_________________________________________________________________________ 

UNITED STATES OF AMERICA 

Before the 

SECURITIES AND EXCHANGE COMMISSION 

SECURITIES EXCHANGE ACT OF 1934 

Release No. 97529 / May 19, 2023 

WHISTLEBLOWER AWARD PROCEEDING 

File No. 2023-59 

_________________________________________________________________________ 

In the Matter of the Claim for an Award 

in connection with 

Notice of Covered Action 

Redacted Redacted

ORDER DETERMINING WHISTLEBLOWER AWARD CLAIM 

The Claims Review Staff (“CRS”) issued a Preliminary Determination recommending the 

Redacted

denial of the whistleblower award claim submitted by (“Claimant”) in connection 

with the above-referenced covered action (the “Covered Action”). Claimant filed a timely 

response contesting the preliminary denial. For the reasons discussed below, Claimant’s award 

claim is denied. 

I. Background

A. The Covered Action

On 

Redacted Redacted

the Commission filed settled administrative and cease-and-desist ***

proceedings against (the “Company”) and former Company 

executives (together with the Company, the “Respondents”). The Commission ordered that the 

Company cease and desist from committing or causing any violations and any future violations

 The Commission charged 

Redacted Redacted

certain individual Respondents with violations or aiding and abetting violations of those 

Redacted

provisions as well as violations of Exchange Act Rules 

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Redacted

. The Respondents consented to more than 

Redacted

 in monetary 

sanctions, among other relief. 

On 

Redacted

, the Office of the Whistleblower (“OWB”) posted a Notice for the 

Covered Action on the Commission’s public website inviting claimants to submit whistleblower 

award applications within 90 days. Claimant filed a timely whistleblower award claim. 

B. The Preliminary Determination

The CRS issued a Preliminary Determination recommending that Claimant’s claim be 

within the meaning of Exchange Act Rule 21F-4(a). 

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denied on the ground that Claimant did not provide information to the Commission voluntarily 

Redacted ***

In the , the Company’s 

 in response to an inquiry from the Commission’s Division 

Redacted Redacted

of Enforcement (“Enforcement”), identified Claimant as an individual likely to have information 

Redacted Redacted Redacted Redacted

about certain of the Company’s for its contract with

 (the “Contract”). Enforcement staff contacted counsel 

in to schedule an interview with Claimant. Counsel for the 

responded that the Company was arranging for individual representation for Claimant and once 

Redacted

retained Claimant’s counsel would reach out to Enforcement staff directly. In , 

individual counsel for Claimant contacted Enforcement staff. The CRS preliminarily determined 

to recommend that Claimant’s subsequent provision of information to the Commission be 

Redacted

deemed involuntary because Enforcement staff’s request to speak with Claimant regarding

 relating to the Contract preceded Claimant’s (or his/her counsel’s) first 

communications to staff in connection with this matter. The CRS reasoned that because the 

Commission treats a request to an employer seeking information from a particular individual as a 

request directed to the employee for purposes of Rule 21F-4(a), Claimant’s information here was 

not provided voluntarily. The CRS also preliminarily determined to recommend that the 

Commission find that staff’s request to interview Claimant related to the same subject matter as 

Claimant’s later submission of information. 

C. Claimant’s Response to the Preliminary Determination

Claimant submitted a timely written response (the “Response”) contesting the 

Preliminary Determination.1 Claimant principally argues that Claimant satisfied the 

voluntariness requirement because at the time received a request from 

Enforcement staff to speak with Claimant about the Contract, Claimant and 

Redacted Redacted

was therefore adverse to the Company. Claimant also argues that even if his/her initial 

submission of information was not voluntary, he/she also voluntarily submitted information on 

“bigger issues” that caused Enforcement staff to expand its investigation. Finally, Claimant 

contends that even if he/she did not meet the standard for voluntariness, the Commission should 

See Exchange Act Rule (hereafter “Rule”) 21F-10(e), 17 C.F.R. § 240.21F-10(e). 

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use its authority under Section 36(a) of the Exchange Act to exempt him/her from compliance 

with the voluntariness requirement and grant him/her an award.2 

II. Analysis 

A. Claimant’s Submission Was Not Voluntary 

1. The Commission Made a Request “Directed to” Claimant before 

Claimant Contacted the Commission with His/Her Information 

To qualify for an award under Section 21F of the Exchange Act, an individual must 

voluntarily provide the Commission with original information that leads to the successful 

enforcement by the Commission of a Federal court or administrative action in which the 

Commission obtains monetary sanctions totaling more than $1,000,000.3 The “submission of 

information is made voluntarily ... if [a whistleblower] provide[s the] submission before a 

request, inquiry, or demand that relates to the subject matter of [the] submission is directed to 

[the whistleblower] or anyone representing [the whistleblower] (such as an attorney) ... [b]y 

[inter alia] the Commission.”4 “[W]e treat a request to an employer specifically seeking an 

interview of, or other information from a particular employee as ‘directed to’ that employee or 

the employee's representative for purposes of Rule 21F-4(a)(1).”5 

There is no dispute here that Enforcement staff told counsel in 

that they wished to speak with Claimant about the Contract. And there is no dispute that

 counsel communicated this request to Claimant’s counsel, and only then did 

Claimant’s counsel reach out to the Commission. Claimant argues, however, that when the 

Company reached out to his/her counsel, he/she was an employee in name only, as he/she 

. Although the Company 

Redacted Redacted Redacted ***

***

***

continued to pay him/her, Claimant says that we should take into account that the Company was 

“adverse” to him/her. 

Claimant alleges that the Preliminary Determination was “procedurally deficient” because, among other 

things, the CRS allegedly acted improperly by relying upon a staff declaration that was signed after issuance of the 

Preliminary Determination. The unsigned and signed versions of the declaration are identical except for the 

signature and markings such as “draft” and “privileged” such that the information relied upon by the CRS in its 

Preliminary Determination was not affected by the signature being affixed after the CRS met to approve the 

Preliminary Determination. See Order Determining Whistleblower Award Claims, Exchange Act Release No. 96669 

at 5 n.13 (Jan. 17, 2023); Order Determining Whistleblower Award Claims, Exchange Act Release No. 94743 at 2 

n.6 (Apr. 18, 2022). Claimant’s other complaints of procedural deficiency amount to contentions that the CRS did 

not take his/her arguments seriously. On the contrary, the CRS carefully considered Claimant’s arguments and 

requested a supplemental declaration from Claimant’s counsel to clarify an issue related to Claimant’s Response. 

3 Rule 21F-3(a), 17 C.F.R. § 240.21F-3(a). 

4 Rule 21F-4(a)(1), 17 C.F.R. § 240.21F-4(a)(1). 

5 Order Determining Whistleblower Claim, Exchange Act Release No. 86010 (June 3, 2019). 

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We find this argument unpersuasive. To the extent that Claimant is suggesting that the 

Company did not communicate with Claimant’s counsel, that suggestion is not borne out by the 

evidence. Claimant’s counsel declared that he was aware at the time Claimant retained him that 

Enforcement staff already had made a request through 

Redacted

 to speak with 

Claimant. Moreover, antagonism between the employer and employee is irrelevant to the inquiry 

of whether there was a request for information “directed to” that employee. Accordingly, we find 

that Claimant’s submission of information was not “voluntary” under Rule 21F-4(a). 

Our finding here is consistent with the purpose behind the voluntariness requirement. In 

the Adopting Release for the Whistleblower Rules, we expressed a concern with an employee 

front-running an investigation he/she is already aware of by reaching out to the Commission only 

after the Commission had made its interest in the employee’s information known through a 

request to the employer directed to the employee.

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 When Claimant’s counsel first contacted the 

Commission on Claimant’s behalf, Claimant’s counsel was aware through communications with 

Claimant’s employer of Enforcement staff’s request to speak with Claimant, and Claimant’s 

provision of information therefore was not voluntary. Deeming such a submission voluntary 

would do little to incentivize potential whistleblowers to proactively provide information to the 

Commission. 

2. Claimant Did Not Submit Other Unrelated Information on a

Voluntary Basis

Claimant argues that even if the information he/she provided in response to Enforcement 

staff’s questions during his/her interviews was not voluntary, he/she “affirmatively and 

voluntarily”

Redacted

 provided new information that alerted Enforcement staff to “bigger issues” with ***

for the Contract. We disagree. 

Once a putative whistleblower’s initial submission has been deemed not voluntary, a 

future submission by the same individual will not be deemed voluntary merely because it 

provides new information or expands the scope of an investigation. As we have explained, 

The determination of whether an inquiry “relates to the subject matter” of a 

whistleblower’s submission will depend on the nature and scope of the inquiry 

and on the facts and circumstances of each case. Generally speaking, however, we 

will consider this test to be met—and therefore the whistleblower’s submission 

not to be “voluntary”—even if the submission provides more information than 

was specifically requested, if it only describes additional instances of the same or 

similar conduct, provides additional details, or describes other conduct that is 

closely related as part of a single scheme. For example, if our staff sends an 

individual an investigative request relating to a possible fraudulent accounting 

Whistleblower Rules Adopting Release (Aug. 12, 2011) at 32 (“We believe that this approach strikes an 

appropriate balance between, on the one hand, permitting any submission to be considered ‘voluntary’ as long as it 

is not compelled, and, on the other hand, precluding a submission from being treated as ‘voluntary’ whenever a 

whistleblower may have become ‘aware of’ an investigation or other inquiry covered by the rule, regardless of 

whether the relevant authority contacted the whistleblower for information.”). 

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practice, we would ordinarily not expect to treat as “voluntary” for purposes of 

Rule 21F-4(a) a subsequent whistleblower submission from the same individual 

that describes additional instances of the same practice, or a different but related 

practice as part of an overall earnings manipulation scheme. However, the 

individual could still make a “voluntary” submission that described other, 

unrelated violations (e.g., Foreign Corrupt Practices Act violations).7 

Claimant contends that he/she alerted Enforcement staff to “bigger issues” with the Company’s 

Contract. Claimant’s Response does not specify exactly what he/she means by “bigger issues.” 

To the extent that he/she means that he/she provided information about the overarching issues 

concerning how the Company’s failure to the Contract was 

, we credit the declaration and supplemental declaration of the Enforcement 

Redacted Redacted

declarant. Enforcement staff explained that the investigative team had identified the core issues 

with this , including the decision to base 

, before Claimant provided any information to staff. Any 

Redacted Redacted Redacted

new information that Claimant provided concerned issues Enforcement staff already was 

“bigger issues” with the Contract, the contours of the Investigation already had been established 

investigating. And to the extent that Claimant contends that 

alerted Enforcement staff to 

Redacted Redacted

by the time . Claimant’s attempts to 

Redacted

raise “bigger issues” about the Contract with Enforcement staff amounted to “provid[ing] 

additional details” or “describ[ing] other conduct that is closely related as part of a single 

scheme” rather than an unrelated securities-law violation. 

Claimant’s Response also appears to include within the “bigger issues” he/she raised 

his/her description of a 

. Providing new information to staff is not enough for a claimant to establish 

voluntariness in these circumstances. The illustrative example in the Adopting Release of “a 

Redacted Redacted

different but related practice as part of an overall earnings manipulation scheme” is directly on 

point. As Enforcement staff explained, Claimant’s information fit in more generally with what 

staff had uncovered about the Company’s failure to 

. Staff viewed Claimant’s information 

as evidencing a specific illustration of the Company’s broader to conceal 

the effects of the problems with the Contract and not as a separate fraud. The 

was one chapter in a larger story—a story staff had been 

Redacted Redacted Redacted Redacted Redacted

uncovering long before they spoke to Claimant. 

We conclude that Claimant did not provide information sufficiently unrelated to the 

subject matter of Enforcement staff’s inquiries to him/her for him/her to satisfy the voluntariness 

requirement. 

Id. at 34-35. 

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attention finds little support in the record. Claimant waited more than two years to bring the 

Redacted

B. A Section 36(a) Exemption Is Not Appropriate Here

Section 36(a) of the Exchange Act grants the Commission the authority in certain 

circumstances to “exempt any person . . . from any provision or provisions of this title or of any 

rule or regulation thereunder, to the extent that such exemption is necessary or appropriate in the 

public interest, and is consistent with the protection of investors.” In whistleblower matters, the 

Commission has found that the public interest warranted an exemption from a rule requirement 

in a limited number of cases where the unique circumstances of the particular matter raised 

considerations substantially different from those which had been considered at the time the rules 

were adopted, and a strict application of the rules would result in undue hardship, unfairness, or 

inequity.8

Claimant has not identified “unique circumstances” here that would warrant a Section 

36(a) exemption from the voluntariness requirement. Rather, the Commission specifically 

considered in its Adopting Release the fact pattern of an employee first reporting to the 

Commission after his/her employer received a request for information targeting the employee. 

Claimant’s contention that he/she “affirmatively” brought information to the Commission’s 

to the attention of the Commission. And Claimant says that 

he/she did not decide whether to provide information to the Commission until after he/she 

Redacted

became aware of Enforcement’s request for his testimony and had a chance to discuss 

issues with his/her counsel.9

 Equitable factors do not support exemptive relief for 

Claimant under Section 36(a). 

Claimant cites two cases in which we have granted Section 36(a) exemptions from the 

voluntariness requirement, but both are distinguishable from the facts here. In Order 

Determining Whistleblower Award, Exchange Act Release No. 84046 (Sept. 6, 2018), the 

claimant did not know the information that later formed the basis for his/her tip to the 

Commission at the time he/she was interviewed by a federal agency, and when he/she later 

learned that information, he/she promptly reported it to the agency. In addition, we determined 

that the waiver would help minimize the hardship he/she encountered by reporting. Here, 

Claimant does not point to any information he/she learned after his/her interview that was 

provided to the Commission. 

8 Order Determining Whistleblower Award Claim, Release No. 34-97450, at 6 (May 8, 2023); see also Order 

Determining Whistleblower Award Claims, Release No. 34-90721 (Dec. 18, 2020) (claimant’s counsel used 

information from claimant to submit application as whistleblower on behalf of themselves); Order Determining 

Whistleblower Award Claims, Release No. 34-90580 (Dec. 7, 2020) (counsel misunderstood communications from 

staff about whether claimant met procedural requirements for participating in whistleblower program); Order 

Determining Whistleblower Award Claim, Release No. 34-86010 (June 3, 2019) (see below); Order Determining 

Whistleblower Award Claims, Release No. 34-84046 (Sept. 6, 2018) (see below). 

9 Claimant says in his/her Response that he/she needed to consult with his/her counsel 

Redacted

“regarding whether to 

reach out to the SEC to provide [his/her] observations on the at [the Company]. It was 

certainly not a given that [he/she] would do so. . . .” 

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In Order Determining Whistleblower Claim, Exchange Act Release No. 72727 (July 31, 

2014), on which Claimant also relies, the Commission found the claimant’s submission not to 

have been voluntary because a self-regulatory organization (“SRO”) contacted him/her before 

he/she contacted any relevant agency about the securities-law violation. But the SRO’s 

investigation was initiated based on a tip from another party that specifically identified the 

whistleblower’s efforts to raise the issue internally. The whistleblower was also misled that 

certain materials he/she had prepared were provided to the SRO, and the whistleblower 

continued to try to remediate the situation after the SRO investigation was closed. No “highly 

unusual circumstances” of this magnitude are present here.10 

Although Claimant does not rely on Order Determining Whistleblower Claim, Exchange 

Act Release No. 86010 (June 3, 2019), that order also does not support an exemption here. 

There, another authority directed a request for information to relevant employees of a firm who 

had information about an issue, which included two claimants. The two claimants were not told 

about the other authority’s request when it was made and did not learn of the existence of the 

other authority’s investigation until several months after they reported their information to the 

Commission. The claimants left the firm prior to learning about the other authority’s 

investigation and reported the issue to the Commission. The two claimants’ own remedial efforts 

had indirectly prompted the other agency to open the investigation resulting in the request for 

information. Although we determined that the claimants’ submission was not voluntary, it was 

appropriate under those facts and circumstances to exempt the claimants from the voluntariness 

requirement under Section 36(a). Here, Claimant’s counsel admits that he knew that 

Enforcement staff had requested to interview Claimant prior to Claimant’s counsel contacting 

staff and Claimant providing information to the Commission. 

In short, voluntariness is a critical component of the Commission’s whistleblower award 

program. Nothing prevented Claimant from reporting his/her information to the Commission 

prior to Enforcement’s request to interview him/her. To grant exemptive relief from the 

voluntariness requirement in these circumstances would undermine the Commission’s position 

Although not a basis for our denial of Claimant’s claim here, we observe that Claimant did not initially 

comply with the TCR-submission requirement and is not eligible for a waiver of the requirement under Rule 21F- Redacted

9(e).

Redacted Redacted

 Claimant was interviewed by Enforcement staff on , but did not submit a TCR until 

Claimant contends that he/she 

raised broad concerns about the Company’s the Contract. According to Claimant, 

“ counsel in an effort to conceal the real 

Under Rule 21F-9(e), a claimant’s initial noncompliance with the TCR-submission requirement may be 

waived if he/she complied with the TCR-submission requirements within 30 days of learning of the requirements or 

retaining counsel to submit information to the Commission, whichever occurred first. Claimant retained counsel for 

Redacted

the purpose of submitting information to the Commission no later than but did not submit a TCR until 

Redacted Redacted Redacted

four months later. Thus, even if Claimant submitted his/her information voluntarily, only original information 

Redacted

, could be the basis for an award. 

Redacted Redacted Redacted ***

***

Claimant submitted on or after 

at the center of the . . . Contract.” Claimant forgot about the existence of these but submitted 

***

a TCR soon after the came to light as part of staff’s investigative efforts. Claimant implies that these 

Redacted

circumstances justify his/her failure to timely submit a TCR. But Claimant states that by the time the 

came to light, he/she had been providing information to Enforcement staff for months, during which time ***

he/she was represented by counsel for the purpose of submitting information to the Commission. When the 

came to light has no bearing on whether Claimant is eligible for a Rule 21F-9(e) waiver. 

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that “a whistleblower award should not be available to an individual who makes a submission 

after first being ... requested to provide information by the Commission staff ....”11

III. Conclusion

Accordingly, it is hereby ORDERED that the whistleblower award application of

Claimant in connection with the Covered Action be, and it hereby is, denied. 

By the Commission. 

J. Matthew DeLesDernier

Deputy Secretary 

Whistleblower Rules Adopting Release (Aug. 12, 2011) at 30. 

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