On January 10, Damian Williams, the United States Attorney for the Southern District of New York (SDNY), announced the creation of a Whistleblower Pilot Program offering non-prosecution agreements to eligible whistleblowers.
“The program encourages early and voluntary self-disclosure of criminal conduct by individual participants in certain non-violent offenses,” the SDNY’s press release explains. “In exchange for self-disclosure and cooperation against others involved in the criminal conduct, SDNY will enter into a non-prosecution agreement where certain specified conditions are met, including, importantly, the condition that the Government was not previously aware of the criminal conduct that is the subject of the disclosure.”
Whistleblower advocates, however, warn that whistleblowers should use extreme caution in regards to the program because of the Department of Justice’s (DOJ) poor track record with whistleblowers. They also note that other agencies offer anonymity and rewards to whistleblowers.
“Outside of representing the United States in False Claims Act cases, the DOJ has no whistleblower office or program,” says whistleblower attorney Stephen M. Kohn of Kohn, Kohn & Colapinto. “In violation of federal law, DOJ has no program to accept confidential and anonymous whistleblower tips under the Anti-Money Laundering/Bank Secrecy Act whistleblower law. Worse still, the DOJ has indicted and aggressively prosecuted highly qualified whistleblowers, even whistleblowers who have been recognized by other federal agencies for their contributions in fighting corruption and crime.”
“Given this history, whistleblowers must be very cautious when approaching the DOJ,” Kohn continued. “Whistleblowers should consider filing claims under the anonymous and confidential whistleblower programs operated by the Securities and Exchange Commission (SEC), the Commodity Futures Trading Commission (CFTC) and FinCEN. Additionally, the Internal Revenue Service (IRS) whistleblower regulations offer strict confidentiality to whistleblowers. These offices have welcomed whistleblowers and offer financial incentives. Under all these programs whistleblowers who have participated in illegal conduct can still qualify for a reward.”
Kohn recently authored a piece where he laid out the seven most urgently needed reforms to U.S. whistleblower laws and policy. In that piece he called on the DOJ to, as required by law, institute procedures to accept anonymous and confidential whistleblower disclosures concerning violations of the Bank Secrecy Act.
In contrast to the DOJ, the other agencies listed by Kohn have robust anonymity and confidentiality provisions and offer monetary awards. For example, under the SEC Whistleblower Program, qualified whistleblowers are entitled to monetary awards of 10-30% of the funds collected by the government in the enforcement action connected to their disclosure.
“When possible, we urge whistleblowers to file claims within whistleblower programs that offer rewards and confidentiality,” Kohn added. “If a referral is needed to the DOJ, at that time it is advisable to seek confidential informant status for the whistleblower, and, if necessary, negotiate a non-prosecution agreement.”
“Our experience with DOJ has been mixed. Many DOJ agents and prosecutors understand whistleblowers and their importance. They do a great job in working closely with whistleblowers as valuable informants. But others do not. Until DOJ has an agency-wide whistleblower program that implements the laws and policies behind the numerous whistleblower laws, communications with the DOJ must proceed with caution.”
Further Reading:
U.S. Attorney Williams Announces Enforcement Priorities And SDNY Whistleblower Pilot Program
