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90 Tul. L. Rev. 495 (2015-2016)
Keeping Whistleblowers Quiet: Addressing Employer Agreements to Discourage Whistleblowing

handle is hein.journals/tulr90 and id is 525 raw text is: Keeping Whistleblowers Quiet: Addressing Employer Agreements To Discourage Whistleblowing Kathryn Hastings* As part of the Dodd-Frauk Wall Street Reform and Protection Act (Dodd-Frank), the United States Congress created a whistleblower program whereby those who provide original information of potential violations of securities law to the United States Securities and Exchange Commission (SEC) am eligible to receive large bounty awards if the information results in a successful action. Following the enactment of the rules governing the whistleblowver program, however, some companies appeared to be circumventing the program prohibihion on impeding employees' communication with the SEC by requiring employees to sign restrictive agreements. Thsyeat, the SEC brought its f-nst 'retaliationenforcement action against KBR, Incorporated (KBR), based on an agreement the company utilized in the course of internal investigations, but provided little guidance for drafling acceptable agreements. This Comment utilizes the KBR matter as a case study to examine the policy considerations underlying the Dodd-Frank whistleblower program requirements and suggests means by which the SEC can use the enforcement process in the future to provide addbtional guidance while balancing the competing interests of potential whistleblowers and companies alike desiring to encourage internal reporting andprotect confidential information. I. INTRODUCTION ............................................................................. 496 II. THE DODD-FRANK WHISTLEBLOWING PROGRAM ...................... 497 III. KBR: A CASE STUDY IN THE LEGALITY OF CONFIDENTIALITY AGREEMENTS UNDER THE DODD- FRANK WHISTLEBLOWER PROGRAM ........................................... 500 A. To Protect the Integrity of Tiis Review' The K BR Agreem ent ................................................................. 501 B . Public R eacton ................................................................... 503 C SE C R esponse .................................................................... 506 IV THE COMMISSION'S BALANCING ACT IN MAKING THE FINAL R ULES ................................................................................ 509 A. WhistleblowerAdvocates 'Approach ................................ 509 B. Compliance Counsels Approach ....................................... 511 * © 2015 Kathryn Hastings. J.D. candidate 2016, Tulane University Law School; B.A. 2014, Tulane University. Thank you to Professor Onnig Dombalagian for his invaluable guidance through the many versions of this Comment. I am grateful to the incredible members and editing staff of the Tulane Law Review for their tireless efforts and commitment that make publication possible. Finally, thank you to my friends and family for always loving and supporting me and especially to my mom, without whom none of my success would be a reality. 495

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