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<b>BREAKING NEWS:</b> SEC Proposed Rule 21F-13: A Hidden Whistleblower Tax?

BY Christine A. Edwards, Edward J. Johnsen
December 06, 2010

Corporate Counsel take note: on Nov. 3, the Securities and Exchange Commission (the 'SEC') published proposed Regulation 21F (the 'Proposed Rules'), establishing a program designed to reward individuals who provide the SEC with information leading to successful enforcement actions. See Securities Exchange Act Release No. 63237 (Nov. 3, 2010) (the 'Proposing Release'). The proposal was mandated by the Dodd-Frank Wall Street Reform and Consumer Protection Act ('Dodd-Frank') and sets out procedures under which potential informants ('whistleblowers') could qualify for significant monetary awards by providing information to the SEC regarding violations of the federal securities laws. The deadline for comment on the Proposed Rules is Dec. 17, 2010.

Key Questions

The question that should be on everyone's mind is how will the Fund ' out of which money will be dispensed to successful whistleblowers ' work? Will every institution that is sanctioned by the SEC pay ' and pay even though their institution had no whistleblower? The likely answer to this is yes ' every institution will pay. Under Section 922 of Dodd-Frank, Section 21F was added to the Securities Exchange Act of 1934, as amended (the 'Exchange Act'), authorizing the SEC to pay awards to certain individuals who provide original information that leads to successful SEC enforcement actions and certain related actions. If a whistleblower qualifies, the SEC has the discretion to determine the amount of the award, subject to a statutory minimum and maximum of between ten to thirty percent of the total sanctions collected in the action stemming from the whistleblower's information. See Section 21F(b)(1) of the Exchange Act.

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