This previous post highlighted a whistleblower’s attempt (referred to as John Doe) to force the SEC to speed its award decision making process in connection with the $519 million Foreign Corrupt Practices Act enforcement against Teva Pharmaceutical in late 2016. (See here for the prior post).
Recently, the SEC filed this response brief stating that the SEC’s Office of the Whistleblower (OWB) is reviewing Doe’s application, but a preliminary determination has not yet been issued. Using words such as complex, rigorous, time consuming and labor intensive, the SEC argues that making a determination on Doe’s claim is not a simple task particularly given that the SEC “must balance its desire to process award claims within a reasonable period with the need to devote resources to other important Commission responsibilities.”
In pertinent part, the response brief states:
“Doe argues that the Commission has unduly delayed adjudicating his whistleblower award application and asks for an order directing the Commission to issue a preliminary determination regarding his claim within 60 days and a final order within six months. Doe’s Petition is predicated primarily upon his assertion that adjudicating his claim is a “simple task” that requires little more than “a conversation” between SEC claim reviewers and investigative staff and review of a “confined record entirely within the agency’s knowledge.” Doe claims there is “no reason to believe that [his] claim for a whistleblower award is substantially more complex” than “simple cases with one whistleblower” that the SEC resolved more quickly.
Doe greatly misapprehends the work, effort, and time involved in reviewing whistleblower claims, including his. Doe overlooks the substantial complexities involved in adjudicating claims regarding the Teva matter because, among other things, there are six claimants in this matter (not only Doe as he apparently presumes) and the case involves parallel SEC and DOJ cases, requiring information gathering from the DOJ and other authorities. And Doe ignores that the SEC is processing a voluminous number of other whistleblower applications that require the attention of the Commission in addition to his claim.”
Regarding the other whistleblower claims in connection with the Teva FCPA matter, the SEC states:
“Doe suggests that he is the only claimant for NoCA 2017-5 and that the Commission need only assess the information he provided regarding the Teva investigations to reach a determination on his application. Doe is incorrect. There are six claimants whose claims must be assessed to determine their absolute and relative entitlements, if any, to an award.
Doe’s claims. Doe submitted 700+ pages in support of his application, and asserts that the “record establishes that the SEC and DOJ acted on Petitioner’s tip and used the information supplied to successfully resolve their enforcement actions against Teva.” Teva paid nearly $520 million to resolve FCPA claims relating to improper payments in Russia, Ukraine, and Mexico, while Doe’s tips focused on payments in Argentina that were not encompassed in the Commission’s settlement with Teva. Doe also apparently presumes that the SEC staff to whom he spoke in 2011 “eventually transferred the case to the SEC’s Miami office,” which handled the Teva investigation. But Doe is not privy to SEC internal actions, other tips that the Commission may have received or the degree to which those tips may have led to the Commission’s investigation and/or prosecution of Teva. Finally, the fact that a whistleblower provides useful assistance at some point during the course of an investigation does not necessarily mean that he provided “original information” that “led to the successful enforcement” action, and therefore may be eligible for an award.
There are five other claimants who believe that they are entitled to whistleblower awards because of the testimony and documents they provided to the SEC, DOJ, and/or other authorities. While the merits of any claimant’s application are beyond the scope of the Petition, the bases for their claims are very briefly described to provide a sense of the competing claims that OWB reviewers must evaluate.
Claimant 2 contends that he or she provided the information that led the SEC to open its investigation. (This claim directly contradicts Doe’s claim and the relative merits of Claimant 2’s assertions must be assessed.) Claimant 2 claims that he or she met repeatedly with the SEC and DOJ to provide testimony and documents that were central to the charges against Teva. Claimant 2’s counsel, like Doe’s counsel, filed a detailed whistleblower application with extensive documentation purportedly buttressing his or her entitlement to an award.
Claimants 3 and 4
Claimants 3 and 4 submitted a joint application. They claim that they provided multiple tips to the SEC, DOJ, and local authorities concerning improper payments in Romania. They claim that the information and documents they provided led to law enforcement inquiries and press reports about these payments. They contend that the inquiry in Romania, at least in part, led to Teva’s willingness to pay such a large monetary sanction. Their counsel, like Doe’s counsel, filed a detailed whistleblower application with extensive documentation purportedly buttressing their entitlement to an award.
Claimant 5 alleges that he or she provided extensive information and documents showing misconduct by Teva, including misconduct in Argentina. Therefore, to the extent information concerning misconduct in Argentina is relevant to the ultimate recovery, the Commission must weigh the contributions of Doe and Claimant 5. Claimant 5 claims that he or she met with SEC and DOJ investigators on multiple occasions and his or her application includes detailed documentation of the assistance he or she purportedly provided to the authorities.
Claimant 6 contends that he or she reported various improper sales practices to the SEC, including information about Argentina, requiring an analysis of competing claims of at least three claimants (Doe and Claimants 5 and 6). Claimant 6 contends that he or she met with, and provided documents to, the SEC and DOJ to assist in their investigations. Claimant 6’s award application highlights the various documents that he or she purportedly provided to authorities in support of their investigations.”
Regardless of the merits of Doe’s claim (or that of the other claimants) the SEC’s response brief makes for an interesting read regarding the process of assessing of a whistleblower claim.
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