Recent SEC Whistleblower Cases Focus on Repressive Language in Employment‑Related Agreements

In a matter of weeks, the SEC announced settlements of three enforcement actions involving alleged violations of Rule 21F‑17(a) under the Securities Exchange Act of 1934, which provides, “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 . . . with respect to such communications.” The SEC’s focus in the enforcement actions was on language in employment-related agreements that could deter employees from reporting possible violations. This article summarizes the three cases and then shares insights on their significance from Allison Kernisky, Holland & Knight litigation partner and co-editor of the firm’s SECond Opinions blog on SEC enforcement matters, as well as steps fund managers should take to avoid similar SEC scrutiny. See “SEC and CFTC Received Record Number of Whistleblower Tips and Made a Record Award in 2022” (Feb. 2, 2023).

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