The U.S. Department of Justice is currently engaged in a “90-day policy sprint” to develop a whistleblower rewards program. During this sprint, the DOJ is connecting with whistleblower experts to understand the key features of successful whistleblower programs.
According to leading whistleblower attorney Stephen M. Kohn, the most important step the DOJ can take is to administer its whistleblower awards in a manner consistent with the United States’ other highly successful whistleblower award programs, such as the SEC Whistleblower Program.
According to Kohn, this means offering mandatory awards based on a percentage of the proceeds collected by the government thanks to the whistleblower. Under the Asset Forfeiture Fund (the statutory basis for the DOJ program), awards are purely discretionary.
Kohn outlined the reasoning behind this in a new letter sent to Deputy Attorney General Lisa Monaco.
“Conforming the management of the Fund to existing successful whistleblower laws is the single most important reform the Department can undertake to incentivize whistleblowers, deter frauds, and enhance accountability,” writes Kohn.
Kohn explains that discretionary award programs have consistently failed. He outlines how Congress has repeatedly recognized this and reformed whistleblower programs to offer mandatory awards. Most recently, Congress made awards mandatory under the AML Whistleblower Program when it passed the AML Whistleblower Improvement Act in 2022.
“The actions of Congress in passing the AML Whistleblower Improvement Act, combined with the empirical data demonstrating the effectiveness whistleblower award laws with a minimum payment of 10%, provides compelling support for the Department of Justice to follow these precedents when exercising its discretion to create a DOJ whistleblower program based on the Department’s authority to pay awards under the Asset Forfeiture Law,” Kohn writes.
Kohn previously sent another letter to the DOJ offering detailed recommendations for the program. These include developing anonymous and confidential reporting channels, establishing a dedicated Whistleblower Office, and extending eligibility to certain individuals engaged in the misconduct.
Further Reading:
Whistleblower Experts Call on DOJ to Follow Example of Dodd-Frank Programs