Whistleblower attorneys from the law firm Kohn, Kohn & Colapinto (KKC) are urging the Department of Justice (DOJ) to model the whistleblower program it is developing on the hugely successful Dodd-Frank Act whistleblower programs administered by the Securities and Exchange Commission (SEC) and Commodity Futures Trading Commission (CFTC).
On March 7, Deputy Attorney General Lisa Monaco announced that the DOJ will be rolling out a whistleblower award program and is commencing a “90-day policy sprint” to determine what shape the program will take.
On March 22, KKC sent a letter to the DOJ detailing recommendations for the program based on their nearly 40 years of experience representing whistleblowers. Many of these recommendations were to copy key elements of the SEC and CFTC Whistleblower Programs.
For example, the KKC attorneys urge the DOJ to establish anonymous and confidential reporting channels for whistleblowers, something the agency was actually mandated to do under the Anti-Money Laundering Act of 2020.
“We believe that the statutory requirement implementing the anonymous and confidential filing requirements set forth in the AML law should be the starting point for the development of any DOJ whistleblower program, not only because it is required, but because the Dodd-Frank whistleblower programs have been remarkably successful in incentivizing high-quality reports,” the whistleblower lawyers wrote.
Likewise, they call on the DOJ to establish a whistleblower office modeled off those at the SEC and CFTC: “It is impossible to effectively process anonymous tips unless there is a whistleblower office dedicated to receiving such disclosures. An office can ensure that the DOJ complies with anonymity provisions in accepting disclosures and that tips are forwarded to the proper offices, and it can provide input on the eligibility of whistleblowers for awards.”
The attorneys also warned the DOJ that making whistleblowers who participated in the misconduct ineligible for awards would greatly undermine the program. They explained that all successful whistleblower award laws “recognize that participants in criminal activity are often the best source of information” and that “all of these laws allow participants to fully qualify for awards with well-designed guardrails that are embedded in the statutes.”
In their letter, the KKC attorneys also recommend call on the DOJ to align their program with the mandates set forth in the U.S. Strategy on Countering Corruption and to help change the agency’s culture around whistleblowing by recognizing National Whistleblower Day.
One of KKC’s founding partners, Stephen M. Kohn, recently authored a piece for Bloomberg Law where he warned that the DOJ was in danger of establishing an ineffective program which contained elements in conflict with key elements of a successful whistleblower program.
Kohn sees the DOJ’s implementation of an anonymous filing process as one of the seven most urgently needed whistleblower reforms. National Whistleblower Center (NWC), where Kohn serves as Chairman of the Board, has issued an Action Alert calling on the SEC to revise its rulemaking.
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Further Reading:
Whistleblower Attorneys Offer Detailed Recommendations for DOJ Whistleblower Award Program
DOJ Must Fix Flaws in Whistleblower Award Plan to Motivate Tips