Whistleblowers May Survive Trump’s Regulatory Overhaul

While the Trump Team is clearly trying to change the dynamics of key regulators such as the SEC and CFTC, one popular and successful service — support for whistleblowers — may be staying pretty much the same.

In fact, it appears the CFTC may be strengthening its support of its whistleblowers program, which is a product of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act).

The Dodd-Frank reform legislation set up the whistleblower program at the CFTC, which offers monetary incentives to those who report potential violations of the Commodity Exchange Act (CEA).

Since then, the CFTC recently “unanimously approved amendments to the CFTC’s Whistleblower Rules that will, among other things, strengthen the CFTC’s anti-retaliation protections for whistleblowers and enhance the process for reviewing whistleblower claims,” officials say.

Citing “a reinterpretation” of the regulator’s anti-retaliation authority via the Commodity Exchange Act (CEA), the CFTC or the whistleblower will have the option of taking legal action “against an employer for retaliation against a whistleblower.”

Some of the key aspects of the whistleblower amendments are:
•Stopping employers from impeding “a would-be whistleblower from communicating directly with CFTC staff about a possible violation of the CEA by using a confidentiality, pre-dispute arbitration or similar agreement,” according to the regulator;
•Adding efficiency and transparency to “the process of deciding whistleblower award claims;”
•Harmonizing the CFTC’s rules with those of the SEC’s whistleblower program;
•Establishing a claims review process that will utilize a claims review staff, “in place of the Whistleblower Award Determination Panel,” that will issue a preliminary determination “as to whether an award claim should be granted or denied.” A whistleblower can then request to view the record and may contest the preliminary determination before the CFTC issues a final determination, officials say.
•Officials say the required Form WB-APP may be submitted electronically through the Commission’s website at https://www.cftc.gov or the CFTC’s Whistleblower Program website at https://www.whistleblower.gov . “A Form WB-APP must be received by the commission within 90 days of the date of the notice of covered action or 90 days following the date of a final judgment in a related action,” officials add.

The amendments have also changed the whistleblower eligibility requirements to clarify that “with limited exceptions, a whistleblower may receive an award in a covered action, a related action, or both,” officials say.

“In addition, the amendments authorize the Whistleblower Office to handle facially ineligible award claims that do not relate to a Notice of Covered Action, a final judgment in a Related Action, or a previously filed Form TCR (Tip, Complaint or Referral),” according to the CFTC.

[Copyright By Eugene Grygo]

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