United States: CFTC Proposes Amendments To Whistleblower Awards Process And Anti-Retaliation Authority

Last Updated: September 8 2016
Article by Lewis M. Csedrik, Levi McAllister and Pamela C. Tsang

The amendments would make the CFTC's whistleblower awards process more uniform with the SEC's program and would enable the CFTC to bring enforcement actions against employers that retaliate against whistleblowers.

On August 30, the Commodity Futures Trading Commission (CFTC or Commission) requested comments on proposed amendments to its whistleblower awards process and anti-retaliation enforcement authority. The proposed amendments are intended to enhance the transparency of the award evaluation and review process and to clarify CFTC staff authority to administer the whistleblower program. The proposed amendments also reinterpret the CFTC's authority to take enforcement action where whistleblowers are retaliated against.


The CFTC first established its whistleblower program in 2011. Under the program, whistleblowers who voluntarily provide the CFTC with original information about a violation of the Commodity Exchange Act1 (CEA or the Act) will receive a monetary award if the information provided leads to the successful enforcement of a CFTC action and results in monetary sanctions of more than $1 million (Covered Action), or the successful enforcement of a related action. Awards range between 10% and 30% of the monetary sanctions collected in a Covered Action or related action, and are determined by, among other things, the significance of the information provided and the degree of the whistleblower's assistance.

Although the CFTC established the whistleblower program five years ago, only about 40 awards have been sought by claimants since the program's inception (fewer than five awards have been granted). Until now, the CFTC has not considered its enforcement authority as covering retaliation against whistleblowers. The proposed changes mark a renewed emphasis on the CFTC's whistleblower program and suggest that the whistleblower program will play a more prominent role in the CFTC's future enforcement efforts. Notably, the CFTC intends to assign responsibility over the whistleblower program to the Director of the Division of Enforcement.

Proposed Amendments to Whistleblower Awards Process

The proposed amendments to the CFTC's whistleblower awards process are based on the CFTC's experience over the last five years, as well as the experience of the US Securities and Exchange Commission (SEC), in administering their whistleblower programs. Among other things, the proposed changes will make it easier for whistleblowers to seek awards and provide them more opportunity to participate in the awards process. One proposed change would extend the amount of time a claimant has to file the requisite Form TCR (Tip, Complaint, or Referral) from 120 days to 180 days in order to seek an award. Other changes (many of which are modeled after the SEC's whistleblower program) would do the following:

  • Replace the Whistleblower Awards Determination Panel with a review process handled by Claims Review Staff and the Whistleblower Office, Division of Enforcement.
  • Assign primary responsibility over handling facially ineligible claims to the Whistleblower Office to reduce the administrative burden on the CFTC.
  • Allow the Whistleblower Office to require additional information, explanation, or assistance from a claimant.
  • Require a Preliminary Determination on claims and allow claimants to request the materials on which determinations are based and/or submit objections.
  • Outline the process and timing of a claimant's challenge to a Preliminary Determination denying an award or the amount of the award.

The proposed amendments also would allow a claimant who is eligible to receive an award in a covered judicial or administrative action to receive an additional award based on the monetary sanctions collected in a related action. The CFTC considers a "related action" to be a judicial or administrative proceeding brought by certain entities (e.g., US Department of Justice, a registered entity, or futures organization) that is based on the same information the whistleblower voluntarily provided that led to the original successful enforcement. Notwithstanding this, the amendments would preclude a claimant from "double dipping" by receiving an award for a related action if the claimant already received an award from the SEC for the "same action." The proposed rules do not define or otherwise specify what constitutes a "same action."

Whistleblower Protection and Anti-Retaliation Enforcement Authority

The CFTC also proposes to set aside its 2011 interpretation of whether it possesses the authority to take enforcement actions against employers that retaliate against whistleblowers in violation of the CEA. Citing to the private right of action for whistleblowers to bring retaliation claims under Section 23(h)(1) of the Act, the Commission previously held that it lacked the statutory authority to conclude that an entity found to have retaliated against a whistleblower in violation of the Act could be subject to a separate enforcement action by the CFTC. The SEC reached the opposite conclusion with respect to its enforcement authority, and the CFTC seeks to remedy this inconsistency.

As explained by the CFTC, while Section 23(h)(1) allows whistleblowers to bring retaliation claims before federal district courts, nothing in that section precludes the Commission from bringing related enforcement actions where retaliation is found to occur. Notwithstanding this, the Commission stops short of explaining how it will exercise its authority where retaliation occurs, including whether it will rely on the findings made by district courts or will make its own retaliation findings, including in situations where there is no private claim filed in federal district court.

Possible Impact of Proposed Amendments

The CFTC's proposed amendments to the whistleblower program indicate that the CFTC will be devoting more resources and attention to its whistleblower awards process and the protection of whistleblowers. This increased focus could have the effect of increasing the number of awards claims and/or retaliation claims brought by covered employees. Regardless, it will require employers subject to the CEA to ensure that their compliance programs and related policies are up to date and consistent with the CFTC's new regulations, any revised guidance, and industry best practices, including with respect to detecting and preventing retaliation.

Comments on the CFTC's proposed amendments must be filed by September 29, 2016.


1 7 U.S.C. § 26.

This article is provided as a general informational service and it should not be construed as imparting legal advice on any specific matter.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Cadwalader, Wickersham & Taft LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Cadwalader, Wickersham & Taft LLP
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions