White-Collar Crime Episode 2: How the SEC Handles Whistleblowers

Published on
November 26th, 2020
Duration
51 minutes

White-Collar Crime Episode 1: Why White Collar Criminals Get Away With It


White-Collar Crime Episode 2: How the SEC Handles Whistleblowers

The Big Picture ·
Featuring Jordan A. Thomas and Quinton Mathews

Published on: November 26th, 2020 • Duration: 51 minutes

In this second episode of Quinton Mathews series of interviews exploring the issue of white-collar crime’s effects on markets and society, he sits down with former SEC prosecutor Jordan A. Thomas, now chair of the whistleblower representation practice and one the main architects of the SEC’s whistleblower program. Together they examine how the SEC operates with a specific focus on the whistleblower program, the merits and shortcomings of this program, and Thomas’s current legal practice helping whistleblowers get their just rewards. In this second episode Mathews shifts his focus from identifying the problem of white-collar crime to examining what is already being done to fix the problem and potential ways to improve our efforts. Thomas argues one of the best ways for regulators like the SEC to manage the near impossible task of stamping out white-collar crime is to receive tips from whistleblowers. Without these tips, there often isn’t enough evidence to open investigations until well after the house of cards has come tumbling down and shareholders have already been left out to dry. Since it began in 2012, the SEC whistleblower program has resulted in the uncovering of hundreds of instances of potential wrongdoing and billions of dollars in sanctions on companies. Filmed on November 2, 2020. Key Learnings: The SEC whistleblower program has been successful in helping regulators uncover wrongdoing, but it alone is clearly not enough of a deterrent. Changes to standards have recently made it harder for short sellers to win claims if only supplying public information. Corporate insiders are much more likely to find success through this program.

Comments

Transcript

  • NI
    Nate I.
    29 December 2020 @ 21:04
    Roughly 4200 employees at the SEC and they "don't have the resources to ....". While Jordan is right about that, let's examine why he's right and how it's possible that small army of SEC regulatory staff isn't enough. I could write a book about this, but I'll share a little of what I know here having invested 7 years of my life toiling in vain inside a regulatory agency. First, it's important for people to understand that 99% of regulatory agencies feed from the trough of the industries they regulate via fines, license fees, surcharges, etc. Accordingly, these agencies are strongly motivated to keep these businesses in business. In fact, if you really want to get cynical about it, they exist mainly as a mote to prevent competition but at a minimum it's indisputable that their salaries depend on keeping the businesses they regulate in business. Rather than prosecute serious violations - felonies if you will - and put the corporate criminals in jail where they belong, regulatory agencies prefer to collect a river of fines. These fines offer very little deterrence, but they keep the money flowing and everybody is fat and happy. The businesses who pay the regulators stay in business, pay the fines as a cost of doing business and consumer or investor harm be damned. Only in the most egregious cases with massive public outcry (like Enron) are the regulators pressured to do anything. In general, the smaller the fish and the more trivial the violation, the better. The little fish don't fight. They just settle and pay. This also allows the regulators to run to Congress or a State legislature and thump their chest each year about how many more violations they "prosecuted" (translation settled) versus the prior year and how much they collected in fines while conveniently ignoring the fact that their efficacy is asymptotically approaching zero (Elon Musk is right about one thing - there is no reason to respect this nonsense). In fact, when they run to Congress or a State Legislature crowing about how many more violations they "prosecuted" (aka settled) each year, that should be the biggest red flag of them all. Look everyone - crime is soaring!! Aren't we doing a wonderful job? It's prima facie reductio ad absurdum. Unfortunately, our politicians buy this claptrap hook, line, and sinker. Politicians are also beholden to industry so they give the regulators a pat on the head and send them off to repeat the insanity for another year. Indeed, pursuing a zillion misdemeanors takes a lot of people and the agency collects a lot of money, yet it accomplishes virtually nothing other than hassling small fish mainly over errors/omissions and paying the salaries of ever larger army of regulators. It also makes a nice competitive mote so industry isn't exactly opposed to this. In fact, despite decrying regulation, they lobby for most of it and happily raise consumer prices to pay for it. In my personal experience, I had cases stacked to low earth orbit and a boss literally asking me 5 times a day why they weren't done. The more trivial violations I could find and transfer to legal staff, the happier they were. More fines could be collected and more chests could be thumped at the legislative review. Meanwhile, the lunacy didn't leave me any time to pursue the very bad ones. The very bad ones were time consuming and nobody profits. Circling back to the original question, that's how 4200 people becomes insufficient resources. It’s a matter of what is dictating priorities. The measure of merit for these agencies needs to be their efficacy as measured by the level of crime and they need to be completely decoupled financially from the industries they regulate. Many other reforms are needed, but that would be a very good first step. The current situation is analogous to paying the police with a cut from pawn shop sales. Ask yourself if burglaries go up or down in that scenario?
  • BM
    Brook M.
    24 December 2020 @ 05:31
    Super interesting interview which presented excellent information on a program with which I had very little familiarity. Excellent questions and a very articulate guest.
  • SP
    Sat P.
    26 November 2020 @ 10:30
    This was an excellent interview. It is great to learn that whistleblowing programs are and have become more effective, even through there is a long way to go. There were some great book recommendations at the end, I’m looking forward to reading Tom Mueller’s book ‘Crisis of Conscience’.