Kilgour v. SEC, No. 18-1124 (2d Cir. 2019)
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Petitioners challenged the SEC's denial of whistleblower awards following a $50 million settlement the SEC reached with Deutsche Bank AG. The Second Circuit denied the petitions for review, holding that it was not arbitrary or capricious for the SEC to conclude that Petitioner Doe's submissions did not provide "original information to the Commission that led to" a successful enforcement action, because Doe's submissions were not used by the Deutsche Bank team. Therefore, the SEC was not equitably estopped from denying Doe's award.
The court also held that the SEC did not violate Doe's due process rights by failing to provide Doe with certain materials, and the SEC did not act arbitrarily or capriciously by favoring Claimant 2's submissions over Doe's. Furthermore, petitioners were not entitled to an award for the information they submitted in their Form TCR. Finally, the court held that petitioners' remaining claims were without merit.
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18 1124(L) Kilgour v. United States Securities and Exchange Commission 1 2 18 1124(L) Kilgour v. United States Securities and Exchange Commission UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2018 3 (Argued: January 22, 2019 4 Decided: November 8, 2019) Docket Nos. 18 1124, 18 1127 5 6 7 8 9 COLIN KILGOUR, DANIEL WILLIAMS, JOHN DOE Petitioners, 10 v. 11 12 UNITED STATES SECURITIES AND EXCHANGE COMMISSION, Respondent. 13 14 15 16 Before: KEARSE, SACK, LIVINGSTON, Circuit Judges. These two petitions—one by John Doe, the other by Colin Kilgour and 17 Daniel Williams—are from the denial by the United States Securities and 18 Exchange Commission of whistleblower awards. The petitioners sought the 19 awards following a $50 million settlement the SEC reached with Deutsche Bank 20 AG that resolved an enforcement action against the bank. The petitioners assert 21 that the SEC erred in basing the denials of their claims on its determination that 22 the petitioners did not provide original information that led to a successful Nos. 18 1124, 18 1127 Kilgour v. United States Securities and Exchange SEC 1 enforcement action, a prerequisite for obtaining a whistleblower award under 2 the Securities Exchange Act and the SEC’s regulations implementing the Act; and 3 that the SEC erred procedurally during its decision making process. We 4 disagree. The petitions are therefore DENIED. COLIN KILGOUR, Toronto, Ontario, Canada, Pro se Petitioner. 5 6 Daniel Williams, Toronto, Ontario, Canada, Pro se Petitioner. 7 8 DAVID E. KOVEL, Kirby McInerney LLP, New York, NY, for John Doe, Petitioner. 9 10 15 WILLIAM K SHIREY (Robert B. Stebbins, Stephen Yoder, Michael A. Conley, on the brief), for the United States Securities and Exchange Commission, Washington, D.C., Respondent. 16 11 12 13 14 19 SACK, Circuit Judge: In 2015, the United States Securities and Exchange Commission (the SEC ) 20 reached a settlement agreement with Deutsche Bank AG ( DB ) after the SEC 21 discovered misstatements in DB s financial statements. Previously, between 2010 22 and 2014, while the SEC was investigating DB, petitioners John Doe, 1 Colin 23 Kilgour, and Daniel Williams disclosed information to the SEC that they thought 17 18 We have adopted the parties practice of keeping John Doe and two other claimants identities confidential. 1 2 Nos. 18 1124, 18 1127 Kilgour v. United States Securities and Exchange SEC 1 would be helpful to that investigation. After the settlement, the petitioners filed 2 applications with the SEC for whistleblower awards. Their applications were 3 denied. 4 5 applications and instruct the SEC to issue whistleblower awards to them based 6 on the value of the information provided to the SEC. For the reasons that 7 follow, we deny the petitions. The petitioners ask that we set aside the SEC's denial of their award BACKGROUND 8 I. 9 The Deutsche Bank Case and Settlement 10 During 2005 and 2006, DB purchased $98 billion of leveraged super senior 11 tranches in more than thirty collateralized debt obligations (the LSS ) as credit 12 protection. The LSS were leveraged eleven times, i.e., the sellers of the protection 13 posted only 9% of the total value of the LSS as collateral. In late 2008 and early 14 2009, DB began overvaluing the LSS by misstating in their financial records the 15 associated gap risk —the risk that the market value of its credit protection could 16 exceed the available collateral posted by the sellers. This overvaluation was 17 reflected in misstatements in DB s financial statements. On May 26, 2015, the 18 SEC both instituted agency cease and desist proceedings against DB with respect 3 Nos. 18 1124, 18 1127 Kilgour v. United States Securities and Exchange SEC 1 to these statements and accepted a settlement offer from DB in which DB agreed 2 to pay a penalty of $55 million. II. 3 The Investigation 4 Between 2010 and 2014, i.e., before the SEC cease and desist proceedings 5 were instituted, the SEC obtained information from several persons (the 6 Claimants ) regarding the potential wrongdoing by DB. Three of the 7 Claimants—John Doe, Colin Kilgour, and Daniel Williams – are the petitioners in 8 this case.2 a. John Doe 9 10 On or about June 7, 2010, the Enforcement Division of the SEC received 11 information from DB’s counsel, after Claimant 1, a DB employee, filed an internal 12 complaint, to the effect that DB was overstating the value of certain assets to 13 improve the appearance of [DB s] financial performance to its shareholders, the 14 market and the investing public. Declaration of Amy Friedman, Assistant 15 Director of the SEC Enforcement Division, July 27, 2016 ( Friedman 16 Declaration ), at 3 4; Joint Appendix ( JA ) 3086 87. Following this disclosure, 17 the SEC opened an investigation of DB, and arranged for an in person interview In this opinion, we refer to Claimants 1, 2, and 3. In doing so, we refer to persons other than John Doe, Colin Kilgour, and Daniel Williams. 2 4 Nos. 18 1124, 18 1127 Kilgour v. United States Securities and Exchange SEC 1 with Claimant 1. According to the SEC, it was Claimant 1 s early identification 2 of the Gap Risk issue that led the enforcement staff to focus on [that] issue in its 3 investigation, and it was [that] issue that formed the cornerstone of the charges 4 ultimately brought by the [SEC] against [DB] in the enforcement action. Id. at 3; 5 JA 3087. 6 7 from the SEC s Complex Financial Instruments Unit ( CFIU ), a group that was 8 part of the SEC s Enforcement Division but whose membership did not overlap 9 with the team working on the DB matter ( DB team ). The SEC and Doe offer On September 30, 2010, petitioner John Doe met with enforcement staff 10 different characterizations of this meeting. According to a declaration provided 11 by the Deputy Chief of the CFIU, Reed Muoio: [Doe] appeared to be very 12 disjointed and had difficulty articulating credible and coherent information 13 concerning any potential violation of the federal securities laws . . . . [He] 14 brought with [him] to the meeting a wet brown bag containing what [he] claimed 15 to be evidence. Declaration of Reid Muoio, Deputy Chief of CFIU, July 11, 2017 16 ( Muoio Declaration ), at 1; JA 4059. Doe, for his part, contends that he provided credible, helpful information. 17 18 For example, he asserts that during his meeting with the CFIU he gave a 5 Nos. 18 1124, 18 1127 Kilgour v. United States Securities and Exchange SEC 1 presentation that explained how certain restructuring efforts by DB would 2 reshape the gap risk of the LSS. Doe sent several follow up emails to the CFIU 3 staff in October 2010, but Deputy Chief Muoio and his staff had concluded that 4 Doe was not a credible source of information. Id. Having so concluded, Muoio 5 and his staff declined to forward emails they received from Doe to other staff in 6 the Division of Enforcement. Id. Meanwhile, the SEC assigned two TCR3 7 numbers (numbers used to track whistleblower tips in its database) to Doe. 8 9 concerning DB s gap risk calculations and made multiple submissions to the In March 2011, Claimant 2 began providing the DB team with information 10 team in June and July 2011. The DB team found Claimant 2 to be a highly 11 credible source of information, and the information that Claimant 2 provided 12 proved, according to SEC enforcement officials, to be invaluable to their 13 investigation of DB. 14 15 forwarded to the DB team on August 3, 2011. This was the first time the DB team 16 had seen any information provided by Doe. However, Doe s email contained no On July 29, 2011, Doe sent another email to the CFIU staff, which they TCR stands for Tip, Complaint or Referral. See United States Securities and Exchange Commission, Form TCR (Aug. 2011), https://www.sec.gov/files/formtcr.pdf. 3 6 Nos. 18 1124, 18 1127 Kilgour v. United States Securities and Exchange SEC 1 new information and did not help advance the [DB] [i]nvestigation. Friedman 2 Declaration, at 8; JA 3092. 3 4 submissions which were both considered by SEC enforcement personnel to be 5 helpful to the DB team. The submissions provided information about how the 6 gap risk calculation affected DB s results on their late 2008 and early 2009 7 financial statements, and how something called the Montreal Accord affected 8 the gap risk calculation. At that point, the DB team had received no such 9 information from Doe. In November 2011 and December 2012, Claimant 2 made two additional 10 On March 11, 2013, Doe made additional submissions to the DB team, 11 including the email message that he had sent to the CFIU staff back in October 12 2010. But the DB team considered those submissions, like Doe s prior 13 submissions, to be unhelpful. At that point, the investigation had already been 14 ongoing for over two and a half years, and the information contained in Doe s 15 submission was largely duplicative of other information that [the DB team] had 16 already received or had learned. Friedman Declaration at 8; JA 3092. Doe s re 17 sent October 2010 email, while referencing the Montreal Accord, provided very 18 little detail and attached only publicly available documents. Additional 7 Nos. 18 1124, 18 1127 Kilgour v. United States Securities and Exchange SEC 1 Declaration of Amy Friedman, July 11, 2017 ( Add l Friedman Declaration ), at 7; 2 JA 3827. 3 4 that Doe had [additional] information that might aid the investigation. Add l 5 Friedman Declaration, at 13; JA 3833. The DB team met with Doe but found the 6 information to be redundant. The DB team, like the CFIU in September 2010, 7 thought Doe s presentation was very difficult to follow, as [he] jumped from 8 topic to topic. Id. at 7. 9 On April 26, 2013, Doe s counsel contacted the DB team to inform them On June 7, 2013, Doe made his final submission, attaching various internal 10 DB documents. Again, these documents were considered by the DB team to be 11 largely duplicative of documents the DB team had received from Claimant 2 or 12 from DB itself when it responded to SEC document requests, and therefore 13 unhelpful. b. Colin Kilgour and Daniel Williams 14 15 On June 21, 2013, Claimant 2 submitted an expert report to the DB team, 16 which had been prepared by the Kilgour Williams Group ( KWG ), a consulting 17 firm owned by petitioners Colin Kilgour and Daniel Williams. According to the 18 DB team, this expert report was detailed and comprehensive, absolutely 8 Nos. 18 1124, 18 1127 Kilgour v. United States Securities and Exchange SEC 1 critical to [the] investigation, and used in connection with [the] proffer session 2 with [DB] and ensuing settlement negotiations with the company. Id. at 9 10. 3 After submitting the report, and until July 2014, KWG continued to provide 4 information to the SEC and to respond to questions from the DB team that 5 allowed the [team] to strengthen the SEC s position vis à vis [DB]. Id. 6 7 the divorce proceedings awarded half the proceeds of any whistleblower payout 8 Claimant 2 might receive to his wife. The court also ordered that Claimant 2 pay 9 all costs and expenses he had incurred or will incur with . . . [KWG]. State In May 2014, Claimant 2 and his wife divorced. The state court overseeing 10 Court Divorce Judgment August 10, 2015, at 10; JA 411. 11 12 an independent whistleblower submission so that they too could claim an award 13 from the SEC. The next day, they jointly submitted an SEC Form TCR in an 14 attempt to attain whistleblower status. This Form TCR did not provide any new 15 information; it reiterated the information that KWG had been commissioned to 16 provide on behalf of Claimant 2 between June 2013 and July 2014 and which had 17 previously been supplied to the SEC. 18 On August 11, 2014, Claimant 2 authorized Kilgour and Williams to make 9 III. 1 Nos. 18 1124, 18 1127 Kilgour v. United States Securities and Exchange SEC SEC Whistleblower Proceedings and the Award Order 2 After DB agreed to pay the $55 million civil fine to the SEC, nine 3 whistleblower claimants (including the three petitioners in the case at bar) came 4 forward to claim awards. On July 27, 2016, the SEC s Claims Review Staff 5 ( CRS ) issued a Preliminary Determination ( PD ), as is required by Rule 21F 6 10(d), recommending awards for Claimants 1 and 2 and rejecting all other 7 claimants applications. 8 9 to the Office of the Whistleblower setting forth the grounds for [an] objection to Pursuant to SEC regulations, any claimant may submit a written response 10 either the denial of an award or the proposed amount of an award. Rule 21F 11 10(e). To facilitate such objections, the SEC also permits claimants to request to 12 review the materials that formed the basis of the . . . [PD]. Rule 21F 10(e)(1)(i). 13 14 materials upon which it based its PD. The CRS produced a record consisting of 15 Doe s own submissions to the SEC and the Friedman Declaration, dated July 27, 16 2016. The declaration set forth the timing of the CFIU intake and subsequent 17 forwarding of Doe s information to the DB team, asserting that by the time the 18 DB investigators received Doe s information, it was duplicative of information After the issuance of the PD, Doe requested that the CRS produce all 10 Nos. 18 1124, 18 1127 Kilgour v. United States Securities and Exchange SEC 1 that was publicly available or that they had already received from other sources 2 (primarily Claimant 2). 3 4 should have forwarded his information to the DB investigators and that it was 5 unfair for the SEC to penalize him for their failure to do so; that the CRS should 6 have provided Doe with the other Claimants materials on which Friedman had 7 relied in preparing her declaration; and that Doe had, in any event, submitted 8 important, original information, and therefore deserved credit as a source of that 9 information. The SEC responded with the Muoio Declaration and a second Doe objected to the PD on several grounds, arguing that the CFIU staff 10 declaration from Friedman. 11 12 Whistleblower Award Claims for the DB matter. SPA 1. Under the order, 13 Claimant 1 and Claimant 2 were each to receive an award of about $8 million. 14 Each of the other claimants — including these petitioners — would not receive 15 an award. 16 17 information provided by [Doe] was not of a higher quality than the information 18 provided by Claimant #2 (or Claimant #1) and that the [DB team] received On November 30, 2017, the SEC issued an Order Determining With respect to Doe s application, the SEC determined that the 11 Nos. 18 1124, 18 1127 Kilgour v. United States Securities and Exchange SEC 1 information from Claimant 2 (as well as Claimant 1) before receiving any 2 information from [Doe]. SEC Order, November 30, 2017, SPA 16. The SEC 3 therefore concluded that the record firmly demonstrates that [Doe] did not 4 provide information that led to the success of the [DB action]. Id. 5 6 the information the two had included in their August 2014 Form TCR was not 7 original information because the SEC already had obtained it from Claimant 2 8 in his submissions. The SEC further decided that neither petitioner qualified as 9 the original source of that information because they had both previously Regarding Kilgour s and Williams s claim, the SEC found, inter alia, that 10 interacted with the SEC in their capacity as Claimant 2 s experts. The SEC also 11 determined that Kilgour s and Williams s Form TCR submission did not lead to 12 the success of the enforcement action. DISCUSSION 13 14 The petitioners Doe, Kilgour, and Williams now ask us to overturn the 15 SEC s denials of their whistleblower 4 award applications. We must address 4 The Securities Exchange Act provides, in relevant part: The term whistleblower means any individual, or 2 or more individuals acting jointly, who provides information relating to a violation of this Act 12 Nos. 18 1124, 18 1127 Kilgour v. United States Securities and Exchange SEC 1 four issues in order to resolve the petitions: First, whether the SEC can, should, 2 or must be equitably estopped from denying Doe his requested whistleblower 3 award. Second, whether the SEC violated Doe s Due Process rights by failing to 4 provide him with materials to which he asserts he was entitled in order to 5 contest the CRS s PD. Third, whether the SEC acted arbitrarily and capriciously 6 in granting an award to Claimant 2, but not Doe. And fourth, whether Kilgour 7 and Williams were entitled to a whistleblower award for the information that 8 they submitted. I. 9 10 Standard of Review We review the Commission s whistleblower award determinations in 11 accordance with section 706 of [the Administrative Procedure Act]. 15 U.S.C. 12 § 78u 6(f). Accordingly, this Court may set aside an agency action if it is 13 arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with 14 the law, or if it is unsupported by substantial evidence. 5 U.S.C. § 706(2)(A) & 15 (E). Section 702(2)(A) provides for a deferential standard of review where we 16 cannot substitute our judgment for that of the agency. Nat. Res. Def. Council, Inc. to the Commission, in a manner established by rule or regulation by the Commission. 15 U.S.C. § 78u 6(a)(6). 13 Nos. 18 1124, 18 1127 Kilgour v. United States Securities and Exchange SEC 1 v. FAA, 564 F.3d 549, 555 (2d Cir. 2009). In reviewing the SEC s findings of fact 2 for substantial evidence we require that they be supported by more than a 3 scintilla of evidence, which may be less than a preponderance. Cellular Tel. Co. 4 v. Town of Oyster Bay, 166 F.3d 490, 494 (2d Cir. 1999). II. 5 Legal Framework 6 In 2010, as part of the Dodd Frank Act, Congress amended the Securities 7 Exchange Act of 1934 to establish a whistleblower award program. See 15 U.S.C. 8 § 78u 6. Under this program, the SEC shall pay an award or awards to 1 or 9 more whistleblowers who voluntarily provided original information to the 10 Commission that led to the successful enforcement of [a] covered judicial or 11 administrative action. Id. § 78u 6(b)(1). To be eligible for an award, a 12 whistleblower must submit information in accordance with the SEC s rules and 13 regulations. Id. § 78u 6(a)(6), (c)(2)(D); see also id. § 78u 6(j) (authorizing the SEC 14 to issue rules and regulations to implement the program). 15 16 whistleblower awards. See Securities Whistleblower Incentives and Protections, 17 76 Fed. Reg. 34,300 (June 13, 2011) (codified at 17 C.F.R. Parts 240 and 249). 18 These rules limit awards to whistleblowers who voluntarily provide the In 2011, the SEC adopted rules establishing the procedures and criteria for 14 Nos. 18 1124, 18 1127 Kilgour v. United States Securities and Exchange SEC 1 Commission with original information that leads to the successful enforcement 2 by the Commission of a Federal court or administrative action. 17 C.F.R. § 3 240.21F 3(a). Original information is defined as information [n]ot already known to 4 5 the Commission from any other source, unless [the applicant is] the original 6 source of the information. 17 C.F.R. § 240.21F 4(b)(1)(ii). The SEC considers an 7 applicant to be an original source of information that the SEC has obtained 8 from another source if the other source obtained the information from [the 9 applicant or her] representative. Id. § 240.21F 4(b)(5). The rules further define 10 information lead[ing] to successful enforcement as information that (1) was 11 sufficiently specific, credible, and timely to cause the SEC to open, reopen, or 12 expand an examination or investigation, leading to a successful judicial or 13 administrative action based in whole or in part on conduct that was the subject of 14 [the applicant s] original information, or (2) concerned conduct that was 15 already under examination or investigation and its submission significantly 16 contributed to the success of the action. Id. § 240.21F 4(c)(1) (2). A 17 whistleblower must be an individual. A company or another entity is not 18 eligible to be a whistleblower. Id. § 240.21F 2(a)(1). 15 Nos. 18 1124, 18 1127 Kilgour v. United States Securities and Exchange SEC 1 Rule 21F 9 governs the procedures for submitting information as the basis 2 of a claim for a whistleblower award. 17 C.F.R. § 240.21F 9; see also id. § 240.21F 3 2(a)(2) (eligibility for awards conditioned on compliance with these procedures, 4 among others). It provides that to be considered a whistleblower for these 5 purposes, an individual must submit her or his information to the SEC through 6 the SEC s website or in a Form TCR (Tip, Complaint or Referral) mailed or 7 faxed to the SEC. Id. § 240.21F 9(a). This submission must be accompanied by a 8 declaration under penalty of perjury . . . that [the] information [provided] is true 9 and correct to the best of [the claimant s] knowledge and belief. Id. § 240.21F 10 9(b). [T]he Commission may, in its sole discretion, waive any of these 11 procedures based upon a showing of extraordinary circumstances. Id. 12 § 240.21F4 8(a). III. 13 14 15 Can the SEC Be Equitably Estopped from Denying Doe s Whistleblower Award? Doe does not contest the SEC s factual determination that when the DB 16 17 team received his submissions, the information was duplicative of information 18 the team had already obtained from other sources. Doe argues, though, that the 19 Commission should be equitably estopped from claiming it did not rely on Doe s 20 September/October 2010 submissions and be directed to issue an award based on 16 Nos. 18 1124, 18 1127 Kilgour v. United States Securities and Exchange SEC 1 the contribution that information made to their investigation (when provided by 2 other sources). Pet r Doe Br. 33. In other words: Doe argues that 3 notwithstanding the fact that his submissions did not contribute to the success of 4 the enforcement action against DB, he should be entitled to a whistleblower 5 award because the information in those submissions did. We disagree. 6 7 Supreme Court concluded that a claimant may not assert a monetary claim of 8 estoppel against the government when the funds used to pay this claim will 9 come from the Federal Treasury, but are not authorized by statute. Dun & In Office of Personnel Management v. Richmond, 496 U.S. 414 (1990), the 10 Bradstreet Corp. Found. v. U.S. Postal Serv., 946 F.2d 189, 195 (2d Cir. 1991) (citing 11 Office of Personnel Management v. Richmond, 496 U.S. at 423 25.). Accordingly, an 12 estoppel claim that will require the payment of government funds in 13 contravention of a statute will fail. Id. This is such a claim. 14 15 Securities and Exchange Commission Investor Protection Fund in the Federal 16 Treasury, as do all SEC whistleblower awards. See 15 U.S.C. § 78u 6(g)(1) ( There 17 is established in the Treasury of the United States a fund to be known as the 18 Securities and Exchange Commission Investor Protection Fund ). First, the funds for the award that Doe requests would come from the 17 Nos. 18 1124, 18 1127 Kilgour v. United States Securities and Exchange SEC 1 Second, if we were to grant Doe’s petition on the grounds of equitable 2 estoppel, we would be compelling the SEC, in effect, to issue Doe an award that 3 is not authorized by statute. In his reply brief, Doe argues that awarding him 4 whistleblower funds would not contravene the Securities Exchange Act because 5 the relief sought—granting Doe s award application—is authorized by statute. 6 He contends that [i]n crediting the provider of the original information the 7 statute . . . requires that the SEC shall pay for original information that led to a 8 successful conclusion. Pet’r Doe Reply 11. Doe argues that therefore, so long 9 as a claimant provided original information, and that information aided a 10 successful enforcement action, payment is authorized and non discretionary. Id. 11 Not so. 12 13 was not credible. As the SEC notes, the CFIU staff and the DB team reached 14 generally similar conclusions that Doe did not have helpful information 15 regarding Deutsche Bank. SEC Br. at 30. But even if we assume that some of the 16 information Doe provided was also provided by Claimant 2 and ultimately led to 17 the success of an enforcement action, the statute does not authorize the SEC to 18 give Doe an award under the circumstances. We do not decide whether that the SEC erred in its determination that Doe 18 Nos. 18 1124, 18 1127 Kilgour v. United States Securities and Exchange SEC 1 When Congress has entrusted rulemaking authority under a statute to an 2 administrative agency, we evaluate the agency s implementing regulations under 3 Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). 4 Encarnacion ex rel. George v. Astrue, 568 F.3d 72, 78 (2d Cir. 2009); see also Stryker v. 5 SEC, 780 F.3d 163, 165 (2d. Cir. 2015) (applying the familiar two step framework 6 set forth in Chevron to review the SEC s denial of a whistleblower award where 7 the ruling was based on rules promulgated by the SEC to implement the Dodd 8 Frank Act). Chevron requires us to apply a two step inquiry to an agency s 9 interpretation of a statute. At the first step of the analysis, a reviewing court 10 must ask whether Congress has directly spoken to the precise question at issue. 11 Cappetta v. Comm r of Soc. Sec. Admin., 904 F.3d 158, 166 (2d Cir. 2018) (internal 12 quotation marks omitted). If the statute is ambiguous, then at the second step 13 the question for the court is whether the agency s answer is based on a 14 permissible construction of the statute . . . in other words, whether the agency s 15 interpretation is reasonable. Id. (internal quotation marks omitted). 16 17 whistleblower who voluntarily provided original information to the 18 Commission that led to the successful enforcement of the covered judicial or The Act provides that the Commission shall pay an award to a 19 Nos. 18 1124, 18 1127 Kilgour v. United States Securities and Exchange SEC 1 administrative action. 15 U.S.C. § 78u 6(b)(1). The statute thus seems to require 2 that the information as provided by the whistleblower must have led to the 3 successful enforcement action. And, assuming arguendo that Dodd Frank is 4 ambiguous on this question, we defer to the SEC s interpretation of Dodd Frank 5 at Step 2. Stryker, 780 F.3d at 166. The SEC has enacted Rule 240.21F 4(c), which 6 clarifies what is meant by information that leads to a successful enforcement. 7 17 C.F.R. § 240.21F 4(c). According to the Rule, a whistleblower satisfies this 8 statutory command if he provides original information in a submission which 9 itself significantly contributed to the success of the action. Id. § 240.2F 4(c)(2). 10 The SEC s answer, that it is a whistleblower s submission that must contribute to 11 the successful action, is thus based on a permissible construction of the statute. 12 Chevron, 467 U.S. at 843. 13 14 that led to in 15 U.S.C § 78u 6(b)(1) by the SEC is reasonable. First, Congress has 15 not directly spoken to the precise question at issue. Chevron, 467 U.S. at 842. 16 Section 78u 6 says nothing about whether a whistleblower can be given an award 17 if their submission was not used by the SEC to bring a successful enforcement 18 action. Second, the SEC s answer—that it is a whistleblower s submission that Applying Chevron, we conclude that the interpretation of information . . . 20 Nos. 18 1124, 18 1127 Kilgour v. United States Securities and Exchange SEC 1 must contribute to the successful action—is based on a permissible construction 2 of the statute. Id. at 843. 3 4 led to, and instead declare that a whistleblower need not worry about curating a 5 useful submission. All a whistleblower must do to be entitled to an award, Doe 6 contends, is give some useful information to the SEC first, in any form, no matter 7 how impenetrable. Consider an example: Whistleblower A submits to the SEC 8 one thousand pages of scrambled documents, informing the SEC only that some 9 incriminating information lies within that might prove useful to an ongoing Doe asks us to disregard the SEC s interpretation of information . . . that 10 investigation. Several weeks later, Whistleblower B submits to the SEC a single 11 incriminating document, 10 pages in length, and explains in an attached 12 memorandum why the document is incriminating and useful to an ongoing 13 investigation. The SEC uses Whistleblower B s submission, and the ongoing 14 investigation ultimately concludes in a successful enforcement action. According 15 to Doe s interpretation, it would seem, as long as Whistleblower A s submission 16 contained the information passed along by Whistleblower B, Whistleblower A is 17 entitled to an award. We disagree. 21 Nos. 18 1124, 18 1127 Kilgour v. United States Securities and Exchange SEC 1 The interpretation that Doe asks us to adopt misreads the statute and 2 would lead to consequences not likely intended by Congress. The whistleblower 3 program was enacted to motivate people who know of securities law violations 4 to tell the SEC. Digital Realty Tr., Inc. v. Somers, 138 S. Ct. 767, 777 (2018) 5 (internal quotation marks and emphasis omitted). By enlisting whistleblowers 6 to assist the Government [in] identify[ing] and prosecut[ing] persons who have 7 violated securities laws, Congress undertook to improve SEC enforcement and 8 facilitate the Commission s recover[y] [of] money for victims of financial fraud. 9 Id. (internal quotation marks omitted; brackets in original). 10 As the foregoing example suggests, Doe s interpretation might 11 disincentivize whistleblowers from curating their submissions. The SEC s 12 interpretation, by contrast, strikes a sensible balance between care and 13 timeliness, one that is more consistent with the whistleblower program s 14 purpose: A whistleblower might still be rewarded for being the first to bring 15 incriminating information to the SEC s attention, but only if that information is 16 contained in a credible, and ultimately useful submission. 17 18 Doe s submissions did not provide original information to the Commission that In sum, it was not arbitrary or capricious for the SEC to conclude that 22 Nos. 18 1124, 18 1127 Kilgour v. United States Securities and Exchange SEC 1 led to a successful enforcement action, 15 U.S.C. § 78u 6(b)(1), because Doe s 2 submissions were not used by the DB team. The award Doe asks us to compel by 3 equitable estoppel in this case is therefore not authorized by statute, and because 4 that award would come from the Federal Treasury, Office of Personnel 5 Management forecloses Doe s claim. IV. 6 7 8 9 Did the SEC Violate Doe s Due Process Rights by Failing to Provide Doe with Certain Materials? Doe next argues that the SEC violated his rights under the Due Process 10 Clause of the Fifth Amendment by failing to provide him with materials that 11 would have enabled him to contest the CRS s PD more effectively. Specifically, 12 Doe argues that the SEC violated Rule 21F 12(a) by relying on materials 13 submitted by Claimants 1 and 2 in determining Doe s whistleblower claim, and 14 then not producing those materials to Doe. Pet r Doe Br. 35. We disagree. We 15 think Doe s argument is contrary to the plain meaning of the relevant 16 regulations. 17 18 a claimant only if the materials formed the basis of the Claims Review Staff s 19 Preliminary Determination on the claimant s application. 17 C.F.R. § 240.21F 20 10(e)(1)(i). Those materials may be (1) publicly available materials from the Rule 240.21F 10(e)(1)(i) requires the SEC to produce material requested by 23 Nos. 18 1124, 18 1127 Kilgour v. United States Securities and Exchange SEC 1 covered action or related action, (2) the whistleblower s Form TCR . . . and 2 other related materials provided by the whistleblower to assist the Commission 3 with the investigation, (3) the whistleblower s . . . award application [and 4 supporting submissions], and (4) [s]worn declarations (including attachments) 5 from the Commission staff regarding any matters relevant to the award 6 determination. Id. § 240.21F 12(a). Crucially, claimants are not entitle[d] . . . to 7 obtain from the Commission any materials . . . other than those listed in Rule 8 21F 12(a). Id. § 21F 12(b). 9 Claimant 1 s and 2 s submissions are not included within the materials that 10 Doe is entitled to review under Rule 21F 12(a). The SEC therefore did not violate 11 that rule or by extension Doe s Due Process rights in refusing to produce them. V. 12 13 14 Did the SEC Act in an Arbitrary and Capricious Manner by Favoring Claimant 2 s Submissions over Doe s? Doe s final argument is that the SEC was biased against Doe in its 15 16 treatment of information that he provided versus similar information provided 17 by Claimant 2. Pet r Doe Br. 38. He therefore challenges the SEC s decision on 18 the basis that its treatment of his submission was arbitrary and capricious. 19 20 staff s informed determination that Doe had not provided a credible submission, We conclude to the contrary. It was reasonable for the SEC to credit its 24 Nos. 18 1124, 18 1127 Kilgour v. United States Securities and Exchange SEC 1 and that Claimant 2 had provided consistent, critical information that led to the 2 successful enforcement action against DB. 3 4 2010, that he had difficulty articulating credible and coherent information 5 concerning any potential violation of the federal securities laws. Muoio 6 Declaration at 1; JA 4059. Doe brought with him to the meeting a wet brown 7 paper bag containing what he claimed to be evidence, and his files were 8 jumbled and disorganized. During the meeting he repeatedly referred to distress 9 over [a] personal situation, and [he] appeared to be under great duress. Id. And The CFIU staff explained that it had concluded, after interviewing Doe in 10 when Doe was interviewed again in 2013, this time by the DB team, they found 11 that he was very difficult to follow, as he jumped from topic to topic. Add l 12 Friedman Declaration, at 13; JA 3833. 13 14 critical or helpful information in a far more digestible manner than Doe. The DB 15 team itself characterized Claimant 2 s submission as detailed and 16 comprehensive and concluded that it far surpassed the quality of the 17 information provided by [Doe]. Add l Friedman Declaration, at 9; JA 3829. Doe 18 purports to perceive some pernicious bias, asserting that Claimant 2 also The SEC personnel decided that Claimant 2, by contrast, provided more 25 Nos. 18 1124, 18 1127 Kilgour v. United States Securities and Exchange SEC 1 provided publicly available information—an aspect of Doe s submission that 2 the SEC faulted him for—but the DB team explained that Claimant 2 s expert 3 report was not based on publicly available information, but contained an inside 4 view of . . . the Montreal Accord. Id. at 11. The SEC therefore acted in a manner 5 that was reasonable, not arbitrary or capricious. VI. 6 7 8 9 Were Kilgour and Williams entitled to a whistleblower award for the information that they submitted in their Form TCR? Kilgour and Williams argue that they are entitled to a whistleblower 10 award on the basis of information they provided to the SEC in their joint Form 11 TCR submitted in August 2014. We disagree. 12 13 in return for that submission only if (1) they provided original information 14 submitted in their Form TCR, and (2) their submission significantly contributed 15 to the success of the action. See 17 C.F.R. §§ 240.21F 3(a), 240.21F 4(b)(1)(ii), 16 (b)(5), (c)(2). But by the time they submitted their Form TCR, all the information 17 contained therein was already known to the DB team, having been provided by 18 Kilgour and Williams earlier to support Claimant 2 s submissions. Accordingly, 19 their Form TCR submission did not significantly contribute to the success of the 20 DB action; Claimant 2 s submissions did. As discussed above, Kilgour and Williams would be entitled to an award 26 1 2 which provides that We recognize that Rule 21F 4, contains an original source exception, The Commission will consider you to be an original source of the same information that we obtain from another source if the information satisfies the definition of original information and the other source obtained the information from you or your representative. 3 4 5 6 7 8 9 Nos. 18 1124, 18 1127 Kilgour v. United States Securities and Exchange SEC 17 C.F.R § 240.21F 4(b)(5). Kilgour and Williams argue a that refusal to grant 10 them that exception renders the original source exception moot because it 11 would effectively disqualify all whistleblowers, including petitioners Kilgour 12 and Williams, from making [w]histleblower applications using original 13 information attributed to them under this rule, because, by definition, the SEC 14 was already aware of it. Pet rs K&W Br. 28. We disagree: The SEC s 15 interpretation of information . . . that led to in Rule 21F 4(c)(2)—discussed 16 above—would not have the effect of nullifying the original source definition in 17 Rule 21F 4(b)(5). 18 Rule 21F 4(b)(7) advises a whistleblower that: [i]f you provide information to the Congress, any other authority of the Federal government, a state Attorney General or securities regulatory authority, any self regulatory organization, or the Public Company Accounting Oversight Board, or to an entity s internal whistleblower, legal, or compliance procedures for 19 20 21 22 23 24 27 Nos. 18 1124, 18 1127 Kilgour v. United States Securities and Exchange SEC reporting allegations of possible violations of law, and you, within 120 days, submit the same information to the Commission pursuant to § 240.21F 9 of this chapter, as you must do in order for you to be eligible to be considered for an award, then, for purposes of evaluating your claim to an award under §§ 240.21F 10 and 240.21F 11 of this chapter, the Commission will consider that you provided information as of the date of your original disclosure, report or submission to one of these other authorities or persons. 1 2 3 4 5 6 7 8 9 10 12 17 C.F.R. § 240.21F 4(b)(7). In other words, in circumstances identified in the 13 Rule—such as when a person submits his or her tip to another federal agency— 14 the SEC will treat the information as though it had been submitted to the SEC 15 directly from that person at the same time that it was submitted to the other 16 agency. This rule thus preserves the original source exception, notwithstanding 17 the submission focused nature of Rule 21F 4(c)(2), for certain specified situations. 18 This case does not present such a situation. 11 Conclusion 19 20 We have considered the petitioners remaining arguments in support of 21 their petitions and conclude that they are without merit. For the foregoing 22 reasons, we DENY the petitions of Doe, Kilgour, and Williams to compel the SEC 23 to grant their applications for whistleblower awards in connection with the DB 24 matter. 28
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