The Securities and Exchange Commission may ask certified financial planners to investigate any tips that come to the agency, according to a statement on page 92 of the new rule implementing the Whistleblower Program authorized by the Dodd Frank Act.
That doesn’t mean every firm will get the chance. The agency will take into account factors like the nature of the complaint, how high up in the company the wrongdoing may have occurred and the company’s compliance program. “It seems highly unlikely that a firm would be permitted to self-investigate a whistleblower tip indicating a massive fraud or the involvement of senior management in wrong doing,” says Jennifer Woods Burke, a securities and compliance attorney in Jersey City, N.J, who has represented financial planners and financial institutions in regulatory matters. However, “CFPs should begin to consider, at least in theory, how they will respond to a request from the SEC and whether they should undertake it alone or hire a professional to conduct the review on their behalf.”
If your firm was notified before the whistleblower went to the SEC, you should already have fully investigated the matter. The agency, which will give money awards to whistleblowers, will give them extra credit for telling the company first.
In a recent speech, Robert Khuzami, Director of Enforcement for the SEC, warned firms about ways an internal investigation could go astray. You’ll be in trouble, Burke says, if you accept “implausible explanations of events” at face value, accept repeated claims of “I do not recall” without probing, fail to take control of crucial documents, interview witnesses together, blame low-level employees, or dismiss red flags.
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