Original Non-Public Information
You can be considered a whistleblower entitled to protection under several different statutes. Federal laws that provide whistleblower protection include the Dodd-Frank Act, the Sarbanes-Oxley Act, and the False Claims Act. Generally, whistleblowers provide original non-public information about a violation of federal laws to an authority, such as the Securities and Exchange Commission (SEC), and thereby become eligible for an award and protection against retaliation. If you are thinking about blowing the whistle on your employer, or you have been subjected to retaliation, you should consult a New York City whistleblower attorney.Understanding What Original Non-Public Information Means
Under the Dodd-Frank Act, you are a whistleblower if you provide the SEC with information related to a possible violation of the federal securities laws, whether it has already happened, is happening, or is about to happen. To be considered original non-public information, the submission needs to be derived from your independent analysis or knowledge. The SEC cannot already know this information from another source, unless you are the original source of the information.
The original non-public information must derive from your independent knowledge in the sense that it has not been determined from publicly available sources. You might get independent knowledge from communications, observations, and experiences. Independent analysis consists of your own analysis, whether it is analysis that you conducted alone or with others. You must be able to reveal information that the public does not generally know.
The SEC and the CFTC will not consider your information derived from independent analysis or knowledge if you got the information through attorney-client privileged communications except when the attorney is permitted to disclose it. It will not consider it to be derived from independent analysis or knowledge if you got the information in connection with legally representing a client on whose behalf you provided services, and you sought to use the information to make a whistleblower submission for your own benefit, except when disclosure by the attorney is permissible. Various state attorney conduct rules and § 205.3(d)(2) may permit certain disclosures by attorneys.
Under Dodd-Frank, it is not original non-public information if you got the information because you are a director, officer, partner, or trustee of a company, and another person told you about the misconduct, or you learned of these violations through the company's internal process for identifying, reporting, or addressing legal violations. You also cannot be an employee whose principal duties involve internal audit or compliance responsibilities, or an employee of a firm retained to perform this work. Similarly, you cannot be employed by a firm that was hired to inquire into legal violations or an employee of a public accounting firm who got the information by performing tasks required of an independent public accountant under federal securities laws, except under certain circumstances. There are some exceptions.
Additionally, your submission cannot consist of information derived solely from an allegation at an administrative or judicial hearing, nor from the news or a governmental report, audit, hearing, or investigation, unless you are the source of that information.
The Dodd-Frank Act was enacted on July 21, 2010, so original non-public information under that law must be provided to the SEC for the first time after that date. It can be stressful to provide original non-public information about your employer's wrongdoing under the Dodd-Frank Act or any of the other laws, such as Sarbanes-Oxley, that protect whistleblowers. However, these laws typically provide protection against retaliation in the workplace.Hire a New York City Attorney for Your Whistleblower Case
An experienced lawyer can help make sure that your provision of original non-public information results in necessary protection against retaliation at work. If you are concerned about providing original non-public information to federal authorities about your New York City employer, you should consult an experienced employment litigator. Contact Phillips & Associates at (212) 248-7431 or through our online form for a free appointment. We handle employment litigation in the boroughs of the Bronx, Queens, Brooklyn, and Manhattan; the counties of Westchester, Nassau, and Suffolk; as well as New Jersey, Connecticut and Pennsylvania.
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