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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