The SEC Whistleblower Program Rules, Part 240, SECURITIES EXCHANGE ACT OF 1934

PART 240—GENERAL RULES AND REGULATIONS, SECURITIES EXCHANGE ACT OF 1934
■ 1. The authority citation for part 240 is amended by adding the following citation in numerical order to read as follows:
Authority: 15 U.S.C. 77c, 77d, 77g, 77j, 77s, 77z-2, 77z-3, 77eee, 77ggg, 77nnn, 77sss, 77ttt, 78c, 78d, 78e, 78f, 78g, 78-i, 78j, 78j-1, 78k, 78k-1, 78l, 78m, 78n, 78n-1, 78o, 78o-4, 78p, 78q, 78s, 78u-5, 78w, 78x, 78ll, 78mm, 80a-20, 80a-23, 80a-29, 80a-37, 80b-3, 80b-4, 80b-11, and 7201 et seq.; 18 U.S.C. 1350; and 12 U.S.C. 5221(e)(3), unless otherwise noted.

■ 2. Add an undesignated center heading and §§ 240.21F–1 through § 240.21F–17 to read as follows:
Securities Whistleblower Incentives and Protections
Sec.
240.21F–1 General.
240.21F–2 Whistleblower status and
retaliation protections. 240.21F–3 Payment of award. 240.21F–4 Other definitions. 240.21F–5 Amount of award. 240.21F–6 Criteria for determining amount
of award.
240.21F–7 Confidentiality of submissions.
240.21F–8 Eligibility.
240.21F–9 Procedures for submitting
original information. 240.21F–10 Procedures for making a claim
for a whistleblower award in SEC actions
that result in monetary sanctions in
excess of $1,000,000 240.21F–11 Procedures for determining
awards based upon a related action. 240.21F–12 Materials that may be used as
the basis for an award determination and
that may comprise the record on appeal. 240.21F–13 Appeals. 240.21F–14 Procedures applicable to the
payment of awards. 240.21F–15 No amnesty. 240.21F–16 Awards to whistleblowers who
engage in culpable conduct. 240.21F–17 Staff communications with
individuals reporting possible securities
law violations.
* * * * *
§ 240.21F–1 General.
Section 21F of the Securities Exchange Act of 1934 (‘‘Exchange Act’’) (15 U.S.C. 78u-6), entitled ‘‘Securities Whistleblower Incentives and Protection,’’ requires the Securities and Exchange Commission (‘‘Commission’’) to pay awards, subject to certain limitations and conditions, to whistleblowers who provide the Commission with original information about violations of the Federal securities laws. These rules describe the whistleblower program that the Commission has established to implement the provisions of Section 21F, and explain the procedures you will need to follow in order to be eligible for an award. You should read these procedures carefully because the failure to take certain required steps within the time frames described in these rules may disqualify you from receiving an award for which you otherwise may be eligible. Unless expressly provided for in these rules, no person is authorized to make any offer or promise, or otherwise to bind the Commission with respect to the payment of any award or the amount thereof. The Securities and Exchange Commission’s Office of the Whistleblower administers our whistleblower program. Questions about the program or these rules should be directed to the SEC Office of the Whistleblower, 100 F Street, NE., Washington, DC 20549–5631.

§ 240.21F–2 Whistleblower status and retaliation protection.
(a) Definition of a whistleblower. (1) You are a whistleblower if, alone or jointly with others, you provide the Commission with information pursuant to the procedures set forth in § 240.21F– 9(a) of this chapter, and the information relates to a possible violation of the Federal securities laws (including any rules or regulations thereunder) that has occurred, is ongoing, or is about to occur. A whistleblower must be an individual. A company or another entity is not eligible to be a whistleblower.
(2)
To be eligible for an award, you must submit original information to the Commission in accordance with the procedures and conditions described in §§ 240.21F–4, 240.21F–8, and 240.21F– 9 of this chapter.
(b)
Prohibition against retaliation: (1) For purposes of the anti-retaliation protections afforded by Section 21F(h)(1) of the Exchange Act (15 U.S.C. 78u-6(h)(1)), you are a whistleblower if:
(i)
You possess a reasonable belief that the information you are providing relates to a possible securities law violation (or, where applicable, to a possible violation of the provisions set forth in 18 U.S.C. 1514A(a)) that has occurred, is ongoing, or is about to occur, and;
(ii)
You provide that information in a manner described in Section 21F(h)(1)(A) of the Exchange Act (15
U.S.C. 78u-6(h)(1)(A)).
(iii) The anti-retaliation protections apply whether or not you satisfy the requirements, procedures and conditions to qualify for an award.
(2) Section 21F(h)(1) of the Exchange Act (15 U.S.C. 78u-6(h)(1)), including any rules promulgated thereunder, shall be enforceable in an action or proceeding brought by the Commission.

§ 240.21F–3 Payment of awards.
(a)
Commission actions: Subject to the eligibility requirements described in §§ 240.21F–2, 240.21F–8, and 240.21F– 16 of this chapter, the Commission will pay an award or awards to one or more whistleblowers who:
(1)
Voluntarily provide the Commission
(2) With original information
(3)
That leads to the successful enforcement by the Commission of a Federal court or administrative action
(4)
In which the Commission obtains monetary sanctions totaling more than $1,000,000.
Note to paragraph (a): The terms voluntarily, original information, leads to successful enforcement, action, and monetary sanctions are defined in § 240.21F– 4 of this chapter.
(b)
Related actions: The Commission will also pay an award based on amounts collected in certain related actions.
(1)
A related action is a judicial or administrative action that is brought by:
(i)
The Attorney General of the United States;
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(ii)
An appropriate regulatory authority;
(iii) A self-regulatory organization; or
(iv)
A state attorney general in a criminal case, and is based on the same original information that the whistleblower voluntarily provided to the Commission, and that led the Commission to obtain monetary sanctions totaling more than $1,000,000.
Note to paragraph (b)(1): The terms appropriate regulatory authority and self-regulatory organization are defined in § 240.21F–4 of this chapter.
(2)
In order for the Commission to make an award in connection with a related action, the Commission must determine that the same original information that the whistleblower gave to the Commission also led to the successful enforcement of the related action under the same criteria described in these rules for awards made in connection with Commission actions. The Commission may seek assistance and confirmation from the authority bringing the related action in making this determination. The Commission will deny an award in connection with the related action if:
(i)
The Commission determines that the criteria for an award are not satisfied; or
(ii)
The Commission is unable to make a determination because the Office of the Whistleblower could not obtain sufficient and reliable information that could be used as the basis for an award determination pursuant to § 240.21F– 12(a) of this chapter. Additional procedures apply to the payment of awards in related actions. These procedures are described in §§ 240.21F– 11 and 240.21F–14 of this chapter.
(3)
The Commission will not make an award to you for a related action if you have already been granted an award by the Commodity Futures Trading Commission (‘‘CFTC’’) for that same action pursuant to its whistleblower award program under Section 23 of the Commodity Exchange Act (7 U.S.C. 26). Similarly, if the CFTC has previously denied an award to you in a related action, you will be precluded from relitigating any issues before the Commission that the CFTC resolved against you as part of the award denial.

§ 240.21F–4 Other definitions.
(a) Voluntary submission of information. (1) Your submission of information is made voluntarily within the meaning of §§ 240.21F–1 through 240.21F–17 of this chapter if you provide your submission before a request, inquiry, or demand that relates to the subject matter of your submission is directed to you or anyone representing you (such as an attorney):
(i) By the Commission;
(ii) In connection with an investigation, inspection, or examination by the Public Company Accounting Oversight Board, or any self-regulatory organization; or
(iii) In connection with an investigation by Congress, any other authority of the Federal government, or a state Attorney General or securities regulatory authority.
(2)
If the Commission or any of these other authorities direct a request, inquiry, or demand as described in paragraph (a)(1) of this section to you or your representative first, your submission will not be considered voluntary, and you will not be eligible for an award, even if your response is not compelled by subpoena or other applicable law. However, your submission of information to the Commission will be considered voluntary if you voluntarily provided the same information to one of the other authorities identified above prior to receiving a request, inquiry, or demand from the Commission.
(3)
In addition, your submission will not be considered voluntary if you are required to report your original information to the Commission as a result of a pre-existing legal duty, a contractual duty that is owed to the Commission or to one of the other authorities set forth in paragraph (a)(1) of this section, or a duty that arises out of a judicial or administrative order.
(b)
Original information. (1) In order for your whistleblower submission to be considered original information, it must be:
(i)
Derived from your independent knowledge or independent analysis;
(ii)
Not already known to the Commission from any other source, unless you are the original source of the information;
(iii) Not exclusively derived from an allegation made in a judicial or administrative hearing, in a governmental report, hearing, audit, or investigation, or from the news media, unless you are a source of the information; and
(iv)
Provided to the Commission for the first time after July 21, 2010 (the date of enactment of the Dodd-Frank Wall Street Reform and Consumer Protection Act).
(2)
Independent knowledge means factual information in your possession that is not derived from publicly available sources. You may gain independent knowledge from your experiences, communications and
observations in your business or social interactions.
(3)
Independent analysis means your own analysis, whether done alone or in combination with others. Analysis means your examination and evaluation of information that may be publicly available, but which reveals information that is not generally known or available to the public.
(4)
The Commission will not consider information to be derived from your independent knowledge or independent analysis in any of the following circumstances:
(i)
If you obtained the information through a communication that was subject to the attorney-client privilege, unless disclosure of that information would otherwise be permitted by an attorney pursuant to § 205.3(d)(2) of this chapter, the applicable state attorney conduct rules, or otherwise;
(ii)
If you obtained the information in connection with the legal representation of a client on whose behalf you or your employer or firm are providing services, and you seek to use the information to make a whistleblower submission for your own benefit, unless disclosure would otherwise be permitted by an attorney pursuant to § 205.3(d)(2) of this chapter, the applicable state attorney conduct rules, or otherwise; or
(iii) In circumstances not covered by paragraphs (b)(4)(i) or (b)(4)(ii) of this section, if you obtained the information because you were:
(A)
An officer, director, trustee, or partner of an entity and another person informed you of allegations of misconduct, or you learned the information in connection with the entity’s processes for identifying, reporting, and addressing possible violations of law;
(B)
An employee whose principal duties involve compliance or internal audit responsibilities, or you were employed by or otherwise associated with a firm retained to perform compliance or internal audit functions for an entity;
(C)
Employed by or otherwise associated with a firm retained to conduct an inquiry or investigation into possible violations of law; or
(D)
An employee of, or other person associated with, a public accounting firm, if you obtained the information through the performance of an engagement required of an independent public accountant under the Federal securities laws (other than an audit subject to § 240.21F–8(c)(4) of this chapter), and that information related to a violation by the engagement client or the client’s directors, officers or other employees.
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(iv)
If you obtained the information by a means or in a manner that is determined by a United States court to violate applicable Federal or state criminal law; or
(v)
Exceptions. Paragraph (b)(4)(iii) of this section shall not apply if:
(A)
You have a reasonable basis to believe that disclosure of the information to the Commission is necessary to prevent the relevant entity from engaging in conduct that is likely to cause substantial injury to the financial interest or property of the entity or investors;
(B)
You have a reasonable basis to believe that the relevant entity is engaging in conduct that will impede an investigation of the misconduct; or
(C)
At least 120 days have elapsed since you provided the information to the relevant entity’s audit committee, chief legal officer, chief compliance officer (or their equivalents), or your supervisor, or since you received the information, if you received it under circumstances indicating that the entity’s audit committee, chief legal officer, chief compliance officer (or their equivalents), or your supervisor was already aware of the information.
(vi)
If you obtained the information from a person who is subject to this section, unless the information is not excluded from that person’s use pursuant to this section, or you are providing the Commission with information about possible violations involving that person.
(5)
The Commission will consider you to be an original source of the same information that we obtain from another source if the information satisfies the definition of original information and the other source obtained the information from you or your representative. In order to be considered an original source of information that the Commission receives from Congress, any other authority of the Federal government, a state Attorney General or securities regulatory authority, any self-regulatory organization, or the Public Company Accounting Oversight Board, you must have voluntarily given such authorities the information within the meaning of these rules. You must establish your status as the original source of information to the Commission’s satisfaction. In determining whether you are the original source of information, the Commission may seek assistance and confirmation from one of the other authorities described above, or from another entity (including your employer), in the event that you claim to be the original source of information
that an authority or another entity provided to the Commission.
(6)
If the Commission already knows some information about a matter from other sources at the time you make your submission, and you are not an original source of that information under paragraph (b)(5) of this section, the Commission will consider you an original source of any information you provide that is derived from your independent knowledge or analysis and that materially adds to the information that the Commission already possesses.
(7)
If you provide information to the Congress, any other authority of the Federal government, a state Attorney General or securities regulatory authority, any self-regulatory organization, or the Public Company Accounting Oversight Board, or to an entity’s internal whistleblower, legal, or compliance procedures for reporting allegations of possible violations of law, and you, within 120 days, submit the same information to the Commission pursuant to § 240.21F–9 of this chapter, as you must do in order for you to be eligible to be considered for an award, then, for purposes of evaluating your claim to an award under §§ 240.21F–10 and 240.21F–11 of this chapter, the Commission will consider that you provided information as of the date of your original disclosure, report or submission to one of these other authorities or persons. You must establish the effective date of any prior disclosure, report, or submission, to the Commission’s satisfaction. The Commission may seek assistance and confirmation from the other authority or person in making this determination.
(c)
Information that leads to successful enforcement. The Commission will consider that you provided original information that led to the successful enforcement of a judicial or administrative action in any of the following circumstances:
(1)
You gave the Commission original information that was sufficiently specific, credible, and timely to cause the staff to commence an examination, open an investigation, reopen an investigation that the Commission had closed, or to inquire concerning different conduct as part of a current examination or investigation, and the Commission brought a successful judicial or administrative action based in whole or in part on conduct that was the subject of your original information; or
(2)
You gave the Commission original information about conduct that was already under examination or investigation by the Commission, the Congress, any other authority of the
Federal government, a state Attorney General or securities regulatory authority, any self-regulatory organization, or the PCAOB (except in cases where you were an original source of this information as defined in paragraph (b)(4) of this section), and your submission significantly contributed to the success of the action.
(3)
You reported original information through an entity’s internal whistleblower, legal, or compliance procedures for reporting allegations of possible violations of law before or at the same time you reported them to the Commission; the entity later provided your information to the Commission, or provided results of an audit or investigation initiated in whole or in part in response to information you reported to the entity; and the information the entity provided to the Commission satisfies either paragraph (c)(1) or (c)(2) of this section. Under this paragraph (c)(3), you must also submit the same information to the Commission in accordance with the procedures set forth in § 240.21F–9 within 120 days of providing it to the entity.
(d)
An action generally means a single captioned judicial or administrative proceeding brought by the Commission. Notwithstanding the foregoing:
(1)
For purposes of making an award under § 240.21F–10 of this chapter, the Commission will treat as a Commission action two or more administrative or judicial proceedings brought by the Commission if these proceedings arise out of the same nucleus of operative facts; or
(2)
For purposes of determining the payment on an award under § 240.21F– 14 of this chapter, the Commission will deem as part of the Commission action upon which the award was based any subsequent Commission proceeding that, individually, results in a monetary sanction of $1,000,000 or less, and that arises out of the same nucleus of operative facts.
(e)
Monetary sanctions means any money, including penalties, disgorgement, and interest, ordered to be paid and any money deposited into a disgorgement fund or other fund pursuant to Section 308(b) of the Sarbanes-Oxley Act of 2002 (15 U.S.C. 7246(b)) as a result of a Commission action or a related action.
(f)
Appropriate regulatory agency means the Commission, the Comptroller of the Currency, the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation, the Office of Thrift Supervision, and any other agencies that may be defined as appropriate regulatory agencies under
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Section 3(a)(34) of the Exchange Act (15
U.S.C. 78c(a)(34)).
(g)
Appropriate regulatory authority means an appropriate regulatory agency other than the Commission.
(h)
Self-regulatory organization means any national securities exchange, registered securities association, registered clearing agency, the Municipal Securities Rulemaking Board, and any other organizations that may be defined as self-regulatory organizations under Section 3(a)(26) of the Exchange Act (15 U.S.C. 78c(a)(26)).
§ 240.21F–5 Amount of award.
(a)
The determination of the amount of an award is in the discretion of the Commission.
(b)
If all of the conditions are met for a whistleblower award in connection with a Commission action or a related action, the Commission will then decide the percentage amount of the award applying the criteria set forth in § 240.21F–6 of this chapter and pursuant to the procedures set forth in §§ 240.21F–10 and 240.21F–11 of this chapter. The amount will be at least 10 percent and no more than 30 percent of the monetary sanctions that the Commission and the other authorities are able to collect. The percentage awarded in connection with a Commission action may differ from the percentage awarded in connection with a related action.
(c)
If the Commission makes awards to more than one whistleblower in connection with the same action or related action, the Commission will determine an individual percentage award for each whistleblower, but in no event will the total amount awarded to all whistleblowers in the aggregate be less than 10 percent or greater than 30 percent of the amount the Commission or the other authorities collect.
§ 240.21F–6 Criteria for determining amount of award.
In exercising its discretion to determine the appropriate award percentage, the Commission may consider the following factors in relation to the unique facts and circumstances of each case, and may increase or decrease the award percentage based on its analysis of these factors. In the event that awards are determined for multiple whistleblowers in connection an action, these factors will be used to determine the relative allocation of awards among the whistleblowers.
(a) Factors that may increase the amount of a whistleblower’s award. In determining whether to increase the amount of an award, the Commission will consider the following factors, which are not listed in order of importance.
(1)
Significance of the information provided by the whistleblower. The Commission will assess the significance of the information provided by a whistleblower to the success of the Commission action or related action. In considering this factor, the Commission may take into account, among other things:
(i)
The nature of the information provided by the whistleblower and how it related to the successful enforcement action, including whether the reliability and completeness of the information provided to the Commission by the whistleblower resulted in the conservation of Commission resources;
(ii)
The degree to which the information provided by the whistleblower supported one or more successful claims brought in the Commission or related action.
(2)
Assistance provided by the whistleblower. The Commission will assess the degree of assistance provided by the whistleblower and any legal representative of the whistleblower in the Commission action or related action. In considering this factor, the Commission may take into account, among other things:
(i)
Whether the whistleblower provided ongoing, extensive, and timely cooperation and assistance by, for example, helping to explain complex transactions, interpreting key evidence, or identifying new and productive lines of inquiry;
(ii)
The timeliness of the whistleblower’s initial report to the Commission or to an internal compliance or reporting system of business organizations committing, or impacted by, the securities violations, where appropriate;
(iii) The resources conserved as a result of the whistleblower’s assistance;
(iv)
Whether the whistleblower appropriately encouraged or authorized others to assist the staff of the Commission who might otherwise not have participated in the investigation or related action;
(v)
The efforts undertaken by the whistleblower to remediate the harm caused by the violations, including assisting the authorities in the recovery of the fruits and instrumentalities of the violations; and
(vi)
Any unique hardships experienced by the whistleblower as a result of his or her reporting and assisting in the enforcement action.
(3)
Law enforcement interest. The Commission will assess its programmatic interest in deterring
violations of the securities laws by making awards to whistleblowers who provide information that leads to the successful enforcement of such laws. In considering this factor, the Commission may take into account, among other things:
(i)
The degree to which an award enhances the Commission’s ability to enforce the Federal securities laws and protect investors; and
(ii)
The degree to which an award encourages the submission of high quality information from whistleblowers by appropriately rewarding whistleblowers’ submission of significant information and assistance, even in cases where the monetary sanctions available for collection are limited or potential monetary sanctions were reduced or eliminated by the Commission because an entity self-reported a securities violation following the whistleblower’s related internal disclosure, report, or submission.
(iii) Whether the subject matter of the action is a Commission priority, whether the reported misconduct involves regulated entities or fiduciaries, whether the whistleblower exposed an industry-wide practice, the type and severity of the securities violations, the age and duration of misconduct, the number of violations, and the isolated, repetitive, or ongoing nature of the violations; and
(iv)
The dangers to investors or others presented by the underlying violations involved in the enforcement action, including the amount of harm or potential harm caused by the underlying violations, the type of harm resulting from or threatened by the underlying violations, and the number of individuals or entities harmed.
(4)
Participation in internal compliance systems. The Commission will assess whether, and the extent to which, the whistleblower and any legal representative of the whistleblower participated in internal compliance systems. In considering this factor, the Commission may take into account, among other things:
(i)
Whether, and the extent to which, a whistleblower reported the possible securities violations through internal whistleblower, legal or compliance procedures before, or at the same time as, reporting them to the Commission; and
(ii)
Whether, and the extent to which, a whistleblower assisted any internal investigation or inquiry concerning the reported securities violations.
(b)
Factors that may decrease the amount of a whistleblower’s award. In determining whether to decrease the amount of an award, the Commission
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will consider the following factors, which are not listed in order of importance.
(1)
Culpability. The Commission will assess the culpability or involvement of the whistleblower in matters associated with the Commission’s action or related actions. In considering this factor, the Commission may take into account, among other things:
(i)
The whistleblower’s role in the securities violations;
(ii)
The whistleblower’s education, training, experience, and position of responsibility at the time the violations occurred;
(iii) Whether the whistleblower acted with scienter, both generally and in relation to others who participated in the violations;
(iv)
Whether the whistleblower financially benefitted from the violations;
(v)
Whether the whistleblower is a recidivist;
(vi)
The egregiousness of the underlying fraud committed by the whistleblower; and
(vii) Whether the whistleblower knowingly interfered with the Commission’s investigation of the violations or related enforcement actions.
(2)
Unreasonable reporting delay. The Commission will assess whether the whistleblower unreasonably delayed reporting the securities violations. In considering this factor, the Commission may take into account, among other things:
(i)
Whether the whistleblower was aware of the relevant facts but failed to take reasonable steps to report or prevent the violations from occurring or continuing;
(ii)
Whether the whistleblower was aware of the relevant facts but only reported them after learning about a related inquiry, investigation, or enforcement action; and
(iii) Whether there was a legitimate reason for the whistleblower to delay reporting the violations.
(3)
Interference with internal compliance and reporting systems. The Commission will assess, in cases where the whistleblower interacted with his or her entity’s internal compliance or reporting system, whether the whistleblower undermined the integrity of such system. In considering this factor, the Commission will take into account whether there is evidence provided to the Commission that the whistleblower knowingly:
(i)
Interfered with an entity’s established legal, compliance, or audit procedures to prevent or delay detection of the reported securities violation;
(ii) Made any material false, fictitious, or fraudulent statements or representations that hindered an entity’s efforts to detect, investigate, or remediate the reported securities violations; and
(iii) Provided any false writing or document knowing the writing or document contained any false, fictitious or fraudulent statements or entries that hindered an entity’s efforts to detect, investigate, or remediate the reported securities violations.
§ 240.21F–7 Confidentiality of submissions.
(a)
Section 21F(h)(2) of the Exchange Act (15 U.S.C. 78u–6(h)(2)) requires that the Commission not disclose information that could reasonably be expected to reveal the identity of a whistleblower, except that the Commission may disclose such information in the following circumstances:
(1)
When disclosure is required to a defendant or respondent in connection with a Federal court or administrative action that the Commission files or in another public action or proceeding that is filed by an authority to which we provide the information, as described below;
(2)
When the Commission determines that it is necessary to accomplish the purposes of the Exchange Act (15 U.S.C. 78a) and to protect investors, it may provide your information to the Department of Justice, an appropriate regulatory authority, a self regulatory organization, a state attorney general in connection with a criminal investigation, any appropriate state regulatory authority, the Public Company Accounting Oversight Board, or foreign securities and law enforcement authorities. Each of these entities other than foreign securities and law enforcement authorities is subject to the confidentiality requirements set forth in Section 21F(h) of the Exchange Act (15 U.S.C. 78u–6(h)). The Commission will determine what assurances of confidentiality it deems appropriate in providing such information to foreign securities and law enforcement authorities.
(3)
The Commission may make disclosures in accordance with the Privacy Act of 1974 (5 U.S.C. 552a).
(b)
You may submit information to the Commission anonymously. If you do so, however, you must also do the following:
(1)
You must have an attorney represent you in connection with both your submission of information and your claim for an award, and your attorney’s name and contact information
must be provided to the Commission at the time you submit your information;
(2)
You and your attorney must follow the procedures set forth in § 240.21F–9 of this chapter for submitting original information anonymously; and
(3)
Before the Commission will pay any award to you, you must disclose your identity to the Commission and your identity must be verified by the Commission as set forth in § 240.21F–10 of this chapter.
§ 240.21F–8 Eligibility.
(a)
To be eligible for a whistleblower award, you must give the Commission information in the form and manner that the Commission requires. The procedures for submitting information and making a claim for an award are described in § 240.21F–9 through § 240.21F–11 of this chapter. You should read these procedures carefully because you need to follow them in order to be eligible for an award, except that the Commission may, in its sole discretion, waive any of these procedures based upon a showing of extraordinary circumstances.
(b)
In addition to any forms required by these rules, the Commission may also require that you provide certain additional information. You may be required to:
(1)
Provide explanations and other assistance in order that the staff may evaluate and use the information that you submitted;
(2)
Provide all additional information in your possession that is related to the subject matter of your submission in a complete and truthful manner, through follow-up meetings, or in other forms that our staff may agree to;
(3)
Provide testimony or other evidence acceptable to the staff relating to whether you are eligible, or otherwise satisfy any of the conditions, for an award; and
(4)
Enter into a confidentiality agreement in a form acceptable to the Office of the Whistleblower, covering any non-public information that the Commission provides to you, and including a provision that a violation of the agreement may lead to your ineligibility to receive an award.
(c)
You are not eligible to be considered for an award if you do not satisfy the requirements of paragraphs
(a)
and (b) of this section. In addition, you are not eligible if:
(1)
You are, or were at the time you acquired the original information provided to the Commission, a member, officer, or employee of the Commission, the Department of Justice, an appropriate regulatory agency, a self-regulatory organization, the Public
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Company Accounting Oversight Board, or any law enforcement organization;
(2)
You are, or were at the time you acquired the original information provided to the Commission, a member, officer, or employee of a foreign government, any political subdivision, department, agency, or instrumentality of a foreign government, or any other foreign financial regulatory authority as that term is defined in Section 3(a)(52) of the Exchange Act (15 U.S.C. 78c(a)(52));
(3)
You are convicted of a criminal violation that is related to the Commission action or to a related action (as defined in § 240.21F–4 of this chapter) for which you otherwise could receive an award;
(4)
You obtained the original information that you gave the Commission through an audit of a company’s financial statements, and making a whistleblower submission would be contrary to requirements of Section 10A of the Exchange Act (15
U.S.C. 78j–a).
(5)
You are the spouse, parent, child, or sibling of a member or employee of the Commission, or you reside in the same household as a member or employee of the Commission;
(6)
You acquired the original information you gave the Commission from a person:
(i)
Who is subject to paragraph (c)(4) of this section, unless the information is not excluded from that person’s use, or you are providing the Commission with information about possible violations involving that person; or
(ii)
With the intent to evade any provision of these rules; or
(7)
In your whistleblower submission, your other dealings with the Commission, or your dealings with another authority in connection with a related action, you knowingly and willfully make any false, fictitious, or fraudulent statement or representation, or use any false writing or document knowing that it contains any false, fictitious, or fraudulent statement or entry with intent to mislead or otherwise hinder the Commission or another authority.
§ 240.21F–9 Procedures for submitting original information.
(a)
To be considered a whistleblower under Section 21F of the Exchange Act (15 U.S.C. 78u–6(h)), you must submit your information about a possible securities law violation by either of these methods:
(1)
Online, through the Commission’s Web site located at https://www.sec.gov; or
(2)
By mailing or faxing a Form TCR (Tip, Complaint or Referral) (referenced in § 249.1800 of this chapter) to the SEC Office of the Whistleblower, 100 F Street NE., Washington, DC 20549– 5631, Fax (703) 813–9322.
(b)
Further, to be eligible for an award, you must declare under penalty of perjury at the time you submit your information pursuant to paragraph (a)(1) or (2) of this section that your information is true and correct to the best of your knowledge and belief.
(c)
Notwithstanding paragraphs (a) and (b) of this section, if you are providing your original information to the Commission anonymously, then your attorney must submit your information on your behalf pursuant to the procedures specified in paragraph
(a)
of this section. Prior to your attorney’s submission, you must provide your attorney with a completed Form TCR (referenced in § 249.1800 of this chapter) that you have signed under penalty of perjury. When your attorney makes her submission on your behalf, your attorney will be required to certify that he or she:
(1) Has verified your identity;
(2)
Has reviewed your completed and signed Form TCR (referenced in § 249.1800 of this chapter) for completeness and accuracy and that the information contained therein is true, correct and complete to the best of the attorney’s knowledge, information and belief;
(3)
Has obtained your non-waivable consent to provide the Commission with your original completed and signed Form TCR (referenced in § 249.1800 of this chapter) in the event that the Commission requests it due to concerns that you may have knowingly and willfully made false, fictitious, or fraudulent statements or representations, or used any false writing or document knowing that the writing or document contains any false fictitious or fraudulent statement or entry; and
(4)
Consents to be legally obligated to provide the signed Form TCR (referenced in § 249.1800 of this chapter) within seven (7) calendar days of receiving such request from the Commission.
(d)
If you submitted original information in writing to the Commission after July 21, 2010 (the date of enactment of the Dodd-Frank Wall Street Reform and Consumer Protection Act) but before the effective date of these rules, your submission will be deemed to satisfy the requirements set forth in paragraphs (a) and (b) of this section. If you were an anonymous whistleblower, however, you must
provide your attorney with a completed and signed copy of Form TCR (referenced in § 249.1800 of this chapter) within 60 days of the effective date of these rules, your attorney must retain the signed form in his or her records, and you must provide of copy of the signed form to the Commission staff upon request by Commission staff prior to any payment of an award to you in connection with your submission. Notwithstanding the foregoing, you must follow the procedures and conditions for making a claim for a whistleblower award described in §§ 240.21F–10 and 240.21F–11 of this chapter.
§ 240.21F–10 Procedures for making a claim for a whistleblower award in SEC actions that result in monetary sanctions in excess of $1,000,000.
(a)
Whenever a Commission action results in monetary sanctions totaling more than $1,000,000, the Office of the Whistleblower will cause to be published on the Commission’s Web site a ‘‘Notice of Covered Action.’’ Such Notice will be published subsequent to the entry of a final judgment or order that alone, or collectively with other judgments or orders previously entered in the Commission action, exceeds $1,000,000; or, in the absence of such judgment or order subsequent to the deposit of monetary sanctions exceeding $1,000,000 into a disgorgement or other fund pursuant to Section 308(b) of the Sarbanes-Oxley Act of 2002. A claimant will have ninety (90) days from the date of the Notice of Covered Action to file a claim for an award based on that action, or the claim will be barred.
(b) To file a claim for a whistleblower award, you must file Form WB–APP, Application for Award for Original Information Provided Pursuant to Section 21F of the Securities Exchange Act of 1934 (referenced in § 249.1801 of this chapter). You must sign this form as the claimant and submit it to the Office of the Whistleblower by mail or fax. All claim forms, including any attachments, must be received by the Office of the Whistleblower within ninety (90) calendar days of the date of the Notice of Covered Action in order to be considered for an award.
(c)
If you provided your original information to the Commission anonymously, you must disclose your identity on the Form WB–APP (referenced in § 249.1801 of this chapter), and your identity must be verified in a form and manner that is acceptable to the Office of the Whistleblower prior to the payment of any award.
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(d)
Once the time for filing any appeals of the Commission’s judicial or administrative action has expired, or where an appeal has been filed, after all appeals in the action have been concluded, the staff designated by the Director of the Division of Enforcement (‘‘Claims Review Staff’’) will evaluate all timely whistleblower award claims submitted on Form WB–APP (referenced in § 249.1801 of this chapter) in accordance with the criteria set forth in these rules. In connection with this process, the Office of the Whistleblower may require that you provide additional information relating to your eligibility for an award or satisfaction of any of the conditions for an award, as set forth in § 240.21F–(8)(b) of this chapter. Following that evaluation, the Office of the Whistleblower will send you a Preliminary Determination setting forth a preliminary assessment as to whether the claim should be allowed or denied and, if allowed, setting forth the proposed award percentage amount.
(e)
You may contest the Preliminary Determination made by the Claims Review Staff by submitting a written response to the Office of the Whistleblower setting forth the grounds for your objection to either the denial of an award or the proposed amount of an award. The response must be in the form and manner that the Office of the Whistleblower shall require. You may also include documentation or other evidentiary support for the grounds advanced in your response.
(1)
Before determining whether to contest a Preliminary Determination, you may:
(i)
Within thirty (30) days of the date of the Preliminary Determination, request that the Office of the Whistleblower make available for your review the materials from among those set forth in § 240.21F–12(a) of this chapter that formed the basis of the Claims Review Staff’s Preliminary Determination.
(ii)
Within thirty (30) calendar days of the date of the Preliminary Determination, request a meeting with the Office of the Whistleblower; however, such meetings are not required and the office may in its sole discretion decline the request.
(2)
If you decide to contest the Preliminary Determination, you must submit your written response and supporting materials within sixty (60) calendar days of the date of the Preliminary Determination, or if a request to review materials is made pursuant to paragraph (e)(1) of this section, then within sixty (60) calendar days of the Office of the Whistleblower
making those materials available for your review.
(f)
If you fail to submit a timely response pursuant to paragraph (e) of this section, then the Preliminary Determination will become the Final Order of the Commission (except where the Preliminary Determination recommended an award, in which case the Preliminary Determination will be deemed a Proposed Final Determination for purposes of paragraph (h) of this section). Your failure to submit a timely response contesting a Preliminary Determination will constitute a failure to exhaust administrative remedies, and you will be prohibited from pursuing an appeal pursuant to § 240.21F–13 of this chapter.
(g)
If you submit a timely response pursuant to paragraph (e) of this section, then the Claims Review Staff will consider the issues and grounds advanced in your response, along with any supporting documentation you provided, and will make its Proposed Final Determination.
(h)
The Office of the Whistleblower will then notify the Commission of each Proposed Final Determination. Within thirty 30 days thereafter, any Commissioner may request that the Proposed Final Determination be reviewed by the Commission. If no Commissioner requests such a review within the 30-day period, then the Proposed Final Determination will become the Final Order of the Commission. In the event a Commissioner requests a review, the Commission will review the record that the staff relied upon in making its determinations, including your previous submissions to the Office of the Whistleblower, and issue its Final Order.
(i)
The Office of the Whistleblower will provide you with the Final Order of the Commission.
§ 240.21F–11 Procedures for determining awards based upon a related action.
(a)
If you are eligible to receive an award following a Commission action that results in monetary sanctions totaling more than $1,000,000, you also may be eligible to receive an award based on the monetary sanctions that are collected from a related action (as defined in § 240.21F–3 of this chapter).
(b)
You must also use Form WB–APP (referenced in § 249.1801 of this chapter) to submit a claim for an award in a related action. You must sign this form as the claimant and submit it to the Office of the Whistleblower by mail or fax as follows:
(1)
If a final order imposing monetary sanctions has been entered in a related
action at the time you submit your claim for an award in connection with a Commission action, you must submit your claim for an award in that related action on the same Form WB–APP (referenced in § 249.1801 of this chapter) that you use for the Commission action.
(2)
If a final order imposing monetary sanctions in a related action has not been entered at the time you submit your claim for an award in connection with a Commission action, you must submit your claim on Form WB–APP (referenced in § 249.1801 of this chapter) within ninety (90) days of the issuance of a final order imposing sanctions in the related action.
(c)
The Office of the Whistleblower may request additional information from you in connection with your claim for an award in a related action to demonstrate that you directly (or through the Commission) voluntarily provided the governmental agency, regulatory authority or self-regulatory organization the same original information that led to the Commission’s successful covered action, and that this information led to the successful enforcement of the related action. The Office of the Whistleblower may, in its discretion, seek assistance and confirmation from the other agency in making this determination.
(d)
Once the time for filing any appeals of the final judgment or order in a related action has expired, or if an appeal has been filed, after all appeals in the action have been concluded, the Claims Review Staff will evaluate all timely whistleblower award claims submitted on Form WB–APP (referenced in § 249.1801 of this chapter) in connection with the related action. The evaluation will be undertaken pursuant to the criteria set forth in these rules. In connection with this process, the Office of the Whistleblower may require that you provide additional information relating to your eligibility for an award or satisfaction of any of the conditions for an award, as set forth in § 240.21F–(8)(b) of this chapter. Following this evaluation, the Office of the Whistleblower will send you a Preliminary Determination setting forth a preliminary assessment as to whether the claim should be allowed or denied and, if allowed, setting forth the proposed award percentage amount.
(e)
You may contest the Preliminary Determination made by the Claims Review Staff by submitting a written response to the Office of the Whistleblower setting forth the grounds for your objection to either the denial of
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an award or the proposed amount of an award. The response must be in the form and manner that the Office of the Whistleblower shall require. You may also include documentation or other evidentiary support for the grounds advanced in your response.
(1)
Before determining whether to contest a Preliminary Determination, you may:
(i)
Within thirty (30) days of the date of the Preliminary Determination, request that the Office of the Whistleblower make available for your review the materials from among those set forth in § 240.21F–12(a) of this chapter that formed the basis of the Claims Review Staff’s Preliminary Determination.
(ii)
Within thirty (30) days of the date of the Preliminary Determination, request a meeting with the Office of the Whistleblower; however, such meetings are not required and the office may in its sole discretion decline the request.
(2)
If you decide to contest the Preliminary Determination, you must submit your written response and supporting materials within sixty (60) calendar days of the date of the Preliminary Determination, or if a request to review materials is made pursuant to paragraph (e)(1)(i) of this section, then within sixty (60) calendar days of the Office of the Whistleblower making those materials available for your review.
(f)
If you fail to submit a timely response pursuant to paragraph (e) of this section, then the Preliminary Determination will become the Final Order of the Commission (except where the Preliminary Determination recommended an award, in which case the Preliminary Determination will be deemed a Proposed Final Determination for purposes of paragraph (h) of this section). Your failure to submit a timely response contesting a Preliminary Determination will constitute a failure to exhaust administrative remedies, and you will be prohibited from pursuing an appeal pursuant to § 240.21F–13 of this chapter.
(g)
If you submit a timely response pursuant to paragraph (e) of this section, then the Claims Review Staff will consider the issues and grounds that you advanced in your response, along with any supporting documentation you provided, and will make its Proposed Final Determination.
(h)
The Office of the Whistleblower will notify the Commission of each Proposed Final Determination. Within thirty 30 days thereafter, any Commissioner may request that the Proposed Final Determination be reviewed by the Commission. If no
Commissioner requests such a review within the 30-day period, then the Proposed Final Determination will become the Final Order of the Commission. In the event a Commissioner requests a review, the Commission will review the record that the staff relied upon in making its determinations, including your previous submissions to the Office of the Whistleblower, and issue its Final Order.
(i) The Office of the Whistleblower will provide you with the Final Order of the Commission.
§ 240.21F–12 Materials that may form the basis of an award determination and that may comprise the record on appeal.
(a)
The following items constitute the materials that the Commission and the Claims Review Staff may rely upon to make an award determination pursuant to §§ 240.21F–10 and 240.21F–11 of this chapter:
(1)
Any publicly available materials from the covered action or related action, including:
(i)
The complaint, notice of hearing, answers and any amendments thereto;
(ii)
The final judgment, consent order, or final administrative order;
(iii) Any transcripts of the proceedings, including any exhibits;
(iv)
Any items that appear on the docket; and
(v) Any appellate decisions or orders.
(2)
The whistleblower’s Form TCR (referenced in § 249.1800 of this chapter), including attachments, and other related materials provided by the whistleblower to assist the Commission with the investigation or examination;
(3)
The whistleblower’s Form WB– APP (referenced in § 249.1800 of this chapter), including attachments, and any other filings or submissions from the whistleblower in support of the award application;
(4)
Sworn declarations (including attachments) from the Commission staff regarding any matters relevant to the award determination;
(5)
With respect to an award claim involving a related action, any statements or other information that the entity provides or identifies in connection with an award determination, provided the entity has authorized the Commission to share the information with the claimant. (Neither the Commission nor the Claims Review Staff may rely upon information that the entity has not authorized the Commission to share with the claimant); and
(6)
Any other documents or materials including sworn declarations from third-parties that are received or
obtained by the Office of the Whistleblower to assist the Commission resolve the claimant’s award application, including information related to the claimant’s eligibility. (Neither the Commission nor the Claims Review Staff may rely upon information that the entity has not authorized the Commission to share with the claimant).
(b) These rules do not entitle claimants to obtain from the Commission any materials (including any pre-decisional or internal deliberative process materials that are prepared exclusively to assist the Commission in deciding the claim) other than those listed in paragraph (a) of this section. Moreover, the Office of the Whistleblower may make redactions as necessary to comply with any statutory restrictions, to protect the Commission’s law enforcement and regulatory functions, and to comply with requests for confidential treatment from other law enforcement and regulatory authorities. The Office of the Whistleblower may also require you to sign a confidentiality agreement, as set forth in § 240.21F–(8)(b)(4) of this chapter, before providing these materials.
§ 240.21F–13 Appeals.
(a)
Section 21F of the Exchange Act (15 U.S.C. 78u–6) commits determinations of whether, to whom, and in what amount to make awards to the Commission’s discretion. A determination of whether or to whom to make an award may be appealed within 30 days after the Commission issues its final decision to the United States Court of Appeals for the District of Columbia Circuit, or to the circuit where the aggrieved person resides or has his principal place of business. Where the Commission makes an award based on the factors set forth in § 240.21F–6 of this chapter of not less than 10 percent and not more than 30 percent of the monetary sanctions collected in the Commission or related action, the Commission’s determination regarding the amount of an award (including the allocation of an award as between multiple whistleblowers, and any factual findings, legal conclusions, policy judgments, or discretionary assessments involving the Commission’s consideration of the factors in § 240.21F–6 of this chapter) is not appealable.
(b)
The record on appeal shall consist of the Preliminary Determination, the Final Order of the Commission, and any other items from those set forth in § 240.21F–12(a) of this chapter that either the claimant or the Commission identifies for inclusion in the record.
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The record on appeal shall not include any pre-decisional or internal deliberative process materials that are prepared exclusively to assist the Commission in deciding the claim (including the staff’s Draft Final Determination in the event that the Commissioners reviewed the claim and issued the Final Order).
§ 240.21F–14 Procedures applicable to the payment of awards.
(a)
Any award made pursuant to these rules will be paid from the Securities and Exchange Commission Investor Protection Fund (the ‘‘Fund’’).
(b)
A recipient of a whistleblower award is entitled to payment on the award only to the extent that a monetary sanction is collected in the Commission action or in a related action upon which the award is based.
(c)
Payment of a whistleblower award for a monetary sanction collected in a Commission action or related action shall be made following the later of:
(1)
The date on which the monetary sanction is collected; or
(2)
The completion of the appeals process for all whistleblower award claims arising from:
(i)
The Notice of Covered Action, in the case of any payment of an award for a monetary sanction collected in a Commission action; or
(ii)
The related action, in the case of any payment of an award for a monetary sanction collected in a related action.
(d)
If there are insufficient amounts available in the Fund to pay the entire amount of an award payment within a reasonable period of time from the time for payment specified by paragraph (c) of this section, then subject to the following terms, the balance of the payment shall be paid when amounts become available in the Fund, as follows:
(1)
Where multiple whistleblowers are owed payments from the Fund based on awards that do not arise from the same Notice of Covered Action (or related action), priority in making these payments will be determined based upon the date that the collections for which the whistleblowers are owed payments occurred. If two or more of these collections occur on the same date, those whistleblowers owed payments based on these collections will be paid on a pro rata basis until sufficient amounts become available in the Fund to pay their entire payments.
(2)
Where multiple whistleblowers are owed payments from the Fund based on awards that arise from the same Notice of Covered Action (or related action), they will share the same payment priority and will be paid on a pro rata
basis until sufficient amounts become available in the Fund to pay their entire payments.
§ 240.21F–15 No amnesty.
The Securities Whistleblower Incentives and Protection provisions do not provide amnesty to individuals who provide information to the Commission. The fact that you may become a whistleblower and assist in Commission investigations and enforcement actions does not preclude the Commission from bringing an action against you based upon your own conduct in connection with violations of the Federal securities laws. If such an action is determined to be appropriate, however, the Commission will take your cooperation into consideration in accordance with its Policy Statement Concerning Cooperation by Individuals in Investigations and Related Enforcement Actions (17 CFR 202.12).
§ 240.21F–16 Awards to whistleblowers who engage in culpable conduct.
In determining whether the required $1,000,000 threshold has been satisfied (this threshold is further explained in § 240.21F–10 of this chapter) for purposes of making any award, the Commission will not take into account any monetary sanctions that the whistleblower is ordered to pay, or that are ordered against any entity whose liability is based substantially on conduct that the whistleblower directed, planned, or initiated. Similarly, if the Commission determines that a whistleblower is eligible for an award, any amounts that the whistleblower or such an entity pay in sanctions as a result of the action or related actions will not be included within the calculation of the amounts collected for purposes of making payments.
§ 240.21F–17 Staff communications with individuals reporting possible securities law violations.
(a)
No person may take any action to impede an individual from communicating directly with the Commission staff about a possible securities law violation, including enforcing, or threatening to enforce, a confidentiality agreement (other than agreements dealing with information covered by § 240.21F–4(b)(4)(i) and § 240.21F–4(b)(4)(ii) of this chapter related to the legal representation of a client) with respect to such communications.
(b)
If you are a director, officer, member, agent, or employee of an entity that has counsel, and you have initiated communication with the Commission relating to a possible securities law violation, the staff is authorized to
communicate directly with you regarding the possible securities law violation without seeking the consent of the entity’s counsel.
PART 249—FORMS, SECURITIES EXCHANGE ACT OF 1934
■ 3. The authority citation for Part 249 is amended by adding the following citations in numerical order to read as follows:
Authority: 15 U.S.C. 78a, et seq. and 7201 et seq.; and 18 U.S.C. 1350, unless otherwise noted.
* * * * *
Section 249.1800 is also issued under Public Law 111.203, § 922(a), 124 Stat 1841 (2010).
Section 249.1801 is also issued under Public Law 111.203, § 922(a), 124 Stat 1841 (2010).
* * * * *
■ 4. Add Subpart S to read as follows:
Subpart S—Whistleblower Forms
Sec.
249.1800 Form TCR, tip, complaint or
referral. 249.1801 Form WB–APP, Application for
award for original information submitted
pursuant to Section 21F of the Securities
Exchange Act of 1934.
§ 249.1800 Form TCR, tip, complaint or referral.
This form may be used by anyone wishing to provide the SEC with information concerning a violation of the Federal securities laws. The information provided may be disclosed to Federal, state, local, or foreign agencies responsible for investigating, prosecuting, enforcing, or implementing the Federal securities laws, rules, or regulations consistent with the confidentiality requirements set forth in Section 21F(h)(2) of the Exchange Act (15 U.S.C. 78u–6(h)(2)) and § 240.21F–7 of this chapter.
§ 249.1801 Form WB–APP, Application for award for original information submitted pursuant to Section 21F of the Securities Exchange Act of 1934.
This form must be used by persons making a claim for a whistleblower award in connection with information provided to the SEC or to another agency in a related action. The information provided will enable the Commission to determine your eligibility for payment of an award pursuant to Section 21F of the Securities Exchange Act of 1934 (15
U.S.C. 78u–6). This information may be disclosed to Federal, state, local, or foreign agencies responsible for investigating, prosecuting, enforcing, or
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implementing the Federal securities and § 240.21F–7 of this chapter. Note: The following Forms will not appear laws, rules, or regulations consistent Furnishing the information is voluntary, in the Code of Federal Regulations. with the confidentiality requirements but a decision not to do so may result
BILLING CODE 8011–01–P
set forth in Section 21F(h)(2) of the in you not being eligible for award Exchange Act (15 U.S.C. 78u–6(h)(2)) consideration.
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BILLING CODE 8011–01–C
Privacy Act Statement
This notice is given under the Privacy Act of 1974. This form may be used by anyone wishing to provide the SEC with information concerning a possible violation of the federal securities laws. We are authorized to request information from you by various laws: Sections 19 and 20 of the Securities Act of 1933, Sections 21 and 21F of the Securities Exchange Act of 1934, Section 321 of the Trust Indenture Act of 1939, Section 42 of the Investment Company Act of 1940, Section 209 of the Investment Advisers Act of 1940 and Title 17 of the Code of Federal Regulations, Section 202.5.
Our principal purpose in requesting information is to gather facts in order to determine whether any person has violated, is violating, or is about to violate any provision of the federal securities laws or rules for which we have enforcement authority. Facts developed may, however, constitute violations of other laws or rules. Further, if you are submitting information for the SEC’s whistleblower award program pursuant to Section 21F of the Securities Exchange Act of 1934 (Exchange Act), the information provided will be used in connection with our evaluation of your or your client’s eligibility and other factors relevant to our determination of whether to pay an award to you or your client.
The information provided may be used by SEC personnel for purposes of investigating possible violations of, or to conduct investigations authorized by, the federal securities law; in proceedings in which the federal securities laws are in issue or the SEC is a party; to coordinate law enforcement activities between the SEC and other federal, state, local or foreign law enforcement agencies, securities self regulatory organizations, and foreign securities authorities; and pursuant to other routine uses as described in SEC– 42 ‘‘Enforcement Files.’’
Furnishing the information requested herein is voluntary. However, a decision not provide any of the requested information, or failure to provide complete information, may affect our evaluation of your submission. Further, if you are submitting this information for the SEC whistleblower program and you do not execute the Whistleblower Declaration or, if you are submitting information anonymously, identify the attorney representing you in this matter, you may not be considered for an award.
Questions concerning this form maybe directed to the SEC Office of the Whistleblower, 100 F Street, NE, Washington, DC 20549, Tel. (202) 551– 4790, Fax (703) 813–9322.
Submission Procedures
•
After manually completing this Form TCR, please send it by mail or delivery to the SEC Office of the Whistleblower, 100 F. Street, NE, Washington, DC 20549, or by facsimile to (703) 813–9322.
•
You have the right to submit information anonymously. If you are submitting anonymously and you want to be considered for a whistleblower award, however, you must be represented by an attorney in this matter
and Section B of this form must be completed. Otherwise, you may, but are not required, to have an attorney. If you are not represented by an attorney in this matter, you may leave Section B blank.
• If you are submitting information for the SEC’s whistleblower award program, you must submit your information either using this Form TCR or electronically through the SEC’s Electronic Data Collection System, available on the SEC web site at www.sec.gov.
Instructions for Completing Form TCR:
Section A: Information about You
Questions 1–3: Please provide the following information about yourself:
•
Last name, first name, and middle initial
•
Complete address, including city, state and zip code
•
Telephone number and, if available, an alternate number where you can be reached
•
Your e-mail address (to facilitate communications, we strongly encourage you to provide your email address),
•
Your preferred method of communication; and
• Your occupation
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Section B: Information about Your Attorney. Complete this section only if you are represented by an attorney in this matter. You must be represented by an attorney, and this section must be completed, if you are submitting your information anonymously and you want to be considered for the SEC’s whistleblower award program.
Questions 1–4: Provide the following information about the attorney representing you in this matter:
•
Attorney’s name
•
Firm name
•
Complete address, including city, state and zip code
•
Telephone number and fax number, and
• E-mail address
Section C: Tell Us about the Individual and/or Entity You Have a Complaint Against. If your complaint relates to more than two individuals and/or entities, you may attach additional sheets.
Question 1: Choose one of the following that best describes the individual or entity to which your complaint relates:
•
For Individuals: accountant, analyst, attorney, auditor, broker, compliance officer, employee, executive officer or director, financial planner, fund manager, investment advisor representative, stock promoter, trustee, unknown, or other (specify).
•
For Entity: bank, broker-dealer, clearing agency, day trading firm, exchange, Financial Industry Regulatory Authority, insurance company, investment advisor, investment advisor representative, investment company, Individual Retirement Account or 401(k) custodian/administrator, market maker, municipal securities dealers, mutual fund, newsletter company/ investment publication company, on-line trading firm, private fund company (including hedge fund, private equity fund, venture capital fund, or real estate fund), private/closely held company, publicly held company, transfer agent/ paying agent/registrar, underwriter, unknown, or other (specify).
Questions 2–4: For each subject, provide the following information, if known:
• Full name
• Complete address, including city, state and zip code
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Telephone number,
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E-mail address, and
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Internet address, if applicable
Section D: Tell Us about Your Complaint
Question 1: State the date (mm/dd/ yyyy) that the alleged conduct began.
Question 2: Choose the option that you believe best describes the nature of your complaint. If you are alleging more than one violation, please list all that you believe may apply. Use additional sheets if necessary.
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Theft/misappropriation (advance fee fraud; lost or stolen securities; hacking of account)
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Misrepresentation/omission (false/ misleading marketing/sales literature; inaccurate, misleading or non-disclosure by Broker-Dealer, Investment Adviser and Associated Person; false/ material misstatements in firm research that were basis of transaction)
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Offering fraud (Ponzi/pyramid scheme; other offering fraud)
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Registration violations (unregistered securities offering)
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Trading (after hours trading; algorithmic trading; front-running; insider trading, manipulation of securities/prices; market timing; inaccurate quotes/pricing information; program trading; short selling; trading suspensions; volatility)
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Fees/mark-ups/commissions (excessive or unnecessary administrative fees; excessive commissions or sales fees; failure to disclose fees; insufficient notice of change in fees; negotiated fee problems; excessive mark-ups/markdowns; excessive or otherwise improper spreads)
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Corporate disclosure/reporting/ other issuer matter (audit; corporate governance; conflicts of interest by management; executive compensation; failure to notify shareholders of corporate events; false/misleading financial statements, offering documents, press releases, proxy materials; failure to file reports; financial fraud; Foreign Corrupt Practices Act violations; going private transactions; mergers and acquisitions; restrictive legends, including 144 issues; reverse stock splits; selective disclosure—Regulation FD, 17 CFR 243; shareholder proposals; stock options for employees; stock splits; tender offers)
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Sales and advisory practices (background information on past violations/integrity; breach of fiduciary duty/responsibility (IA); failure to disclose breakpoints; churning/ excessive trading; cold calling; conflict of interest; abuse of authority in discretionary trading; failure to respond to investor; guarantee against loss/ promise to buy back shares; high pressure sales techniques; instructions by client not followed; investment objectives not followed; margin; poor investment advice; Regulation E (Electronic Transfer Act); Regulation S– P, 17 CFR 248, (privacy issues);
solicitation methods (non-cold calling; seminars); suitability; unauthorized transactions)
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Operational (bond call; bond default; difficulty buying/selling securities; confirmations/statements; proxy materials/prospectus; delivery of funds/proceeds; dividend and interest problems; exchanges/switches of mutual funds with fund family; margin (illegal extension of margin credit, Regulation T restrictions, unauthorized margin transactions); online issues (trading system operation); settlement (including T+1 or T=3 concerns); stock certificates; spam; tax reporting problems; titling securities (difficulty titling ownership); trade execution.
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Customer accounts (abandoned or inactive accounts; account administration and processing; identity theft affecting account; IPOs: problems with IPO allocation or eligibility; inaccurate valuation of Net Asset Value; transfer of account)
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Comments/complaints about SEC, Self-Regulatory Organization, and Securities Investor Protection Corporation processes & programs (arbitration: bias by arbitrators/forum, failure to pay/comply with award, mandatory arbitration requirements, procedural problems or delays; SEC: complaints about enforcement actions, complaints about rulemaking, failure to act; Self-Regulatory Organization: failure to act; Investor Protection: inadequacy of laws or rules; SIPC: customer protection, proceedings and Broker-Dealer liquidations;
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Other (analyst complaints; market maker activities; employer/employee disputes; specify other).
Question 3a: State whether you or your counsel have had any prior communications with the SEC concerning this matter.
Question 3b: If the answer to question 3a is yes, provide the name of the SEC staff member with whom you or your counsel communicated.
Question 4a: Indicate whether you or your counsel have provided the information you are providing to the SEC to any other agency or organization.
Question 4b: If the answer to question 4a is yes, provide details.
Question 4c: Provide the name and contact information of the point of contact at the other agency or organization, if known.
Question 5a: Indicate whether your complaint relates to an entity of which you are, or were in the past, an officer, director, counsel, employee, consultant, or contractor.
Question 5b: If the answer to question 5a is yes, state whether you have reported this violation to your
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supervisor, compliance office, whistleblower hotline, ombudsman, or any other available mechanism at the entity for reporting violations.
Question 5c: If the answer to question 5b is yes, provide details.
Question 5d: Provide the date on which you took the actions described in questions 5a and 5b.
Question 6a: Indicate whether you have taken any other action regarding your complaint, including whether you complained to the SEC, another regulator, a law enforcement agency, or any other agency or organization; initiated legal action, mediation or arbitration, or initiated any other action.
Question 6b: If you answered yes to question 6a, provide details, including the date on which you took the action(s) described, the name of the person or entity to whom you directed any report or complaint and contact information for the person or entity, if known, and the complete case name, case number, and forum of any legal action you have taken. Use additional sheets if necessary.
Question 7a: Choose from the following the option that you believe best describes the type of security or investment at issue, if applicable:
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1031 exchanges
•
529 plans
•
American Depositary Receipts
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Annuities (equity-indexed annuities, fixed annuities, variable annuities)
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Asset-backed securities
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Auction rate securities
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Banking products (including credit cards)
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Certificates of deposit (CDs)
•
Closed-end funds
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Coins and precious metals (gold, silver, etc.)
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Collateralized mortgage obligations (CMOs)
• Commercial paper
•
Commodities (currency transactions, futures, stock index options)
• Convertible securities
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Debt (corporate, lower-rated or ‘‘junk’’, municipal)
•
Equities (exchange-traded, foreign, Over-the-Counter, unregistered, linked notes)
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Exchange Traded Funds
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Franchises or business ventures
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Hedge funds
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Insurance contracts (not annuities)
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Money-market funds
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Mortgage-backed securities (mortgages, reverse mortgages)
• Mutual funds
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Options (commodity options, index options)
• Partnerships
• Preferred shares
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Prime bank securities/high yield programs
• Promissory notes
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Real estate (real estate investment trusts (REITs))
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Retirement plans (401(k), IRAs)
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Rights and warrants
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Structured note products
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Subprime issues
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Treasury securities
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U.S. government agency securities
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Unit investment trusts (UIT)
•
Viaticals and life settlements
•
Wrap accounts
•
Separately Managed Accounts (SMAs)
• Unknown
•
Other (specify) Question 7b: Provide the name of the issuer or security, if applicable.
Question 7c: Provide the ticker symbol or CUSIP number of the security, if applicable.
Question 8: State in detail all the facts pertinent to the alleged violation. Explain why you believe the facts described constitute a violation of the federal securities laws. Attach additional sheets if necessary.
Question 9: Describe all supporting materials in your possession and the availability and location of additional supporting materials not in your possession. Attach additional sheets if necessary.
Question 10: Describe how you obtained the information that supports your allegation. If any information was obtained from an attorney or in a communication where an attorney was present, identify such information with as much particularity as possible. In addition, if any information was obtained from a public source, identify the source with as much particularity as possible. Attach additional sheets if necessary.
Question 11: You may use this space to identify any documents or other information in your submission that you believe could reasonably be expected to reveal your identity. Explain the basis for your belief that your identity would be revealed if the documents or information were disclosed to a third party.
Question 12: Provide any additional information you think may be relevant.
Section E: Eligibility Requirements
Question 1: State whether you are currently, or were at the time you acquired the original information that you are submitting to the SEC, a member, officer, or employee of the Department of Justice; the Securities and Exchange Commission; the Comptroller of the Currency, the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation, the Office of Thrift Supervision; the Public Company Accounting Oversight Board; any law enforcement organization; or any national securities exchange, registered securities association, registered clearing agency, the Municipal Securities Rulemaking Board
Question 2: State whether you are, or were you at the time you acquired the original information you are submitting to the SEC, a member, officer or employee of a foreign government, any political subdivision, department, agency, or instrumentality of a foreign government, or any other foreign financial regulatory authority as that term is defined in Section 3(a)(52) of the Securities Exchange Act of 1934.
• Section 3(a)(52) of the Exchange Act (15 U.S.C. § 78c(a)(52)) currently defines ‘‘foreign financial regulatory authority’’ as ‘‘any (A) foreign securities authority,
(B) other governmental body or foreign equivalent of a self-regulatory organization empowered by a foreign government to administer or enforce its laws relating to the regulation of fiduciaries, trusts, commercial lending, insurance, trading in contracts of sale of a commodity for future delivery, or other instruments traded on or subject to the rules of a contract market, board of trade, or foreign equivalent, or other financial activities, or (C) membership organization a function of which is to regulate participation of its members in activities listed above.’’
Question 3: State whether you acquired the information you are providing to the SEC through the performance of an engagement required under the securities laws by an independent public accountant.
Question 4: State whether you are providing the information pursuant to a cooperation agreement with the SEC or with any other agency or organization.
Question 5: State whether you are a spouse, parent, child or sibling of a member or employee of the SEC, or whether you reside in the same household as a member or employee of the SEC.
Question 6: State whether you acquired the information you are providing to the SEC from any individual described in Question 1 through 5 of this Section.
Question 7: If you answered ‘‘yes’’ to questions 1 though 6, please provide details.
Question 8a: State whether you are providing the information you are submitting to the SEC before you (or anyone representing you) received any request, inquiry or demand that relates
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to the subject matter of your submission in connection with: (i) an investigation, inspection or examination by the SEC, the Public Company Accounting Oversight Board, or any self-regulatory organization; or (ii) an investigation by Congress, or any other authority of the federal government, or a state Attorney General or securities regulatory authority?
Question 8b: If you answered ‘‘no’’ to questions 8a, please provide details. Use additional sheets if necessary.
Question 9a: State whether you are the subject or target of a criminal investigation or have been convicted of a criminal violation in connection with the information you are submitting to the SEC.
Question 9b: If you answered ‘‘yes’’ to question 9a, please provide details, including the name of the agency or organization that conducted the investigation or initiated the action against you, the name and telephone number of your point of contact at the agency or organization, if available and the investigation/case name and number, if applicable. Use additional sheets, if necessary.
SECTION F: Whistleblower’s Declaration.
You must sign this Declaration if you are submitting this information pursuant to the SEC whistleblower program and wish to be considered for an award. If you are submitting your information anonymously, you must still sign this Declaration, and you must provide your attorney with the original of this signed form.
If you are not submitting your information pursuant to the SEC whistleblower program, you do not need to sign this Declaration.
SECTION G: COUNSEL CERTIFICATION
If you are submitting this information pursuant to the SEC whistleblower program and are doing so anonymously, your attorney must sign the Counsel Certification section.
If you are represented in this matter but you are not submitting your information pursuant to the SEC whistleblower program, your attorney does not need to sign the Counsel Certification Section. BILLING CODE 8011–01–P
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BILLING CODE 8011–01–C
Privacy Act Statement
This notice is given under the Privacy Act of 1974. We are authorized to request information from you by Section 21F of the Securities Exchange Act of 1934. Our principal purpose in requesting this information is to assist in our evaluation of your eligibility and other factors relevant to our determination of whether to pay a whistleblower award to you under Section 21F of the Exchange Act.
However, the information provided may be used by SEC personnel for purposes of investigating possible violations of, or to conduct investigations authorized by, the federal securities law; in proceedings in which the federal securities laws are in issue or the SEC is a party; to coordinate law enforcement activities between the SEC and other federal, state, local or foreign law enforcement agencies, securities self regulatory organizations, and foreign securities authorities; and pursuant to other routine uses as described in SEC– 42 ‘‘Enforcement Files.’’
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Furnishing this information is voluntary, but a decision not do so, or failure to provide complete information, may result in our denying a whistleblower award to you, or may affect our evaluation of the appropriate amount of an award. Further, if you are submitting this information for the SEC whistleblower program and you do not execute the Declaration, you may not be considered for an award.
Questions concerning this form may be directed to the SEC Office of the Whistleblower, 100 F Street, NE, Washington, DC 20549–5631, Tel. (202) 551–4790, Fax (703) 813–9322.
General
•
This form should be used by persons making a claim for a whistleblower award in connection with information provided to the SEC or to another agency in a related action. In order to be deemed eligible for an award, you must meet all the requirements set forth in Section 21F of the Securities Exchange Act of 1934 and the rules thereunder.
•
You must sign the Form WB–APP as the claimant. If you provided your information to the SEC anonymously, you must now disclose your identity on this form and your identity must be verified in a form and manner that is acceptable to the Office of the Whistleblower prior to the payment of any award.
Æ If you are filing your claim in connection with information that you provided to the SEC, then your Form WB–APP, and any attachments thereto, must be received by the SEC Office of the Whistleblower within sixty (60) days of the date of the Notice of Covered Action to which the claim relates.
Æ If you are filing your claim in connection with information you provided to another agency in a related action, then your Form WB–APP, and any attachments thereto, must be received by the SEC Office of the Whistleblower as follows:
•
If a final order imposing monetary sanctions has been entered in a related action at the time you submit your claim for an award in connection with a Commission action, you must submit your claim for an award in that related action on the same Form WB–APP that you use for the Commission action.
•
If a final order imposing monetary sanctions in a related action has not been entered at the time you submit your claim for an award in connection with a Commission action, you must submit your claim on Form WB–APP within sixty (60) days of the issuance of
a final order imposing sanctions in the related action.
• You must submit your Form WB– APP to us in one of the following two ways:
Æ By mailing or delivering the signed form to the SEC Office of the Whistleblower, 100 F Street NE, Washington, DC 20549–5631; or
Æ By faxing the signed form to (703) 813–9322.
Instructions for Completing Form WB– APP
Section A: Applicant’s Information
Questions 1–3: Provide the following information about yourself:
•
First and last name, and middle initial
•
Complete address, including city, state and zip code
•
Telephone number and, if available, an alternate number where you can be reached
• E-mail address
Section B: Attorney’s Information. If you are represented by an attorney in this matter, provide the information requested. If you are not representing an attorney in this matter, leave this Section blank.
Questions 1–4: Provide the following information about the attorney representing you in this matter:
•
Attorney’s name
•
Firm name
•
Complete address, including city, state and zip code
•
Telephone number and fax number, and
• E-mail address.
Section C: Tip/Complaint Details
Question 1: Indicate the manner in which your original information was submitted to the SEC.
Question 2a: Include the TCR (Tip, Complaint or Referral) number to which this claim relates.
Question 2b: Provide the date on which you submitted your information to the SEC.
Question 2c: Provide the name of the individual(s) or entity(s) to which your complaint related.
Section D: Notice of Covered Action
The process for making a claim for a whistleblower award begins with the publication of a ‘‘Notice of a Covered Action’’ on the Commission’s Web site. This notice is published whenever a judicial or administrative action brought by the Commission results in the imposition of monetary sanctions exceeding $1,000,000. The Notice is published on the Commission’s Web site subsequent to the entry of a final judgment or order in the action that by itself, or collectively with other judgments or orders previously entered in the action, exceeds the $1,000,000 threshold.
Question 1: Provide the date of the Notice of Covered Action to which this claim relates.
Question 2: Provide the notice number of the Notice of Covered Action.
Question 3a: Provide the case name referenced in Notice of Covered Action.
Question 3b: Provide the case number referenced in Notice of Covered Action.
Section E: Claims Pertaining to Related Actions
Question 1: Provide the name of the agency or organization to which you provided your information.
Question 2: Provide the name and contact information for your point of contact at the agency or organization, if known.
Question 3a: Provide the date on which that you provided your information to the agency or organization referenced in question E1.
Question 3b: Provide the date on which the agency or organization referenced in question E1 filed the related action that was based upon the information you provided.
Question 4a: Provide the case name of the related action.
Question 4b: Provide the case number of the related action.
Section F: Eligibility Requirements
Question 1: State whether you are currently, or were at the time you acquired the original information that you submitted to the SEC a member, officer, or employee of the Department of Justice; the Securities and Exchange Commission; the Comptroller of the Currency, the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation, the Office of Thrift Supervision; the Public Company Accounting Oversight Board; any law enforcement organization; or any national securities exchange, registered securities association, registered clearing agency, the Municipal Securities Rulemaking Board
Question 2: State whether you are, or were you at the time you acquired the original information you submitted to the SEC, a member, officer or employee of a foreign government, any political subdivision, department, agency, or instrumentality of a foreign government, or any other foreign financial regulatory authority as that term is defined in Section 3(a)(52) of the Securities Exchange Act of 1934.
• Section 3(a)(52) of the Exchange Act (15 U.S.C. § 78c(a)(52)) currently defines
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‘‘foreign financial regulatory authority’’ as ‘‘any (A) foreign securities authority,
(B) other governmental body or foreign equivalent of a self-regulatory organization empowered by a foreign government to administer or enforce its laws relating to the regulation of fiduciaries, trusts, commercial lending, insurance, trading in contracts of sale of a commodity for future delivery, or other instruments traded on or subject to the rules of a contract market, board of trade, or foreign equivalent, or other financial activities, or (C) membership organization a function of which is to regulate participation of its members in activities listed above.’’
Question 3: Indicate whether you acquired the information you provided to the SEC through the performance of an engagement required under the securities laws by an independent public accountant.
Question 4: State whether you provided the information submitted to the SEC pursuant to a cooperation agreement with the SEC or with any other agency or organization.
Question 5: State whether you are a spouse, parent, child or sibling of a member or employee of the Commission, or whether you reside in the same household as a member or employee of the Commission.
Question 6: State whether you acquired the information you are providing to the SEC from any individual described in Question 1 through 5 of this Section.
Question 7: If you answered ‘‘yes’’ to questions 1 though 6, please provide details.
Question 8a: State whether you provided the information identified submitted to the SEC before you (or anyone representing you) received any request, inquiry or demand from the SEC, Congress, or any other federal, state or local authority, or any self regulatory organization, or the Public Company Accounting Oversight Board about a matter to which the information your submission was relevant.
Question 8b: If you answered ‘‘no’’ to questions 8a, please provide details. Use additional sheets if necessary.
Question 9a: State whether you are the subject or target of a criminal investigation or have been convicted of a criminal violation in connection with the information upon which your application for award is based.
Question 9b: If you answered ‘‘yes’’ to question 9a, please provide details, including the name of the agency or organization that conducted the investigation or initiated the action against you, the name and telephone number of your point of contact at the agency or organization, if available and the investigation/case name and number, if applicable. Use additional sheets, if necessary. If you previously provided this information on Form WB-DEC, you may leave this question blank, unless your response has changed since the time you submitted your Form WB– DEC.
Section G: Entitlement to Award
This section is optional. Use this section to explain the basis for your belief that you are entitled to an award in connection with your submission of information to us or to another agency in connection with a related action. Specifically address how you believe you voluntarily provided the Commission with original information that led to the successful enforcement of a judicial or administrative action filed by the Commission, or a related action.
Refer to Rules 21F–3 and 21F–4 under the Exchange Act for further information concerning the relevant award criteria. You may attach additional sheets, if necessary.
Rule 21F–6 under the Exchange Act provides that in determining the amount of an award, the Commission will evaluate the following factors: (a) the significance of the information provided by a whistleblower to the success of the Commission action or related action; (b) the degree of assistance provided by the whistleblower and any legal representative of the whistleblower in the Commission action or related action;
(c) the programmatic interest of the Commission in deterring violations of the securities laws by making awards to whistleblowers who provide information that leads to the successful enforcement of such laws; and (d) whether the award otherwise enhances the Commission’s ability to enforce the federal securities laws, protect investors, and encourage the submission of high quality information from whistleblowers. Address these factors in your response as well.
Additional information about the criteria the Commission may consider in determining the amount of an award is available on the Commission’s Web site at www.sec.gov/complaint/info_ whistleblowers.shtml.
Section H: Declaration
This section must be signed by the claimant.
Dated: May 25, 2011.
By the Commission.
Elizabeth M. Murphy,Secretary.