by Stephen Kohn
The SEC has a web page, “FCPA Spotlight,” located at www.sec.gov/spotlight/fcpa.shtml. The SEC’s website also contains a list of every foreign company that sells stocks to Americans under the American Depository Receipt program.
An FCPA violation also implicates the following laws, which can give rise to additional penalties: Sarbanes-Oxley Act, Section 302 (15 U.S.C. § 7241) (accuracy of financial reports); Section 404 (15 U.S.C. § 7262) (internal controls over financial reporting); Travel Act (18 U.S.C. § 1952); as well as laws covering money laundering, mail and wire fraud, false certifications, and violations of the Internal Revenue Code.
INTERNATIONAL BANKERS/ILLEGAL U.S. ACCOUNTS
John A. Koskinen, Commissioner, Internal Revenue Service, Remarks at the U.S. Council for International Business–OECD International Tax Conference (June 3, 2014); available at www.irs.gov/PUP/irs/Commissioner%20Koskinen’s%20Remarks%20at%20US%20CIB%20and%20OECD%20Int%20Tax%20Conf%20June%202014.pdf.
Matthew Allen, “Swiss-U.S. Tax Evasion Saga: Where Are We Now?” (January 2016); www.swissinfo.ch/eng/business/unfinished-business_swiss-us-tax-evasion-saga--where-are-we-now-/41924910.
IRS Press Release, “Offshore Compliance Programs Generate $8 Billion.”
Documentation regarding the impact of Bradley Birkenfeld’s whistleblowing is set forth in Stephen Kohn’s article “$13.769 Billion Reasons to Thank Whistleblowers on Tax Day” (April 18, 2016); www.whistleblowersblog.org/2016/04/articles/news/13-769-billion-reasons-to-thank-whistleblowers-on-tax-day/.
OCEAN POLLUTION/ACT TO PREVENT POLLUTION FROM SHIPS (APPS)
The APPS whistleblower reward provision is codified at 33 U.S.C. § 1908(a).
The International Convention for the Prevention of Pollution from Ships (MARPOL 73/78) is available at http://library.arcticportal.org/1699/1/marpol.pdf.
A practical guide to the MARPOL convention is available at https://madden-maritime.files.wordpress.com/2015/08/marpol-practical-guide.pdf.
U.S. DOJ, Environment and Natural Resources Division. A motion requesting 50 percent whistleblower reward in U.S. v. Overseas Shipholding Group, Inc., 06-CR-10408 (D. Mass, March 15, 2007) is available at www.globalwhistle-blower.org.
Michael G. Chalos and Wayne Parker, “The Criminalization of MARPOL Violations and Maritime Accidents in the United States,” 23 University of San Francisco Maritime Law Journal 206 (Fall 2011). Although antiwhistleblower in tone and content, this article sets forth the various laws and legal standards applicable to APPS prosecutions.
“Avoiding the APPS Magic Pipe Trap,” Officer of the Watch website (November 14, 2012), offers another antiwhistleblower position; https://officerofthewatch.com/2012/11/14/avoiding-the-apps-magic-pipe-trap/.
A detailed listing of APPS cases for which rewards were paid (including copies of the indictments, plea agreements, and whistleblower reward filings) is posted at https://www.kkc.com/laws%2c-statues-and-regulations/ocean-pollution-%28apps002fmarpol%29.pdf
The Marine Defenders organization publishes information on APPS whistleblower rules, and also has a handbook designed to help seamen involved in government investigations. See www.marinedefenders.com/commercial/rewards.php.
U.S. v. Efploia Shipping Co. S.A., Case 1:11-cr-00652-MJG, Bench Decision Re: Whistleblower Award (ECF Doc. 80) (D. Maryland) (April 25, 2016). The Court discussed congressional intent behind the APPS whistleblower provision and the fact that most, if not all, APPS prosecutions come from evidence provided by whistleblowers.
DOJ press release regarding the Efploia Shipping Company and Aquarosa Shipping case is available at www.justice.gov/opa/pr/two-shipping-corporations-plead-guilty-and-are-sentenced-maryland-obstruction-justice-and.
POLITICAL ASYLUM
In interpreting the U.S. immigration laws, numerous courts have recognized that persons who blow the whistle in their foreign countries can, under certain circumstances, obtain political asylum in the United States. The first case to recognize whistleblowing as a potential justification for political asylum was Grava v. INS, 205 F.3d 1177 (9th Cir. 2000). Antonyan v. Holder, 642 F.3d 1250 (9th Cir. 2011) broadened the scope of the Grava holding.
Since 2000 the Grava case has been followed in other federal court jurisdictions that considered this issue. See, for example, Bu v. Gonzales, 490 F.3d 424 (6th Cir. 2007); Cao v. Attorney General, 407 F.3d 146 (3rd. Cir. 2005); Rodas Castro v. Holder, 597 F.3d 93 (2nd Cir. 2010); Haxhiu v. Mukasey, 519 F.3d 685 (7th Cir. 2008); Hayrapetyan v. Mukasey, 534F.3d 1330 (10th Cir. 2008); Zhu v. Mukasey, 537 F.3d 1034 (9th Cir. 2008).
Aimee L. Mayer-Salins, “Asylum and Withholding of Removal Claims Involving Corruption and Whistleblowing,” published in DOJ newsletter Immigration Law Advisor; available at www.justice.gov/sites/default/files/eoir/pages/attachments/2015/02/26/vol9no2ed.pdf.
Information on the Canadian offshore tax reward program is published online by the Canadian Revenue Agency, at http://www.cra-arc.gc.ca/gncy/cmplnc/otip-pdife/menu-eng.html.
Information on the Ontario Securities Commission’s whistleblower program is located online at http://www.osc.gov.on.ca/en/whistleblower.htm.
RESOURCES FOR WHISTLEBLOWERS
The author has created an online resource that links to the key statutes, cases and supporting materials cited to in the Handbook. To obtain access to this on-line library go to www.kkc.com/Handbook.
Commodity Futures Trading Commission
Three Lafayette Centre
1155 21st St. NW
Washington, DC 20581
www.cftc.gov
www.whistleblower.gov (website for Office of the Whistleblower)
Website of information on filing claims for rewards under the Dodd-Frank Act. Rewards claims related to fraud in the commodities markets. Rewards must be filed in accordance with the rules published by this Commission.
Department of Defense
Office of Inspector General
Defense Hotline Compliance Complaints
www.dodig.mil/HOTLINE
Information on filing a DoD-related whistleblower complaint, including complaints related to national security issues.
Department of Justice
Civil Division
Commercial Litigation Branch
Civil Fraud Section
www.justice.gov/civil/frauds
Information on the False Claims Act, including an online primer outlining the law and press releases on DOJ cases.
Equal Employment Opportunity Commission (EEOC)
1801 L St. NW
Washington, DC 20507
www.eeoc.gov
The EEOC has jurisdiction over the antiretaliation laws governing traditional employment discrimination matters such as race, sex, or age. The website provides detailed instructions on filing complaints, analysis of legal rights, and reprint copies of major employee protection laws.
Federal Aviation Administration (FAA)
800 Independence Ave. SW
Washington, DC 20591
www.faa.gov.gov/about/initiatives/whistleblower
The FAA website on the airline whistleblower law includes a page entitled “How do I file a whistleblower complaint?”
Inspectors General
Ignet/Federal Inspectors General Web Page
www.ignet.gov
This website contains a central point of contact for all fifty-seven Offices of Inspector General and contact points for OIG oversight bodies. The Inspectors General have responsibility for investigating waste, fraud, and abuse in federal programs.
Internal Revenue Service
Whistleblower Office
SE: WO 1111
Constitution Ave. NW
Washington, DC 20224
http://irs.gov/compliance
www.irs.gov/uac/whistleblower-informant-award (Office of the Whistleblower web page)
The IRS Whistleblower Office’s website has information on informant awards and useful links, including links to the tax whistleblower statute and the official government forms used for filing IRS whist
leblower reward claims.
Merit Systems Protection Board
1615 M Street, N.W.
Washington, D.C. 20419
(202) 653-7200
(202) 653-7130 (Fax)
email: [email protected]
website: www.mspb.gov
The MSPB has jurisdiction over all Whistleblower Protection Act cases filed by federal employees.
National Whistleblower Legal Defense
and Education Fund/National Whistleblower Center
3238 P St. NW
Washington, DC 20007-2756
Phone: 202-342-1902
www.whistleblowers.org
The National Whistleblower Legal Defense and Education Fund and the National Whistleblower Center (NWC) work together to promote stronger legal protections for whistleblowers. Their website provides information on legislative updates, advocacy alerts, publications, attorney referrals, and employee rights.
U.S. Department of Justice
Freedom of Information Act Homepage
www.usdoj.gov/04foia
The Department of Justice web page on the Freedom of Information Act (FOIA) lists FOIA contact personnel at every federal agency and provides detailed information on filing FOIA requests.
U.S. Department of Labor
Occupational Safety and Health Administration (OSHA)
200 Connecticut Ave. NW
Washington, DC 20210
www.osha.gov
www.whistleblowers.gov (OSHA Whistleblower Programs web page)
The OSHA website contains information regarding worker complaints and resources under DOL-administered whistleblower statutes. OSHA has a special whistleblower rights web page published by the Office of Whistleblower Protection Program. The page links to the nineteen federal whistleblower laws for which OSHA is responsible, along with controlling regulations.
U.S. Department of Labor
Office of Administrative Law Judges (OALJ)
800 K St. NW, Ste. 400N
Washington, DC 20210
www.oalj.dol.gov
The OALJ conducts administrative adjudications under numerous federal whistleblower laws (including corporate and environmental). This site contains copies of DOL OALJ rulings, administrative procedures, and a periodic newsletter highlighting DOL whistleblower decisions. It is a key online resource for all whistleblower laws administered by the Department of Labor.
U.S. Military
Office of Naval Inspector General
Building 172
1254 Ninth St. SE
Washington DC Naval Yard, 20374
www.ig.navy.mil/complaints
The Navy’s Office of Inspector General publishes information on military whistleblowing, including links to the military whistleblower law and regulations and a link to the Department of Defense Inspector General.
U.S. Office of Special Counsel
1730 M St. NW, Ste. 201
Washington, DC 20036-4505
www.osc.gov
The Office of Special Counsel (OSC) website contains information on the Whistleblower Protection Act (WPA), the law that covers most federal employee whistleblowers The site contains the OSC Form 11, which federal employees must use to file WPA claims with OSC.
U.S. Securities and Exchange Commission
SEC Office of the Whistleblower
100 F St. NE
Mail Stop 5971
Washington, DC 20549
Fax number: 703-813-9322
www.sec.gov/whistleblower
The SEC’s Whistleblower Office has an online process for filing complaints with the SEC and also contains information and links related to the Dodd-Frank whistleblower provisions. The website contains information on how to file whistleblower reward claims in accordance with SEC rules.