower are not Relevant to the Truth of the Allegations

Protection of Whistleblower's Identity

Report the Status and Results of the Investigation

Meaningful Monetary Rewards Should Be Given to Internal Whistleblowers

What is a Meaningful Reward?

Communication of a Whistleblower Policy

Provide Milder Sanctions for Whistleblowers Involved in Illegal Group Activity

Independent Investigation of Retaliation Claims

The Director of Corporate Compliance Should Become the Eyes and Ears of the Independent Directors

Major Do's and Don'ts for CEOs

Notes

Part IV: Statutory Incentives and SEC Award Regulations

Chapter 8: The False Claims Act: Qui Tam Cases

What Is a False Claim?

False Claims Act Bounties

U.S. Department of Justice Memorandum

Statute of Limitations

Notes

Chapter 9: IRS Whistleblowers

Section 7623(b): Mandatory Whistleblower Awards

Reduction of Award Percentage

Section 7623(a): Discretionary Awards

Form 211

IRS Award Determinations

Award Administrative Proceedings

Appeal to Tax Court

IRS Whistleblowers Awards

Duration of Process and Award Payment

Confidentiality of Whistleblower

Right to Counsel

IRS Contracts

Disqualification of U.S. Treasury Department Federal Employees

Notes

Chapter 10: Other Statutory Incentives and Protections for Whistleblowers

False Patent Marking Statute

U.S. Tariff Act of 1930

State False Claims Statutes

Whistleblower Protections

Barker v. UBS

Other Statutory Whistleblower Protections

Notes

Chapter 11: A Step-By-Step Guide to SEC Whistleblowers Awards under Dodd-Frank

Summary

SEC Investor Protection Fund

Do You Need an Attorney?

Step-by-Step Guide

Determining Whether the Over $1 Million Threshold is Satisfied

Determining the Amount of an Award

Must an Employee Comply with the Company’s Internal Compliance Program?

Confidentiality

Non-Waiver of Whistleblower Rights

Appeals

Anti-Retaliation Provision

Notes

Appendix 1: IRS Form 211

Appendix 2: SEC Form TCR – Tip, Complaint or Referral

Appendix 3: SEC Form WB-APP – Application for Award for Original Information Submitted Pursuant to Section 21F of the Securities Exchange Act of 1934

Appendix 4: SEC Whistleblower Rules

About the Author

Index

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  • Posted October 14, 2011

    This is a must read!

    I agree with the following endorsements:

    "This unique book weaves the fascinating stories of individual whistleblowers with a call to make major improvements in the corporate compliance systems of all organizations. It is a must reading for executives and board members concerned about preventing future corporate scandals."
    -Howard L. Carver, public company audit committee member and retired partner Ernst & Young LLP

    "Federal and State governments have found that incentivizing integrity works, and they are embracing whistleblower programs to ferret out fraud. The good news, says Fred Lipman, is that corporate boards can implement their own whistleblower initiatives in order to get ahead of the curve. The trick, says Lipman, is for corporate boards to understand that they cannot obtain the information necessary to perform their fiduciary duties without creating incentives for internal whistleblowers."
    -Susan Strawn, President, Taxpayers Against Fraud

    "As a national employee hotline provider, I fully endorse the idea contained in this excellent book of providing rewards for legitimate employee whistleblowers whose information benefits their organization. I believe that Fred Lipman's recommendation will increase both the usage and effectiveness of employee hotlines."
    -Andy Bronstein, President, Lighthouse Services, Inc.

    "As with his prior writings, Mr. Lipman has created a thoughtful and comprehensive guide. Following the passing of the Dodd-Frank corporate governance reform bill, the whistle-blower issue has taken on significance prominence. This is why this book's subject has such relevance."
    -Professor Charles M. Elson, Woolard Chair in Corporate Governance and Director of Weinberg Center for Corporate Governance, University of Delaware

    Was this review helpful? Yes  No   Report this review
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