Building upon the principles articulated in its April 2015 settlement with KBR, Inc., the SEC recently announced a settlement with BlueLinx Holdings Inc. relating to provisions the company had included in severance agreements. Those provisions restricted former employees’ abilities to disclose the company’s confidential information and to receive rewards as SEC whistleblowers. The BlueLinx and KBR consent orders together underscore the SEC’s view that any provisions that might stifle an employee’s communications with the SEC – either explicitly (as in KBR) or implicitly (as in BlueLinx) – are prohibited, regardless of the employer’s intent, its efforts (or lack thereof) to enforce them or their actual chilling effect. In a guest article, Anne E. Beaumont and Lance J. Gotko, partners at Friedman Kaplan Seiler & Adelman, describe the circumstances underlying the KBR and BlueLinx enforcement actions, including the specific contractual provisions that the SEC concluded violated the whistleblower rules, and offer practical advice to hedge fund managers on how they can avoid running afoul of applicable whistleblower rules. For additional insight from Beaumont, see “Hedge Fund Service Providers Must Exercise Caution When Communicating With Investors or Face Liability
” (May 26, 2016); “BDC Finance v. Barclays: Derivatives Collateral Calls in a Chaotic Market
” (Mar. 19, 2015); and “Five Steps for Proactively Managing OTC Derivatives Documentation Risk
” (Apr. 25, 2014). For more on whistleblowers, see “Current and Former SEC, DOJ and NY State Attorney General Practitioners Discuss Regulatory and Enforcement Priorities
” (Jan. 14, 2016); and “RCA Session Offers Insights on Dodd-Frank Whistleblower Regime, Incentives, Anti-Retaliation Protections and Risks
” (Apr. 9, 2015).