United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 13, 2023 Decided June 21, 2024

Reissued August 16, 2024

No. 23-1044

JOHN DOE,

PETITIONER

v.

SECURITIES AND EXCHANGE COMMISSION,

RESPONDENT

On Petition for Review of an Order 

of the Securities and Exchange Commission

Thomas Cummins, pro hac vice, argued the cause for 

petitioner. On the briefs was Max Maccoby.

William K. Shirey, Counsel to the Solicitor, U.S. Securities 

and Exchange Commission, argued the cause for respondent. 

With him on the brief were Megan Barbero, General Counsel, 

and Michael A. Conley, Solicitor.

Before: HENDERSON, WILKINS, and PAN, Circuit Judges.

Opinion for the Court filed by Circuit Judge WILKINS.
2

WILKINS, Circuit Judge: Suspecting his client of 

committing a crime, an attorney blows the whistle, intending to 

subject his client to a possible investigation and enforcement 

action by the Securities and Exchange Commission (the 

“Commission”). Can such an attorney then collect a 

whistleblower award from the Commission on the grounds that 

the disclosure of his client’s information was reasonably 

necessary to serve his client’s interests? We agree with the 

Commission that the answer to that question is no.

Under the Commission’s regulations implementing its 

whistleblower award program, an attorney may not receive a 

whistleblower award for disclosing information obtained 

during the representation of a client unless the attorney’s 

disclosure was permitted by the applicable state bar rules or the 

Commission’s attorney conduct regulations. See 17 C.F.R. 

§ 240.21F-4(b)(4)(ii). Petitioner John Doe, an attorney, filed a 

whistleblower tip with the Commission, disclosing information 

obtained while representing a client. Doe then filed an 

application for a whistleblower award. Doe argued that his tip 

was permitted by an applicable state bar rule that authorizes the 

disclosure of “confidential information” to the extent that the 

attorney “reasonably believes necessary” to “serve the client’s 

interest.” Doe also stated repeatedly before the Commission, 

however, that he had suspected his client of wrongdoing and 

had intended for his whistleblower tip to result in his client 

being investigated by the Commission. 

The Commission denied Doe’s application, reasoning that 

Doe’s disclosure of his client’s information was not permitted 

by any applicable state bar rule. We affirm the Commission’s 

sound determination that Doe’s disclosure of his client’s 

information was not reasonably necessary to serve his client’s 
3

interest because the record shows that, when he filed his tip, 

Doe suspected his client of wrongdoing and intended to subject 

his own client to an investigation by the Commission.

I. 

A.

The Commission’s whistleblower award program was 

created when Congress passed the Dodd-Frank Act, which 

amended the Securities Exchange Act of 1934 (the “Exchange 

Act”) to create a range of new incentives and protections for 

whistleblowers. See Pub. L. No. 111-203, § 922, 124 Stat. 

1376 (2010) (codified at 15 U.S.C. § 78u-6); see also Doe v. 

SEC, 28 F.4th 1306, 1311–12 (D.C. Cir. 2022). The Exchange 

Act permits the Commission to provide monetary awards to 

“whistleblowers who voluntarily provided original information 

to the Commission that led to the successful enforcement” of a 

“covered judicial or administrative action” that resulted “in 

monetary sanctions exceeding $1,000,000.” 15 U.S.C. § 78u6(a)(1), (b)(1). “[O]riginal information” is information that, as 

relevant here, is “derived from the independent knowledge or 

analysis of a whistleblower.” Id. § 78u-6(a)(3)(A). 

In regulations implementing the whistleblower award 

program, the Commission has limited the circumstances under 

which an attorney may receive an award for reporting 

information that was gathered during the attorney’s 

representation of a client. See id. § 78u-6(j) (authorizing the 

Commission to “issue such rules and regulations as may be 

necessary or appropriate to implement” the whistleblower 

award program); see also 17 C.F.R. § 240.21F-4. Those 

regulations instruct whistleblowers that the Commission “will 

not consider information to be derived from [a 
4

whistleblower’s] independent knowledge or independent 

analysis”—that is, not “original information” within the 

meaning of the Exchange Act, see 15 U.S.C. § 78u6(a)(3)(A)—if the whistleblower

obtained the information in connection with the 

legal representation of a client on whose behalf 

[the whistleblower] . . . [is] providing services, 

and [the whistleblower] seek[s] to use the 

information to make a whistleblower 

submission for [the whistleblower’s] own 

benefit, unless disclosure would otherwise be 

permitted by [the Commission’s attorney 

conduct regulations], the applicable state 

attorney conduct rules, or otherwise.

17 C.F.R. § 240.21F-4(b)(4)(ii) (“Exchange Act Rule 21F4(b)(4)(ii)”). 

B. 

In 2018, the Commission brought an enforcement action 

against two individuals—Individual 1 and Individual 2—and 

corporate entities owned and controlled by those individuals 

(collectively, “Defendants”), alleging that they had engaged in 

securities fraud. The Commission explained that the 

Defendants had offered and sold the securities of a corporate 

entity. In doing so, the Defendants had misrepresented to 

investors in the securities offering that their money would be 

used to fund a particular project (the “Project”). Instead of 

spending investors’ funds on the Project, however, Individual 

1 and Individual 2 misappropriated a large portion of investors’ 

funds for their personal use.
5

The Commission’s preceding investigation was prompted, 

in part, by a whistleblower tip filed by Petitioner John Doe.1 

As the Defendants’ securities fraud scheme was unfolding, Doe 

was employed as in-house counsel at a company (the 

“Company”). The Company was owned and controlled by 

Individual 1 and provided assistance in connection with the 

Defendants’ securities offering. Doe worked on legal and 

administrative matters that were necessitated by the securities 

offering. 

During the course of his employment at the Company, Doe 

came across information that indicated that Individual 2 was 

misappropriating money invested in the securities offering. 

Individual 2 did not own, control, or play any formal role at the 

Company. 

Doe filed a whistleblower tip with the Commission. In his 

tip, Doe explained that Individual 2 was misappropriating 

investors’ funds for his personal use and that, as a result, the 

Project that the securities offering was supposed to fund would 

never be completed. Doe explained that the Commission could 

help “protect investors” by ensuring that the Project was 

completed or, at a minimum, that investors received their 

money back. J.A. 52. 

Although Doe’s whistleblower tip did not mention the 

Company or Individual 1, both were investigated by the 

Commission as a result of Doe’s tip and ultimately subject to 

enforcement actions. The Commission’s investigation and 

enforcement actions resulted in judgments against Individual 

1, Individual 2, the Company, and other corporate entities, 

1

 In addition to Doe’s tip, the Commission also received a referral 

from another government agency.
6

along with sanctions collectively totaling tens of millions of 

dollars.

C. 

Following the conclusion of enforcement proceedings, the 

Commission published a Notice of Covered Action inviting 

potential claimants to file an application for a whistleblower 

award. Doe timely filed an application. In his application, Doe 

stated that his tip had been intended not only to show Individual 

2’s “culpability” but also “to launch a wider investigation into 

the entire project.” J.A. 43. 

The Commission issued a preliminary determination 

recommending that Doe’s application be denied on the grounds 

that Doe had not submitted “original information.” Citing 

Exchange Act Rule 21F-4(b)(4)(ii), the Commission explained 

that because Doe had obtained the information in his tip during 

his legal representation of his client, the Company, Doe could 

not receive a whistleblower award unless his disclosure was 

permitted by the Commission’s attorney conduct regulations or 

by the “applicable state attorney conduct rules.” 17 C.F.R. 

§ 240.21F-4(b)(4)(ii). Doe’s disclosure, the Commission 

concluded, was not permitted by the applicable state attorney 

conduct rules: The Florida Rules of Professional Conduct 

applied based on the location of the conduct at issue, and no 

Florida Rule of Professional Conduct authorized Doe’s 

disclosure to the Commission.

Doe timely filed a request for reconsideration, primarily 

contending that two Florida Rules of Professional Conduct in 

fact permitted his disclosure. First, Doe pointed to Florida Rule 

of Professional Conduct 4-1.6(b) (“Florida Rule 4-1.6(b)”), 

which requires a lawyer to “reveal confidential information to
7

the extent the lawyer reasonably believes necessary 

to . . . prevent a client from committing a crime.” Fla. R. Prof’l 

Conduct 4-1.6(b)(1). Doe explained that he had had 

“concerns” about the conduct of his client—the Company—

and that his whistleblower tip was intended, in part, “to prevent 

[his] client, [the Company,] from committing a crime.” J.A. 

76–77, 80. Second, Doe pointed to Florida Rule of 

Professional Conduct 4-1.6(c)(1) (“Florida Rule 4-1.6(c)(1)”), 

which provides that a lawyer “may reveal confidential 

information to the extent the lawyer reasonably believes 

necessary to . . . serve the client’s interest unless it is 

information the client specifically requires not to be disclosed.” 

Fla. R. Prof’l Conduct 4-1.6(c)(1). Doe explained that he 

believed his disclosure would serve his client’s interest by 

“preventing further misappropriation by [Individual 2], 

possibly recovering funds that had been misappropriated, and 

helping lead to the successful completion of [the Project].” 

J.A. 81. In a sworn declaration, Doe reiterated that the purpose 

of his whistleblower tip “was to prevent a crime being 

committed by . . . [his] client,” and to prompt the Commission 

to investigate the entire securities offering, including the 

Company. J.A. 84.

In a 2023 order, the Commission formally denied Doe’s 

whistleblower award application, again concluding that Doe 

had not provided “original information” under Exchange Act 

Rule 21F-4(b)(4)(ii) because no authority authorized Doe’s 

disclosure of his client’s information. As to Florida Rule 4-

1.6(b), the Commission reasoned that the record demonstrated 

that Doe had had, at most, “suspicion or speculation” that the 

Company was implicated in criminal activity, not that Doe 

believed that his disclosure was necessary to prevent the 

Company from committing a crime. J.A. 96. The Commission 

also rejected Doe’s argument that his disclosure was permitted 
8

by Florida Rule 4-1.6(c)(1). The Commission acknowledged 

Doe’s contention that his disclosure could prevent further 

misappropriation by Individual 2, lead to the Project being 

completed, or lead to misappropriated funds being returned to 

investors. But, the Commission explained, those possible 

benefits were the interests of “investors” in the securities 

offering, not “the interests of [Doe’s] client.” J.A. 97. And in 

any event, the Commission emphasized, Doe “does not 

demonstrate how exposing [his] client to an SEC investigation 

and/or enforcement action based on suspicions would be in 

[his] client’s interest.” Id. 

II.

Doe petitions for review of the Commission’s denial of his 

whistleblower award application. We have jurisdiction over 

Doe’s petition under 15 U.S.C. § 78u-6(f). 

Determinations regarding whether to make a 

whistleblower award “shall be in the discretion of the 

Commission.” Id. We review the Commission’s determination 

“in accordance with section 706” of the Administrative 

Procedure Act. Id. Thus, we will set aside the Commission’s 

decision if it is “arbitrary, capricious, an abuse of discretion, or 

otherwise not in accordance with law,” or “unsupported by 

substantial evidence.” 5 U.S.C. § 706(2)(A), (E); see also 15 

U.S.C. § 78y(a)(4) (“The findings of the Commission as to the 

facts, if supported by substantial evidence, are conclusive.”).

Doe contends that the Commission’s decision to deny his 

application under Exchange Act Rule 21F-4(b)(4)(ii) was 

arbitrary, capricious, and contrary to the evidence before the 

agency. As we have explained, under the Commission’s 

regulations, an attorney may not receive a whistleblower award 
9

from the Commission unless his disclosure was authorized by 

the “applicable state attorney conduct rules.” 17 C.F.R. 

§ 240.21F-4(b)(4)(ii). Doe maintains that his disclosure to the 

Commission of information obtained during his representation 

of his client, the Company, was authorized by Florida Rule 4-

1.6(c)(1). That rule, as mentioned, states that a lawyer “may 

reveal confidential information to the extent the lawyer 

reasonably believes necessary” to “serve the client’s interest.” 

Fla. R. Prof’l Conduct 4-1.6(c)(1). Doe argues that the 

Commission’s decision that Doe’s disclosure was not 

reasonably necessary to serve his client’s interests 

misconstrues the evidence in the record.2 

We disagree. We hold that substantial evidence supports 

the Commission’s finding that Doe did not reasonably believe

that disclosing the Company’s information to the Commission 

was “necessary” to “serve [his] client’s interest.” Id. The 

record demonstrates that at the time he filed the tip, Doe 

believed that the Company was implicated in the securities 

fraud scheme. In reporting on the suspected wrongdoing, then, 

Doe was reporting on his own client. Common sense therefore 

dictates that Doe could not have reasonably believed that he 

was acting in his client’s best interest. Indeed, Doe’s own 

statements illustrate as much. Doe noted in his application for 

reconsideration, for example, that while he did not yet have 

“smoking gun” proof of misconduct by his client at the time 

that he filed his whistleblower tip, he had “suspicions” that his 

2 Doe and the Commission agree on appeal that the Florida Rules of 

Professional Conduct apply based on the location of the conduct at 

issue. The parties also agree that because Doe was acting as in-house 

counsel for the Company, Doe’s client was the Company itself. Cf. 

Nat’l Sec. Couns. v. CIA, 811 F.3d 22, 33 (D.C. Cir. 2016) (“[T]here 

is an attorney-client relationship between in-house counsel and a 

corporation.”).
10

client was implicated in the securities fraud scheme. J.A. 78. 

And in a sworn declaration, Doe stated, “[t]he purpose of the 

disclosure in my whistleblower submission was to prevent a 

crime being committed by . . . my client.” J.A. 84. Doe 

elaborated that his tip was intended to enable the Commission 

to investigate the “entire money trail,” including not only 

Individual 2 but also Doe’s own client. J.A. 85. 

Doe’s arguments to the contrary are unavailing. Perhaps 

sensing that he would face an uphill battle in arguing that 

intentionally subjecting one’s client to an investigation is in 

that client’s best interest, Doe primarily challenges the 

Commission’s finding that Doe suspected that his client was 

involved in wrongdoing when he submitted his whistleblower 

tip. Doe emphasizes that the preamble to the Florida Rules of 

Professional Conduct provides that an “assessment of a 

lawyer’s conduct will be made on the basis of the facts and 

circumstances as they existed at the time of the conduct in 

question in recognition of the fact that a lawyer often has to act 

upon uncertain or incomplete evidence of the situation.” Fla. 

R. of Prof’l Conduct pmbl. (emphasis added). In Doe’s view, 

to evaluate the “facts and circumstances as they existed at the 

time” that he filed his whistleblower tip, the Commission 

should have considered only the contemporaneous evidence—

the content of Doe’s tip—not any of Doe’s subsequent 

statements before the agency. Those subsequent statements to 

the Commission, Doe explains, were made with the benefit of 

“hindsight”; they merely reflect how Doe’s mindset changed as 

the Commission’s investigation revealed that his employer was 

implicated in wrongdoing. Pet. Br. 26. Accordingly, Doe 

contends, the statements should be ignored as irrelevant. Doe 

argues that his tip, read in isolation, supports the notion that he 

thought that his client was a victim—not a perpetrator—of a 

crime. Doe accordingly reasonably believed that his tip was in 
11

his client’s best interest because he thought the tip could protect 

his client from others’ wrongdoing.

Doe’s argument fails on its own terms. As he recognizes, 

the preamble to the Florida Rules suggests that Doe’s conduct 

should be assessed based on the facts and circumstances at the 

time Doe submitted his tip. See Fla. R. of Prof’l Conduct pmbl. 

And here, Doe submitted material to the Commission, 

including a sworn declaration, that spoke directly to those 

facts—namely, what Doe believed at the time he submitted his 

tip. Doe informed the Commission, for example, that his 

“goal” in submitting this tip was “to prevent [his] client . . .

from committing a crime.” J.A. 76–77. Doe elaborated that he 

intended for the Commission to investigate the entire securities 

offering, including his client; he explained, “I fully expected 

my tip to result in such a widely encompassing investigation” 

and “I intended for that to occur.” J.A. 77. Doe provides this 

Court no reason to think that the Commission was required to 

ignore that evidence of his then-existing mental state. Further, 

Doe’s counsel stated at oral argument that he had no precedent 

to support his contention that the Commission could consider 

only the content of his whistleblower tip when assessing his 

application. Oral Arg. Tr. at 28. The Commission acted 

reasonably when it considered Doe’s own statements in 

arriving at the conclusion that Doe suspected his client was a 

perpetrator of the wrongdoing he suspected was occurring. 

Next, Doe contends that the Commission erred in rejecting 

Doe’s argument that he believed that his whistleblower tip 

would serve his client’s interest by “preventing further 

misappropriation by [Individual 2], possibly recovering funds 

that had been misappropriated, and helping lead to the 

successful completion of [the Project].” J.A. 81. We think this 

argument is effectively resolved by our conclusion that 
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substantial evidence supports the notion that Doe suspected 

that the Company was engaged in wrongdoing when he 

submitted his tip. Doe may be correct that preventing the 

misappropriation of funds or enabling the Project to be 

completed could have benefitted the Company, but whether the 

disclosure could conceivably benefit the Company is not the 

correct question. Florida Rule 4-1.6(c)(1) asks not whether a 

disclosure could benefit the client in some way, but rather 

whether the lawyer “reasonably believes” that a disclosure is 

“necessary” to serve the client’s interest. Here, with the 

possible marginal benefits to which Doe points on one side of 

the ledger, and the foreseeable investigation and enforcement 

action by the Commission on the other, we do not think Doe 

could reasonably have believed that disclosing the information 

to the Commission was “necessary” to serve his client’s

interests. 

Finally, we note that in a footnote in his opening brief, Doe 

stated that he had argued before the Commission that his 

disclosure was authorized by several other state attorney 

conduct rules and the Commission’s attorney conduct 

regulations; Doe informed this Court that those arguments were 

“incorporated by reference as if set forth fully herein.” Pet. Br. 

13 n.2. This Court, however, does not “consider cursory 

arguments made only in a footnote.” Hutchins v. District of 

Columbia, 188 F.3d 531, 539 n.3 (D.C. Cir. 1999); see also

Covad Commc’ns Co. v. FCC, 450 F.3d 528, 546 (D.C. Cir. 

2006) (attempting to “incorporate by reference” other 

arguments is “insufficient to raise the issue”). Thus, this Court 

need not address Doe’s alternative argument—articulated both 

in his reply brief and at oral argument—that his disclosure was 

authorized by Florida Rule 4-1.6(b), which requires disclosure 

where reasonably necessary to prevent a lawyer’s client from 

committing a crime. 
13

At bottom, having repeatedly stated to the Commission 

that he believed at the time he submitted his tip that his client 

was implicated in wrongdoing, Doe cannot now unring the bell. 

We hold that the Commission’s determination—based on 

Doe’s own statements—that Doe could not reasonably have 

believed that his disclosure was necessary to serve his client’s 

interests was supported by substantial evidence and was not 

arbitrary or capricious.

For these reasons, Doe’s petition for review is denied.

So ordered.