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1. HedgeFund The The definitive source of actionable intelligence on L AW R E P O RT hedge fund law and regulationwww.hflawreport.com Volume 4, Number 10 March 18, 2011Chief Compliance OfficersSullivan v. Harnisch and SEC Proposed Whistleblower Rules Bolster Internal CompliancePrograms While Creating Catch-22 for Compliance OfficersBy Samuel J. Lieberman and Jennifer Rossan, Sadis & Golberg LLPCongress’s passage of the Dodd-Frank Act in July 2010 the employment-at-will doctrine for the chief complianceraised many concerns that its whistleblower program would officer (CCO) of a hedge fund who claimed he was firedharm hedge fund internal compliance programs by giving in retaliation for investigating the President and majorityincentives for employees to bypass internal compliance owner’s “front-running.” 915 N.Y.S.2d at 519. The courtand instead report wrongdoing directly to the SEC for reached this decision even though firm’s Code of Ethicsa whistleblower award. But the recent case Sullivan v. and SEC Form ADV required the CCO to investigate suchHarnisch has bolstered internal compliance programs by allegations “on pains of termination.” Id. at 516. The courtconfirming that a hedge fund can require its compliance reasoned that “[a]s hard as the result may seem,” nothingofficer to internally report fraud, and even validly fire him in the fund’s Code of Ethics, Form ADV or otherwisein retaliation (under New York law). 915 N.Y.S.2d 514 (1st specifically protected the CCO from retaliation for simplyDept. 2010). See “Can the Chief Compliance Officer of doing his job. Id. at 518.a Hedge Fund Manager be Terminated for Investigating aPotential Compliance Violation by the Manager’s Principal, The plaintiff, as CCO for Peconic Partners LLC and PeconicCEO or CIO?,” The Hedge Fund Law Report, Vol. 4, No. 2 Asset Managers LLC (Peconic), was investigating the(Jan. 14, 2011). Similarly, the SEC has proposed new rules President’s personal sales of stock just days before a negativemaking legal, audit and compliance employees effectively earnings announcement while waiting to sell the fund’sineligible for a whistleblower award unless they first report shares in the same stock until after the announcement. Seeinternally and their employer fails to respond properly, id. at 516-17. Peconic had $60 million of client money inwithout clarifying whether there is a federal remedy for Potash Corp. stock, while its President personally investedretaliation. These developments will certainly bolster hedge $100 million. On September 29 and 30, 2008, the Presidentfund internal compliance programs, but leave key employees sold two-thirds of his stock, without making similar tradesin a Catch-22 of being required to report wrongdoing for Peconic clients, pre-clearing his personal trades withinternally while having no legal remedy for retaliatory firing. the CCO, or notifying investors. Id. at 516. On October 1, 2008, a Potash Corp. affiliate issued a disappointing Sullivan v. Harnisch Rules that Compliance earnings announcement, causing Potash’s stock price toOfficers Ordinarily Have No State Law Remedy for drop more than 15%. The next day, Peconic sold half of itsBeing Fired in Retaliation for Investigating Fraud client’s shares in Potash Corp., causing a loss of roughly $7In Sullivan v. Harnisch, the New York State Appellate million compared to the price at which the President sold hisDivision, First Department, held there is no exception to personal shares 2-3 days earlier. Id. at 516-17©2011 The Hedge Fund Law Report. All rights reserved.
HedgeFund The The definitive source of actionable intelligence on L AW R E P O RT hedge fund law and regulationwww.hflawreport.com Volume 4, Number 10 March 18, 2011The CCO promptly investigated the President’s trading, limitation in the individual contract of employment.’” Id. atas “front running” in violation of Peconic’s Code of Ethics, 518 (quoting Murphy v. American Home Prods., 58 N.Y.2dCompliance Manual and Form ADV. Peconic maintained a 293, 300 (1983)). The Court held that the Code of Ethicswritten Code of Ethics, required by 17 CFR § 275.206(4)- and Compliance Manual did not create a limitation on firing7, which prohibited personal trading that takes advantage of the CCO because neither explicitly protected the CCOinvestment opportunities that should first be given to clients, from retaliation, or otherwise contained “either an expressand required obtaining pre-clearance from the CCO. Id. at or implied right to continued employment” for reporting516. Importantly, § 1.2 of the Code affirmatively required internally. Id. Further, it held that that the requirementsthe CCO to investigate this activity, as a potential violation for the CCO to investigate and report fraud “merely suggestof the Code, “on pains of termination.” Id. at 516-17. standards” for performance of his duties. Id. at 519.However, neither Peconic’s Code of Ethics nor Compliancemanual specifically stated that the CCO was protected against More importantly, Sullivan held that a CCO’s role of ensuringbeing fired in retaliation. legal compliance cannot create an implied contract that the CCO would not be fired in retaliation for reportingThe CCO alleged that before he could complete his wrongdoing. Id. The Court relied on two factors. First, itinvestigation, the President fired him and the Deputy CCO. relied on judicial restraint against intruding on employmentId. at 517. Further, he alleged that the President deleted all relationships, reasoning that “any changes” limiting the at-willof the CCO’s computer data and trading logs. See id. The doctrine are a “public policy matter that should be made byCCO brought suit, alleging among other things that his the Legislature,” not courts. Id. at 518. Second, it notedtermination breached an implied contract with Peconic that that New York courts had only once implied an exceptionhe would not be fired in retaliation for investigating fraud. In to the at-will doctrine: where a law firm fired an attorney inthe lower court, he prevailed by persuading the court to reject retaliation for internally reporting wrongdoing. Id. at 519a motion to dismiss because his CCO duties may create “an (citing Wieder v. Skala, 80 N.Y.2d 628, 636 (1992)). But itexpress limitation” to the at-will rule, to protect him from distinguished that case as involving a unique “understandingretaliation for performing his duties. Id. at 517-18. But this so fundamental to the relationship and essential to its purposefinding was reversed on appeal. . . . that both the [attorney] and the firm in conducting the practice will do so in accordance with the ethical standardsOn appeal, the First Department in Sullivan held that of the profession.” Id. It refused to extend this reasoning to“any claims relying on the argument that [the CCO] was the CCO-hedge fund context, noting that the exception “hadwrongfully discharged cannot be entertained. Id. at 520. not been applied to a business or profession other than theSullivan reasoned that under New York law, employees like practice of law.” Id.the CCO are presumed to be “at-will” employees who canbe terminated for any reason “‘absent a constitutionally Sullivan’s key holding is controversial because SEC regulationsimpermissible purpose, a statutory proscription, or an express explicitly require investment advisers to hire CCO’s to serve a©2011 The Hedge Fund Law Report. All rights reserved.
HedgeFund The The definitive source of actionable intelligence on L AW R E P O RT hedge fund law and regulationwww.hflawreport.com Volume 4, Number 10 March 18, 2011fundamental role of administering and enforcing compliance reporting to the government, “not to one’s supervisor.” Id.with securities laws. They require covered hedge funds Thus, after Sullivan, hedge fund CCO’s are likely to have noto hire a “Chief Compliance Officer” to be “responsible state law remedy against retaliation for internally reportingfor administering the policies and procedures” regarding securities law violations.“violation . . . of the” federal securities laws. 17 C.F.R.§275.206(4)-7(a), (c) (Investment Adviser CCO); 17 C.F.R. Similarly, Sullivan’s holding likely applies to compliance§ 270.38a-1(a)(4) (Investment Company CCO). The SEC officers who have been trained as lawyers because New Yorkdefines the CCO’s duties as “administer[ing] compliance courts have already held that the at-will doctrine appliespolicies and procedures,” including having “a position of based on an employee’s position – not his training. See,sufficient seniority and authority within the organization e.g., Haviland v. J. Aron & Co., 212 A.D.2d 439, 440-41to compel others to adhere to the compliance policies and (1st Dep’t 1995) (refusing to apply lawyer-law firm at-willprocedures.” SEC Rel. No. IA-2204 at 10-11 (Dec. 17, exception to broker who had graduated law school and2003). Since the very reason for the existence of a hedge claimed he was hired for legal expertise, because he “was hiredfund CCO is to administer compliance with securities laws, as a broker, not as a lawyer”). Further, Sullivan’s holdingboth hedge funds and their CCO’s must know that a CCO’s arguably applies to hedge fund in-house legal counsel, becauseinternal reporting of securities law violations is “fundamental New York courts have held the attorney exception only appliesto the[ir] relationship and essential to its purpose.” Wieder, where both parties share “a common professional enterprise”80 N.Y.2d at 636. that “impose[s] a mutual obligation on the employer and the employee.” Horn, 100 N.Y.2d at 96. Because hedge funds doNevertheless, Sullivan’s holding is binding New York law, not practice law, and since in-house counsel is also a businessand is likely to have far reaching implications. For example, role, a court is less likely to imply an exception to the at-willSullivan will likely influence decisions in other key states like doctrine for them. But see Shearin v. E.F. Hutton Group,Delaware – where many hedge funds are registered – whose Inc., 652 A.2d 578, 588 (Del. Ch. 1994) (under Delawareexceptions to at-will employment are “narrowly drawn” law, in-house legal counsel had a claim for retaliatory firingand “generally statutory.” E.I. DuPont de Nemours & Co. v. for refusing to violate ethical duties because “the Rules ofPressman, 697 A.2d 436, 442 n.13 (Del. 1996). In particular, Professional Conduct” are an “implicit term of every lawyer’sDelaware’s Supreme Court has already narrowly construed a contract”).statute that requires employees to report wrongdoing to thegovernment as not protecting the employee from retaliation SEC Proposed Rules Require Compliance and Similar Key Personnel to Report Internally, Withoutfor internally reporting the wrongdoing. Lord v. Souder, 748 Specifying Federal Remedy for RetaliationA.2d 393, 401 (Del. 2000). In Lord, the court rejected awrongful termination claim by nursing home employee based The SEC has recently proposed rules for its whistlebloweron a Delaware statute requiring her to report nursing home program that aim to bolster internal hedge fund complianceabuse or neglect, because the statute’s terms only addressed programs by requiring compliance, audit and legal employees©2011 The Hedge Fund Law Report. All rights reserved.
HedgeFund The The definitive source of actionable intelligence on L AW R E P O RT hedge fund law and regulationwww.hflawreport.com Volume 4, Number 10 March 18, 2011to report wrongdoing internally before becoming eligible for effective internal compliance programs. This will providea reward. They would prohibit a whistleblower reward for the benefits of enabling hedge funds to identify and rootinformation received “from . . . an entity’s legal, compliance, out wrongdoing at an early stage, sometimes nipping it inaudit or other similar functions or processes for identifying, the bud and preventing future fraud. Further, it enablesreporting and addressing potential noncompliance with law,” hedge funds to avoid the legal costs and reputational damageunless it was first reported internally and an employer acts of an SEC investigation by taking internal action to stopin bad faith or did not report to the SEC in a reasonable wrongdoing, and self-reporting to the SEC.time. Proposed Rule 21F-4(b)(4)(v).  Additionally, theywould make employees “with legal, compliance, audit, But by failing to clarify whether these employees havesupervisory, or governance responsibilities” ineligible to be a remedy against retaliation for internal reporting, thewhistleblowers for information “communicated . . . with the SEC risks putting them in a Catch-22 situation that canreasonable expectation that [they] would cause the entity discourage them from robustly investigating or reportingto respond appropriately” unless they first report internally wrongdoing that could pose a threat to their employer.and the entity acts in bad faith or fails to disclose to the Nowhere in its proposed rule’s 180-page release does theSEC in a reasonable time. Proposed Rule 21F-4(b)(4) SEC suggest, or seek comment about, protections for(iv). Unfortunately, these proposed rules do not clarify that key employees against being fired or otherwise retaliatedemployees have a legal remedy for retaliation for reporting against for internally reporting wrongdoing. SEC Rel. No.internally. 63237. This is striking, since the SEC does acknowledge that some employees “do not avail themselves” of “internalThe SEC’s proposed rules seek to balance two competing whistleblower, legal or compliance” programs “for feargoals. First, they seek “to facilitate the operation of effective of retaliation.” Id. at 51. If the SEC is going to makeinternal compliance programs by not creating incentives for internal reporting by these employees a requirement for thecompany personnel to seek a personal financial benefit by whistleblower program, then it is only fair to clarify that they‘front running’ internal investigations and similar processes have a remedy against retaliation for doing so.that are important components of effective companycompliance programs.” SEC Rel. No. 63237 at 25-26. The Dodd-Frank Act does not specify that it protectsSecond, they are intended to “permit such persons to act as employees from retaliation for internally reportingwhistleblowers in circumstances where the company knows wrongdoing. It states that it bars retaliation for “any lawfulabout material misconduct but has not taken appropriate act done by the whistleblower – (i) in providing informationsteps to respond.” Id. at 26. to the Commission . . . ; [or] (ii) in . . . assisting in any investigation . . . based upon or related to such information .By requiring compliance, audit and legal employees to report . . .” 15 U.S.C. § 78u-6(h)(1)(A). Courts could reasonablyinternally, the proposed rules ensure hedge funds will in most interpret this language as barring only retaliation for reportingcases have the first opportunity to address fraud through to the SEC – “not to a supervisor.” Lord, 748 A.2d at 401.©2011 The Hedge Fund Law Report. All rights reserved.
HedgeFund The The definitive source of actionable intelligence on L AW R E P O RT hedge fund law and regulationwww.hflawreport.com Volume 4, Number 10 March 18, 2011Even if courts could interpret “any lawful act done” to cover collecting key information of wrongdoing, when they are bestretaliation for internal reporting, the case law interpreting a able to collect the information most valuable to an internalsimilar provision under the False Claims Act (FCA) shows it investigation or SEC whistleblower case. Further, the lackwill still be difficult for compliance, audit and legal employees of a retaliation remedy will embolden hedge funds engagedto bring a retaliation claim. The FCA whistleblower law in wrongdoing to fire key employees upon any early internalbars retaliation for “lawful acts done . . . in furtherance report of wrongdoing, both to obstruct an investigation andof an action under this section or other efforts to stop 1 to preempt an employee from providing reasonable notice of aor more violations” of the FCA. 31 U.S.C. § 3730(h) whistleblower claim. It is no answer that a fired employee can(1). Several courts have interpreted this language to protect still seek a whistleblower reward, because the very uncertainagainst retaliation for “internal reporting” or an internal prospect of a reward after years of investigation and legal“investigation.” Yesudian v. Howard Univ., 153 F.3d 731, proceedings is unlikely to justify risking one’s job. Thus, the740 & n.9 (D.C. Cir. 1998). But courts have strictly lack of a clear anti-retaliation remedy for internal reportinglimited retaliation claims by employees involved in internally will not only hurt key employees, but also frustrate internalinvestigating or reporting wrongdoing to cases where they compliance programs and the whistleblower process itself.“expressly stat[e] an intention to bring a” whistleblower claimor “put the employer on notice that litigation is a reasonable Conclusionpossibility.” Eberhardt v. Integ. Design & Constr., Inc., 167 Sullivan v. Harnisch bolsters internal hedge fund complianceF.3d 861, 868 (4th Cir. 1999).  Notably, courts have programs in the post-whistleblower era by clarifying that hedgerejected retaliation claims by such employees, even where funds can require compliance personnel to internally reportthey told employers wrongdoing was “‘illegal, ‘improper,’ and wrongdoing, while such personnel have no state law remedy for‘fraudulent,’” Brandon v. Anesthesia & Pain Mgmt. Assocs., retaliation. Similarly, the SEC’s proposed whistleblower rulesLtd., 277 F.3d 936, 944-45 (7th Cir. 2002). The lack of eliminate incentives for compliance, legal and audit employeesa clear anti-retaliation remedy is more problematic in the to bypass internal compliance processes by requiring them toSEC whistleblower context because the FCA does not require internally report first to become eligible as a whistleblower.employees to report internally before bringing a whistleblower But these two developments leave such employees in aqui tam action. Catch-22 of having to report wrongdoing internally without a clear state or federal remedy for retaliation. In the long run,The SEC’s proposed rules subject hedge fund compliance, this will harm internal compliance programs by discouraginglegal and audit employees to a Catch-22 of being required these employees from providing meaningful internal reports orto internally report wrongdoing without a legal remedy investigations of wrongdoing to avoid being fired in retaliationfor retaliation. These employees will thus have a strong with no remedy. By clarifying that these employees have aincentive to downplay an internal report of wrongdoing, meaningful remedy against such retaliation, the SEC wouldor investigate less diligently, to avoid posing a threat to an further bolster internal compliance programs and emboldenemployer. This will also discourage these employees from these employees to do their jobs more effectively.©2011 The Hedge Fund Law Report. All rights reserved.
HedgeFund The The definitive source of actionable intelligence on L AW R E P O RT hedge fund law and regulationwww.hflawreport.com Volume 4, Number 10 March 18, 2011Sam Lieberman is Of Counsel in the Litigation Group at Sadis &  New York courts note that its legislature has adoptedGoldberg LLP. He has extensive experience handling all stages of express statutory protections against retaliation in otherhigh-profile securities class actions, complex commercial litigation, and areas, but not here. See Horn v. New York Times,100 N.Y. 2dgovernment investigations. Mr. Lieberman has served as lead counsel 85, 96 (2003); see also Executive Law § 296(1)(e) (barringpresenting argument on behalf of clients at the trial and appellate retaliation for opposing unlawful discrimination underlevels. In addition, he has represented individuals and investment Human Rights Law); Labor Law § 215 (barring retaliatoryadvisers in civil and criminal investigations by the SEC and the U.S. discharge for reporting Labor Law violations); Civil ServiceAttorney’s office. Mr. Lieberman has litigated securities actions on Law § 75-b (barring retaliatory discharge of whistleblowerbehalf of plaintiffs and defendants involving a wide array of matters, public employees). Similarly, New York courts have citedincluding subprime mortgage-backed securities, stock option backdating, the legislature’s rejection of statutes barring retaliation formarket-timing, late-trading, accounting irregularities, insider trading, disclosing legal violations posing a danger to public health/ safety, disclosing illegal or hazardous employer activities,market manipulation, channel-stuffing and alleged false financial or taking actions benefiting the general public. Murphy, 58disclosures. He has also handled numerous mergers and acquisitions N.Y.2d at 302 n.1.disputes involving key issues of corporate governance and shareholder  New York courts have refused to infer an exception to therights. In addition, Mr. Lieberman has represented clients in SEC and at-will doctrine for a commodities broker with a law degree, aU.S. Attorney’s office investigations in various matters including alleged physician, a brokerage house auditor, a corporation’s in-housesecurities fraud, mail fraud, wire fraud and tax evasion. accountant and a corporation’s director of financial products. Haviland v. J. Aron & Co., 212 A.D.2d 439, 440-41 (1stJennifer Rossan is a Partner in the Litigation Group at Sadis & Dep’t 1995); Horn v. New York Times, 100 N.Y.2d 85, 95-96Goldberg LLP. Prior to joining Sadis & Goldberg, Ms. Rossan was (2003); Mulder v. Donaldson, Lufkin and Jenrette, 208 A.D.2dSenior Counsel for the New York City Law Department, Office of the 301, 306 (1st Dep’t 1995); Murphy v. American Home Prods.Corporation Counsel. At Corporation Counsel, Ms. Rossan, a senior Corp., 58 N.Y.2d 293, 302 (N.Y. 1983).trial lawyer, defended the City of New York and the New York City  SEC regulations also bar investment companies fromPolice Department in matters involving high exposure and complex taking “action to coerce, manipulate, mislead, or fraudulentlyand novel policy issues, including police shootings and large class influence the fund’s chief compliance officer.” 17 C.F.R. §action lawsuits. Ms. Rossan tried numerous cases to verdict in federal 270.38a-1(c).court with outstanding results. In addition to her trial experience,  SEC Rel. No. 63237, Proposed Rules for ImplementingMs. Rossan has extensive experience in all aspects of litigation, the Whistleblower Provisions of Section 21F of the Securitiesincluding comprehensive document productions, electronic discovery, Exchange Act of 1934, (Nov. 3, 2010), available at http://motion practice, oral argument and settlement negotiations. While www.sec.gov/rules/proposed/2010/34-63237.pdf (hereinafterat Corporation Counsel, Ms. Rossan supervised junior attorneys and “SEC Rel No. 63237”).taught continuing legal education classes on all facets of trial practice.  The SEC’s release makes clear that this exclusion applies to any information received from “personnel involved in©2011 The Hedge Fund Law Report. All rights reserved.
HedgeFund The The definitive source of actionable intelligence on L AW R E P O RT hedge fund law and regulationwww.hflawreport.com Volume 4, Number 10 March 18, 2011compliance or similar functions.” SEC Rel No. 63237 at 33. job responsibilities involve overseeing [legal compliance], his Dodd-Frank’s anti-retaliatory provision is narrower, as it burden of proving that his employer was on notice that hedoes not include the FCA’s broader “in furtherance of ” or was engaged in protected conduct should be heightened.”);“other efforts to stop 1 or more violations” language. Compare Hutchins v. Wilentz, Goldman & Spitzer, 253 F.3d 176, 19115 U.S.C. 78u-6(h)(1) with 31 U.S.C. § 3730(h)(1). (3rd Cir. 2001) (same). Accord McKenzie v. BellSouth Telecommunications, Inc.,  Accord McKenzie v. BellSouth Communications, 219123 F.3d 935, 944 (6th Cir. 1997); Childree v. UAP/GA AG F.3d 508, 516-17 (6th Cir. 2000) (rejecting claim whereCHEM, Inc., 92 F.3d 1140, 1146 (11th Cir.1996); Hopper employee repeatedly warned supervisors of widespread fraudv. Anton, 91 F.3d 1269 (9th Cir. 1996); Ramseyer v. Century and warned of Florida Attorney General consumer fraudHealthcare Corp., 90 F.3d 1514, 1523 & n.7 (10th Cir. 1996); investigation); Zahodnick v. IBM, 135 F.3d 911, 914 (4th Cir.Neal v. Honeywell Inc., 33 F.3d 860, 864 (7th Cir.1994); 1997) (rejecting claim where employee reported to supervisorRobertson v. Bell Helicopter Textron, Inc., 32 F.3d 948, 951 company’s overcharging of government and sought to change(5th Cir. 1994). practice); Ramseyer, 90 F.3d at 1523 (rejecting claim because Accord Yuhasz v. Brush Wellman, Inc., 341 F.3d 559, 567- employee did not threaten whistleblower action or report to68 (6th Cir.2003); Ramseyer, 90 F.3d at 1523; Robertson, 32 government). Other courts hold it is sufficient to ask for theF.3d at 951-52; see also Maturi v. McLaughlin Research Corp., company to engage legal counsel. See, e.g., Eberhardt, 167413 F.3d 166, 173 (1st Cir. 2005) (“[W]here an employee’s F.3d at 869.©2011 The Hedge Fund Law Report. All rights reserved.