7 U.S.C. § 26 — Commodity whistleblower incentives and protection

(a) Definitions: (1) "Covered judicial or administrative action" means an enforcement case the Commission brings under this chapter that results in monetary sanctions over $1,000,000. (2) "Fund" means the Commodity Futures Trading Commission Customer Protection Fund set up under subsection (g). (3) "Monetary sanctions" means (A) any penalties, disgorgement, restitution, or interest ordered to be paid; plus (B) money deposited into a disgorgement fund or similar fund under a related securities-law provision, as a result of that action or its settlement. (4) "Original information" means information that (A) comes from the whistleblower's own independent knowledge or analysis; (B) the Commission doesn't already know from another source, unless the whistleblower is that original source; and (C) isn't taken purely from an allegation in a lawsuit, a government report, hearing, audit, or investigation, or from news media — unless the whistleblower is also a source for that. (5) "Related action" means an enforcement case brought by certain other government entities listed elsewhere in this section, based on the same original information that led to the Commission's successful case. (6) "Successful resolution" includes a settlement of the action. (7) "Whistleblower" means one individual, or two or more people acting together, who give the Commission information about a violation of this chapter, in the manner the Commission requires by rule. (b) Awards: (1) In a covered action or related action, the Commission must pay an award to one or more whistleblowers whose voluntary original information led to the case's successful enforcement. The total award must be at least 10%, and no more than 30%, of what has been collected in monetary sanctions in the action or related actions. (2) These awards are paid out of the Fund. (c) Determining the amount of an award, or denying one: (1) (A) The exact award amount is up to the Commission's discretion. (B) In deciding, the Commission must consider: how significant the whistleblower's information was to the case's success; how much help the whistleblower and their legal representative gave; the Commission's interest in deterring future violations by rewarding whistleblowers; and any other relevant factors it sets by rule — but it must not consider how much money is currently in the Fund. (2) No award is made to a whistleblower who: (A) was, at the time they got the information, a member, officer, or employee of an appropriate regulatory agency, the Department of Justice, a registered trading entity, a registered futures association, a self-regulatory organization, or a law enforcement organization; (B) is convicted of a crime related to the action; (C) submits information based on facts another whistleblower already submitted; or (D) fails to submit the information in the form the Commission requires. (d) Representation: (1) A whistleblower claiming an award may be represented by a lawyer. (2) (A) A whistleblower who claims an award anonymously must be represented by a lawyer when submitting the underlying information. (B) Before an award is paid, the whistleblower must reveal their identity and provide any other information the Commission requires, either directly or through their lawyer. (e) No contract with the Commission is needed for a whistleblower to receive an award, unless the Commission requires one by rule. (f) Appeals: (1) Every decision under this section — including whether, to whom, and in what amount to make awards — is up to the Commission's discretion. (2) That decision can be appealed to the appropriate federal court of appeals, within 30 days of the Commission's decision. (3) The court reviews the Commission's determination under the standard set out in title 5, section 706. (g) Commodity Futures Trading Commission Customer Protection Fund: (1) A revolving fund is created in the U.S. Treasury, called the Commodity Futures Trading Commission Customer Protection Fund. (2) The Commission can use the Fund, without needing a new appropriation, to (A) pay whistleblower awards, and (B) fund customer-education programs that help people protect themselves from fraud. (3) Money deposited into or credited to the Fund includes: (A) monetary sanctions the Commission collects in a covered action, that aren't otherwise paid to victims — unless the Fund already holds more than $100,000,000; (B) if that isn't enough to cover an award, additional money from any related monetary sanction the Commission collects, based on whistleblower information; and (C) income earned on the Fund's investments. (4) Investments: (A) the Commission may ask the Treasury Secretary to invest money in the Fund that isn't currently needed; (B) investments must be in U.S. government obligations or obligations the U.S. guarantees, with maturities suited to the Fund's needs; (C) interest and sale proceeds from those investments go back into the Fund. (5) By October 30 each year, the Commission must send Congress a report covering: (A) the whistleblower award program's activity that year; (B) customer-education programs the Fund paid for; (C) the Fund's balance at the start of the year; (D) money added to the Fund; (E) investment earnings; (F) money paid to whistleblowers; (G) money spent on customer education; (H) the Fund's balance at year's end; and (I) a full set of audited financial statements. (h) Protection of whistleblowers: (1) No retaliation: (A) An employer may not fire, demote, suspend, threaten, harass, or otherwise discriminate against a whistleblower for lawfully giving information to the Commission or helping with a related investigation or case. (B) Enforcement: (i) Someone facing retaliation may sue in federal district court, except that a federal government employee must instead sue under title 5, section 1221. (ii) Subpoenas for witnesses in this kind of case may be served anywhere in the United States. (iii) The lawsuit must be filed within 2 years of the retaliation. (C) A person who wins is entitled to: (i) reinstatement with the seniority they would have had; (ii) back pay with interest; and (iii) compensation for other losses, including litigation costs, expert witness fees, and reasonable attorney's fees. (2) Confidentiality: (A) Except as allowed in (B) and (C), the Commission and its staff may not disclose information — including information a whistleblower provided — that could reasonably reveal the whistleblower's identity, except as the Privacy Act allows, unless disclosure becomes required for a public proceeding; this counts as an exemption from the Freedom of Information Act. (B) This does not stop the Attorney General from presenting evidence to a grand jury, or sharing it with witnesses or defendants during an ongoing criminal investigation. (C) (i) The Commission may, at its discretion, share this confidential information — without it losing its confidential status — with the Department of Justice, other federal agencies acting within their authority, certain registered trading entities or self-regulatory organizations, a state attorney general investigating a crime, other state agencies acting within their authority, and foreign futures regulators. (ii) Each of those recipients must also keep the information confidential. (iii) The Commission's Inspector General had to study whether this confidentiality exemption actually helps whistleblowers, what effect it has on the public's ability to get information about the Commission's regulation of commodity markets, and whether the Commission should keep using it — and had to report the results to Congress and publish them within 30 months of July 21, 2010. (3) Nothing in this section reduces any rights, privileges, or remedies a whistleblower has under other federal or state law, or under a union contract. (i) The Commission may issue whatever rules and regulations are needed to carry out this section. (j) The Commission had to issue final implementing rules within 270 days of July 21, 2010. (k) Information does not lose its status as "original information" just because a whistleblower submitted it before the implementing rules took effect, as long as it was submitted after July 21, 2010. (l) A whistleblower may receive an award under this section even if the violation happened before July 21, 2010. (m) Anyone who knowingly and willfully gives the Commission a false, fictitious, or fraudulent statement, or uses a false document, is not entitled to an award under this section and can be criminally prosecuted under 18 U.S.C. § 1001. (n) Nonenforceability of certain waivers and arbitration clauses: (1) No agreement, company policy, or condition of employment can make someone waive the rights and remedies given by this section. (2) No agreement requiring arbitration of a dispute under this section, made before the dispute arose, is valid or enforceable.