Optimizing regulatory compliance enforcement in a global economy
With regional offices of the Securities and Exchange Commission, the Environmental Protection Agency, and the Equal Employment Opportunity Commission, Atlanta is not just a center of international trade, it is also a center for compliance enforcement.
With the growth of multinational corporations whose businesses are not defined by geographic boundaries, government agencies and their regional offices that enforce compliance must leverage limited resources to maintain a watchful eye and enforce the laws. Today, this may mean collection of evidence abroad.
The notion of leveraging resources to enforce compliance is not new. In the 1960s and 1970s when our nation passed sweeping legislation proscribing discrimination and protecting the environment, citizens suit provisions were bolted into these laws so that average taxpayers could initiate litigation where government regulators failed to take action. And of course, at a state level, a myriad of consumer protection statutes now provides citizens with the right to seek enforcement of substantive law.
Consistent with our tradition of citizen involvement in compliance enforcement, the United States has laws that, under limited circumstances, allow whistleblowers to take action even where they have not been personally aggrieved.
Federal and State False Claims Acts allow citizens to bring suit in the name of the government where they have information that the government has sustained economic injury through fraudulent or other types of wrongful conduct.
Under the Dodd Frank Amendments to Federal Securities laws, citizens can now report claims of securities fraud to the Securities and Exchange Commission.
The IRS has regulations allowing whistleblowers to bring information about tax cheats to the attention of that agency.
Under the FCA, Dodd Frank and the IRS provisions, whistleblowers are incentivized and thus compensated for their efforts with a bounty where their information or litigation leads to government recovery.
Under the False Claims Act alone, the government has recovered billions of dollars, but more importantly FCA litigation has surfaced information about the honesty of the drug industry, the quality of care provided at nursing homes, the safety of public transportation systems, and the integrity of products integral to our nation’s defense.
In an era where consumer products are manufactured abroad and shipped into domestic ports of entry like Atlanta, and drug trials necessary to secure FDA approval are often conducted abroad with little immediate supervision from the Food and Drug Administration, whistleblowers have become a mainstay of compliance enforcement. They bring forward original information or analysis, technical expertise, and through knowledge of language and culture, the ability to report wrongdoing that would otherwise go undetected.
Yet, at the same time whistleblowers add value, there is a need to ensure that whistleblowers do not flood the agencies and the courts with claims that are not properly documented and pegged to a cognizable legal violation.
Last year, for example, the SEC received thousands of whistleblower complaints but secured relief on less than 10. While many of these complaints may lack merit, some may be falling by the wayside because of a lack of understanding on the part of the whistleblower of what the SEC needs, and failures in communications and investigation by all concerned about the strengths and weakness of these cases.
There is a need to create a better relationship between whistleblowers, their counsel, and government regulators, to the common end that serious harm to the U.S. consumers can be exposed and deterred.
Earlier this month, Emory University School of Law convened a conference of whistleblower counsel and senior government regulators as part of a first step in helping these groups focus the relationship to better enforce compliance in a global economy. This was the first of what may be many dialogues that the Law School’s Center for Advocacy and Dispute Resolution hopes to convene with these parties.
How should claims be investigated before they are brought to government regulator attention? What types of claims are of interest to the government and important for establishing compliance precedent? How can government make better use of whistleblowers and their counsel? These types of issues were vetted by conference panelists.
As little as a decade ago, such a conference would be unprecedented. Yet, the world has changed markedly. Our regulatory bodies must monitor relationships across the globe while electronic communication has exponentially expanded the sea of information from which proof of wrongdoing must be culled.
In this new era, leveraging the resources of whistleblowers is consistent with a legal tradition that for more than a century has depended on the role of average citizens in enforcing the law.
By Paul Zwier and Reuben Guttman
Also, available on line at AJC.com