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So this article from The Economist starts out with this line:
SNITCHING on your bosses' dodgy doings has never been more rewarding.
You should really watch that, Economist. Using "snitches" really sets the tone of the article by equating whistleblowers with an unfair, negative term that (fortunately) has become less and less synonymous with whistleblowers over the past decades.
Quick history lesson: the phenomenon of whistleblowers really grabbed hold of this country in the 1970s. Ernie Fitzgerald (Department of Defense whistleblower), Daniel Ellsberg (Pentagon Papers whistleblower), Frank Serpico (NYC police corruption whistleblower) – these individuals were chastised at the time for their disclosures from many sides, namely those people they blew the whistle on. Retaliation and threats ran rampant. Ellsberg was labeled a traitor, and some even called for his execution. (In fact, last year, Republican Congressman Mike Rogers of Michigan wouldn't rule out his support of executing Ellsberg back in the day.)
Frank Serpico, of course, was shot for his actions trying to expose corrupt activities. Both he and Ellsberg spoke at GAP's Anyone Can Whistle event last year, btw.
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James Cole was confirmed by the Senate today to the post of Deputy Attorney General at the Department of Justice (DOJ). With this, the long battle to hold him accountable for his part in what happened at AIG during the financial meltdown of 2008 comes to an ignominious end.
With the help of numerous AIG whistleblowers, GAP fought to prevent Cole from assuming his new role, where he will now help to decide who is prosecuted and who is not.
The Obama administration has picked the wrong guy. Beginning in 2005, Cole served as the Independent Consultant (IC) at AIG for five years, as a result of two deferred prosecution agreements between the corporation, the SEC and the DOJ. The US government decided that AIG needed independent monitoring as a result of an earlier corporate fraud that forced then-CEO, Hank Greenberg, to resign as part of a deal that allowed him to escape prosecution.
As the IC, Cole was supposed to review the adequacy of AIG's internal controls over financial reporting, and recommend best practices for strengthening legal compliance. For his trouble, he and Bryan Cave (the law firm where Cole is a partner) were reportedly paid over $20 million by AIG.
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Thad Guyer, a GAP Adjunct Attorney for the past two decades, and partner at T.M. Guyer and Ayers & Friends, has prepared an analysis of the whistleblower provisions of the Dodd-Frank Act, Final Dodd-Frank Whistleblower Rules: Are you prepared? The Whistleblower Perspective, (June 15, 2011). To date, I view this to be among the most comprehensive treatments of the law since the May 25, 2011 final regulations were issued, and it should serve as an aid to corporate whistleblowers and whistleblower advocates.
Under the new SEC Rule 21F, if a whistleblower has provided "information relate[d] to a possible violation of the federal securities laws (including any rules or regulations thereunder)" that results in penalties or recoveries by the SEC or agencies, then that whistleblower is eligible to receive from 10 to 30 percent of that penalty or recovery. The bulk of final Rule 21F sets forth the conditions, processes and exceptions of eligibility for these rewards, but Guyer explains that the very liberal whistleblower protections against retaliation are just as important to the whistleblower cause.
In the 30 page paper, Guyer makes the case that Dodd-Frank Section 922 protections are broader than the whistleblower provisions of Section 806 of the Sarbanes Oxley Act, since the whistleblower's allegations need not be related to shareholder protection as many courts have held. Instead, a Dodd-Frank whistleblower may receive awards and anti-retaliation protections connected with "any judicial or administrative action" brought by the SEC, or specified "related actions" brought by the Department of Justice and other specified federal agencies, self-regulatory organizations, and even state attorney generals. These "related actions" for which a whistleblower may receive awards and protections include court or agency actions against corporations by the Attorney General of the United States, any appropriate regulatory authority, including self-regulatory organizations, or even a State attorney general in connection with any criminal investigation. Rule 21F will be effective 60 days after they are submitted to Congress or published in the Federal Register.
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The Securities and Exchange Commission (SEC) yesterday formalized new rules implementing section 922 of last year's Dodd–Frank Wall Street Reform and Consumer Protection Act, which compensates whistleblowers whose disclosures lead to successful law enforcement recovery of over one million dollars. GAP's Tom Devine characterized this well, stating "Yesterday the SEC took the high road to strengthen the role of whistleblowers against corporate fraud. It rejected demands by a big business 'fraud lobby' and House Republicans to twist whistleblowing into obstruction of justice."
Business lobbyists had demanded an SEC eligibility requirement that whistleblowers first share evidence of corporate fraud with their companies. They also pushed for a "job duties" loophole that would disqualify company employees who are responsible for detecting and acting on illegality. GAP, Voices for Corporate Responsibility, the Project on Government Oversight (POGO) and other good government organizations briefed SEC staff and every commissioner to protest. In a February 18, 2011 comment after staff briefings, GAP argued that there was no rational public policy basis for the demands, which would weaken law enforcement rather than strengthening it.
To resolve the issue, the SEC issued "win win" rules that provide extra compensation for those who work within good faith corporate accountability programs, in advance or simultaneously with the SEC. But the Commission declined to require advance company warnings. Whistleblowers will have the choice of where to bring their evidence to maximize effectiveness. The new rule also permits disclosures by auditors, compliance officers, and others with relevant job duties against corruption. But the rule requires those whistleblowers either to demonstrate imminent serious consequences, corporate bad faith, or inaction for 120 days on internal reports on illegality.
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Join GAP and Georgetown University's Law School for an online event today (Thursday, April 21) at 5:15 p.m. EDT to discuss GAP's newly released step-by-step guide to corporate whistleblowing, The Corporate Whistleblower's Survival Guide: A Handbook for Committing the Truth.
The authors of the book, GAP Legal Director Tom Devine and litigator Tarek F. Maassarani, will be speaking alongside notable whistleblowers whose disclosures play an important role in current pivotal issues:
- Wendell Potter, the noted health insurance company whistleblower who authored Deadly Spin.
- Dr. Janet Chandler, who earned a Supreme Court landmark victory against hospital fraud with help from her then-lawyer Barack Obama, will share her marathon ordeal.
- Larry King, the nuclear whistleblower who was Project Manager for the Three Mile Island cleanup. His whistleblowing on reckless cleanup practices likely prevented a meltdown after the accident.
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GAP is proud to announce the release of the single most comprehensive publication ever created about corporate whistleblowing, The Corporate Whistleblower's Survival Guide: A Handbook for Committing the Truth. Published by Berrett-Koehler, this step-by-step guide details key information that potential business whistleblowers should know before, during, and after blowing the whistle.
Topics include: whistleblowing strategies that have proved successful; common pitfalls; key survival tips; typical retaliatory tactics; working with the media; available resources and help groups; and current legal protections, just to name a few.
The authors of the book, GAP Legal Director Tom Devine and former GAP litigator Tarek F. Maassarani, will be speaking at an online event this Thursday alongside notable whistleblowers from the nuclear and healthcare industries. Noted health care whistleblower Wendell Potter will participate.
Praise for the book has been overwhelming. Many high-profile whistleblowers and good government advocates have reviewed the book and hailed its importance for truth-tellers everywhere. The Corporate Whistleblower's Survival Guide is filled with essential tips for navigating every step of the whistleblowing process -- from detailing what individuals should do if they are simply considering taking action to expose wrongdoing, to navigating the storm of retaliation that inevitably follows.
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Every once in a while during a crisis, the mask of ‘democracy’ slips off the face of US foreign policy, and we see how the federal government really works at its highest levels, using its heaviest hitters. Frank G. Wisner is just such a cleanup batter.
His mala fides
were on display this morning in the press, as an envoy to teetering Egyptian President Hosni Mubarak from US President Barack Obama, who must salvage US ‘interests’ as one of the West’s favorite and most expensive regimes in the Middle East falls apart.
Wisner is exactly what the rest of the world thinks of as the US government, and his résumé explains why popular movements abroad try to steer clear of the American Embassy in their capitals. When a Third World situation gets tricky, and one of our allied dictators, such as Mubarak, faces charges of corruption, authoritarianism and human rights violations, Wisner is the man to call. He can mange the situation by speaking to the tired old monster “as a friend,” and showing him the exit.
Wisner, 72, has spent a career at the interstices of the State Department and multinational corporations that play fast and loose with investors’ money and the law. He has “served” as the United States Ambassador to Egypt (1986-91), the Philippines (1991-92) and India (1994-97), among other assignments.