The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (“Dodd-Frank Act”) directed the Commodity Futures Trading Commission (“CFTC” or “the Commission”) to establish a whistleblower program to reward individuals who submit helpful information to the CFTC. Under the CFTC Whistleblower Program, an individual who provides the CFTC with original information leading to an enforcement action that results in over $1 million in monetary sanctions is eligible to receive an award of 10 to 30 percent of the amount collected. The statute also provides whistleblowers with protections to help ensure that insiders can approach the CFTC with information without fear of reprisal.
Frequently Asked Questions
- What is the CFTC?
- How does the CFTC whistleblower program work?
- Can whistleblowers submit information to the CFTC anonymously?
- Am I protected from retaliation for blowing the whistle to the CFTC?
- The CFTC Whistleblower Practice Guide
What is the CFTC?
The CFTC is as an independent agency with regulatory authority over futures trading subject to the Commodities Exchange Act (“CEA”). The CEA’s scope has become increasingly varied and complex over the years. It governs a wide range of commodities such as grains, wheat, corn, oats, and cotton as well as crude oil, heating oil, gasoline, and financial instruments, such as stock index futures. The CFTC also has newfound authority to regulate the $400 trillion swaps market—which is about a dozen times the size of the futures market that it has traditionally regulated.
How does the CFTC Whistleblower Program work?
Individuals who have information concerning futures trading violations can submit their information to the CFTC by submitting a “Form TCR” electronically on the CFTC’s website or by sending a hard copy of the form to the Commission. If the CFTC investigates the whistleblower’s allegations, and the information provided by the whistleblower helps the Commission recover more than $1 million, the CFTC will publish a “Notice of Covered Action” referencing the matter on its website. The whistleblower must then file a claim for the whistleblower award by submitting a Form WB-APP within 90 days of the publication of the Notice of Covered Action. The CFTC will then determine the amount of the whistleblower’s award, between 10 to 30 percent of the amount collected by the Commission, and will base its determination on a number of different factors.
Can whistleblowers submit information to the CFTC anonymously?
The CFTC Whistleblower Program allows individuals to submit information anonymously. This is an important feature of the program, as it helps minimize the potential for career harm and thus encourages insiders with access to critical information to come forward. For whistleblowers who desire to submit information anonymously, the program rules require that the whistleblower obtain counsel, who can then submit the information anonymously on the whistleblower’s behalf. CFTC staff take great care to maintain the whistleblower’s anonymity in any ensuing investigation.
Am I protected from retaliation for blowing the whistle to the CFTC?
The CFTC Whistleblower Program offers two layers of protection to guard against retaliation. As a preliminary safeguard, the CFTC provides for confidential and anonymous filing. It treats the identity of all whistleblowers and the information it obtains from a whistleblower as confidential and also provides whistleblowers with the option to report information anonymously. Next, while the CFTC has declined to exercise its enforcement authority over retaliation claims, the Commodity Exchange Act, as amended by the Dodd-Frank Act, enables individuals to file a claim in federal district court if they believe they have been retaliated against for reporting violations of the CEA. Whistleblowers may bring a retaliation claim regardless of whether or not the info they provided to the CFTC qualifies them for an award under the Program. Retaliation claims under the CEA are subject to a two-year statute of limitations. A successful CEA retaliation claim will entitle a whistleblower to reinstatement, back pay with interest, compensation for any special damages sustained as a result of the discharge or discrimination including litigation costs, expert witness fees, and reasonable attorney’s fees.
The CFTC Whistleblower Practice Guide
To learn more about the CFTC Whistleblower Program and how you might qualify to earn an award for providing the CFTC with information about violations of the CEA, read our CFTC Whistleblower Practice Guide, prepared by Katz Banks Kumin partners Lisa J. Banks and Michael A. Filoromo. The Guide provides a comprehensive and up-to-date explanation of the law and valuable practice tips for CFTC whistleblowers and their counsel, and also explains the legal protections that CFTC whistleblowers have against retaliation.