Whistleblower’s Lawyer Calls for End to NDAs that Restrict Rights of Whistleblowers to Report Crimes to Law Enforcement
November 21, 2018. Washington, D.C. In testimony given today in Brussels, Belgium before the European Parliament’s Special Committee on Financial Crimes, Tax Evasion and Tax Avoidance Danske, Bank whistleblower Howard Wilkinson testified concerning the contents of the nondisclosure agreement (NDA) he was required to sign as a condition of obtaining severance pay at the Danske Bank.
For the first time the contents of the NDA were released to the public. The NDA required that Wilkinson keep secret all banking information he learned while at Danske, which would include his concerns about illegal money laundering.
AGREEMENT ON TERMINATION OF EMPLOYMENT CONTRACT
28 April 2014
Para. 5:
“The Employee indefinitely undertakes to keep the Employer’s banking, business and production secrets in confidentiality in the extent necessary for the protection of the Employer’s reasonable and legal interests (hereinafter “confidentiality obligation”). Employer’s business and production secrets means the business related information belonging to the Employer, the disclosure of which to third persons might significantly harm the Employer’s justifiable business interests, as well as information that is not publicly available or readily obtainable from outside sources, that is not subject to disclosure in accordance with the valid laws and that is disclosed to third persons only in confidentiality.
This includes but is not limited to “Business Secrets” and “Banking Secrecy” as defined in the Employment Contract, as well as any information pertaining to the ways Danske Bank is conducting its business in the Baltics. The confidentiality obligation also applies with regard to such information related to any company belonging to the same group with the Employer or any of their clients or business partners.”
Para. 9:
“[T]he Employee and the Employer therefore agree to be loyal against one another and act in each other’s reasonable interests. In particular, the Employee and the Employer agree not to reveal to any third party this agreement.”
Wilkinson’s whistleblower attorney Stephen M. Kohn, stated: “Highly restrictive NDAs are common in Europe. They gag whistleblowers allowing fraud to go unchecked. They must be outlawed. Financial regulators in Europe should follow the precedent of the U.S. Securities and Exchange Commission (SEC) and outlaw any agreement that restricts whistleblowing to law enforcement.”
“Danske Bank’s description of the NDA has not been accurate. It was a complete gag on the whistleblower. These types of agreements have a severe chilling effect on employees. They are used to cover-up wrongdoing,” Kohn added.
Mr. Kohn’s whistleblower law firm, Kohn, Kohn & Colapinto, represented the KBR employee who challenged similar NDAs under the U.S. Wall Street reform law, the Dodd-Frank Act. The firm won this landmark case of In re KBR, and on April 1, 2015 the SEC outlawed such agreements in the United States and fined KBR $130,000 based on the NDA. See SEC Order, In re KBR.
“The Danske Bank money laundering case demonstrates the immediate need for Europe to outlaw restrictive NDA agreements that prevent whistleblowers from alerting law enforcement of possible violations of law. The European Parliament should use the U.S. SEC’s decision as guidance to adopt a ban on such NDAs within the EU,” Kohn added.
The PowerPoint presented by Mr. Wilkinson during is testimony is linked here: Money Laundering in the EU Banking Sector: what is failing?