CFTC Announces Stronger Anti-Retaliation Protections for Whistleblowers and Enhanced Award Claims Review Process

Washington, DC –  A unanimous vote by the U.S. Commodity Futures Trading Commission (CFTC) to amend Whistleblower Rules has resulted in, among other things, stronger anti-retaliation protections for whistleblowers as well as enhanced processes for reviewing whistleblower claims.

A reinterpretation of the CFTC’s anti-retaliation authority under the Commodity Exchange Act (CEA) concludes that the CFTC or the whistleblower may now seek legal remedies against an employer for retaliation against a whistleblower. Steps taken by an employer that deliberately restricts an employee from direct communication with the CFTC pertaining to a possible violation of the CEA by way of a confidentiality, pre-dispute arbitration or similar agreement are strictly prohibited by the amendment.

In a recent press release, Director of the Division of Enforcement, James McDonald said “The Whistleblower Program is an integral part of the Division’s efforts to identify and prosecute unlawful conduct. The Commission’s approval of these rules today will further strengthen and enhance our efforts to protect customers and promote market integrity.”

While Part 165 of CFTC’s Regulations outlines the agency’s basic framework of the Whistleblower Program the basic framework, the new amendments not only strengthen anti-retaliation protections but will also add efficiency and transparency to the process of determining whistleblower award claims. Furthermore, it will also harmonize the CFTC’s rules with those of the  of the agency’s Whistleblower Program. In addition to strengthening anti-retaliation protections, the new amendments will add the U.S. Securities and Exchange Commission’s whistleblower program.

Additional changes as a result of the amendments include replacing the Whistleblower Award Determination Panel with a Claims Review Staff which will consider and issue Preliminary Determination in the granting and denial of claims. As such, whistleblowers will have an opportunity to view and contest the Preliminary Determination prior to  the CFTC issuing a Final Determination.

Other key changes that have occurred due to the amendments are whistleblower eligibility requirements also make changes to other key areas, such as whistleblower eligibility requirements and authorizing the Whistleblower office to handle a handle facially ineligible award claims that do not pertain to a Notice of Covered Action, a final judgment in a Related Action, or a previously filed Form TCR (Tip, Complaint or Referral).