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Ex-Chief of SEC Whistleblower Program Warns of Rising Activity

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Law firms and corporations can anticipate even more activity related to whistleblower incidents, due to a combination of corporate reporting enforcement and a rise in pandemic-era tips to government agencies.

Just ask Jane Norberg, who until recently headed the Securities and Exchange Commission’s whistleblower program and arrived as a partner this week at Arnold & Porter Kaye Scholer in Washington, D.C. She said SEC whistleblower tips surged during the pandemic, and this year there will be an escalation of investigations and enforcement activity as a result of this surge. In the past few weeks alone, the SEC has revealed it recently issued $85 million in awards to whistleblowers.

And in March, the SEC announced the creation of a Climate and ESG Task Force in the Division of Enforcement that would specifically coordinate with the Office of the Whistleblower to root out bad behavior in the filing of corporate sustainability reports. This task force came quickly on the heels of a December announcement that whistleblowers in anti-money laundering cases would receive rewards of up to 30% of monetary sanctions over $1 million.

Before leaving the securities watchdog as chief of the Office of the Whistleblower, Norberg advised the SEC’s chairman and the agency’s enforcement director on what whistleblower issues were emerging, as well as the development of rulemaking and policies.

Norberg believes a rise in whistleblower activity will not only come from the SEC’s program but also from investigations mounted by other agencies and government departments, such as the Commodity Futures Trading Commission, the Internal Revenue Service and the Justice Department. The Environmental Protection Agency and the Energy Department also have their own whistleblower programs.

Norberg joined the SEC in 2012 as deputy chief of the whistleblower office after 14 years at her own law firm and at Shearman & Sterling. She was tapped to run the program as chief in 2016.

The program saw a steep hike in tips and awards under her leadership, and Norberg directly advised on all whistleblower protection cases, including four anti-retaliation cases.

At Arnold & Porter in D.C., Norberg will focus on guiding and defending companies dealing with emerging whistleblower issues, proactively assessing potential allegation exposure.

“My practice is going to focus on all facets of whistleblowing, such as risk assessment reviews, advising on best practices related to retaliation impeding, conferring on internal and external investigations, and even crisis management,” she said. “Whistleblowers can come from any company and any facet of their operations. Companies need to be prepared to deal with internal [whistleblower] reports regardless of what the topic is. There is always a risk. You need to make sure you’re handling it the proper way.”

Earlier in her career, Norberg was a Secret Service special agent for five years. As well as protection duties, Norberg says she was involved in a number of investigations that dealt with confidential informants: “It’s another form of whistleblowing, except it’s on the criminal side,” she added.

Arnold & Porter’s whistleblower defense practice includes lawyers across practice groups, representing public companies, financial services firms, accounting firms, private equity firms and hedge funds.

Pictured: Jane Norberg