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OCIE Examining Advisers, Broker-Dealers for Compliance with Whistleblower Rule

The SEC’s Office of Compliance Inspections and Examinations (OCIE) issued a Risk Alert regarding the whistleblower provisions of the Dodd-Frank Act and has launched examinations of investment advisers and broker-dealers to determine whether certain provisions of their confidentiality or other employment-related agreements contribute to violations of the Whistleblower Rule. The Risk Alert stated that OCIE examiners will review “compliance manuals, codes of ethics, employment agreements, and severance agreements” and other documents to determine whether certain provisions in those documents “(a) purport to limit the types of information that an employee may convey to the Commission or other authorities; and (b) require departing employees to waive their rights to any individual monetary recovery in connection with reporting information to the government.” The Risk Alert noted that recent enforcement actions have identified provisions in employment-related agreements that contribute to violations of the Whistleblower Rule.  In those cases, the documents “contained language that, by itself or under the circumstances in which the agreements were used, impeded employees and former employees from communicating with the Commission concerning possible securities law violations.” The Risk Alert stated that the SEC staff is citing deficiencies and making referrals to the Division of Enforcement where appropriate.