BNP Paribas SA’s $9 billion settlement with U.S. authorities, aided by internal whistleblowers, has spurred calls for federal banking regulators to protect and reward individuals who report wrongdoing by banks.
The U.S. Securities and Exchange Commission has scored big enforcement successes and delivered millions of dollars in awards to whistleblowers under a program from the 2010 Dodd-Frank overhaul of Wall Street. The Commodity Futures Trading Commission, as well as the SEC, will provide whistleblowers with a share of fines collected.
“We have a (whistleblower) law that covers tax fraud and fraud against the government (and) commodities and securities violations, but we don’t have similar laws for banking regulators,” said Jordan Thomas, head of the whistleblower representation practice at law firm Labaton Sucharow and an architect of the SEC’s program. “To me, that is a significant gap.”
Whistleblowers played a prominent part in the case of French bank BNP Paribas, which on June 30 pleaded guilty to two criminal charges and agreed to pay nearly $9 billion to settle charges that it violated U.S. sanctions.
Thomas said he regularly received calls from people who want to report violations of banking law. “I have to tell them there is not an avenue for them to report and receive a monetary reward,” he said.
The New York Department of Financial Services, which has jurisdiction on Wall Street, has pushed for state legislation to expand whistleblower protections to banks and insurance companies.
The bill would allow whistleblowers to share in fines resulting from information about violations of insurance, banking or financial services law. It would also protect whistleblowers from retaliation by their employers.
National banking representatives have opposed such whistleblower programs.
Asked about its position on expanded whistleblower protections, the American Bankers Association pointed to a 2010 regulatory filing opposing the SEC’s proposed program. It had warned the program would encourage individuals to “avoid even the most highly effective internal (reporting) policies in order to preserve and protect the possibility, no matter how remote, of receiving large cash awards.”
Eight whistleblowers have received awards ranging from the low six-figures to as high as $14 million through the SEC’s program since it began in late 2011. The CFTC, meanwhile, issued its first award, of $240,000, in May.
Incentives for reporting wrongdoing should be part of any new banking reforms, advocates said. “Because we have had an enforcement approach to compliance, and not an incentive approach, we haven’t put enough effort in looking at rewarding good behavior and this kind of reporting,” said Jennifer Arlen, co-director of the Program on Corporate Compliance and Enforcement at New York University Law school.
There is no sign that Congress or federal banking regulators are devising plans for a new whistleblower program.
The New York State proposal, introduced last year at the department’s request, was not acted on in this year’s session. A spokesman for Republican bill sponsor James Seward said it could come up in 2015. Department of Financial Services Superintendent Benjamin Lawsky’s office did not respond to questions about it.
The proposal noted that “sanctions against employers who retaliate against whistleblowers are currently quite limited in New York.”
A Federal Reserve spokesman said there had been no specific public discussion by any board members of a whistleblowing program, and he declined to speculate on any future plans.
BNP, BARCLAYS AND WHISTLEBLOWERS
In the BNP Paribas case, the U.S. Justice Department included evidence that internal staff had alerted senior management in vain about efforts to conceal transactions with Sudan, Cuba and Iran, all in violation of U.S. sanctions.
In addition, a lawsuit brought last month by the New York Attorney General’s office against Barclays Plc over alleged improprieties in its “dark pool” trading business depicted a workplace that discouraged reporting concerns.
The complaint against Barclays cited the firing of a bank director who refused to alter an analysis that could have alerted customers who were allegedly being misled about their trades.
Barclays has hired outside lawyers to help it investigate the allegations and has until July 25 to decide whether to contest them.
(Reporting by Henry Engler of the Compliance Complete service of Thomson Reuters Accelus; Editing by Randall Mikkelsen and Lisa Von Ahn)