Friday, January 14, 2011

Emails to other whisteblower commenters

[I sent the below form of email to most of the listed persons (other than those submitting comments in their personal capacity and who did not give contact information).]

Subj:  Your comments on the SEC whistleblower rules

Dear ____________,

I am a fellow commenter (my comment is here). 
The law frequently entails the consideration and balancing of potentially competing interests, and the whistleblower rules are in this vein.  As the SEC said  in its press release, "The proposed rule reflects the consideration of a number of potentially competing interests, and balances the need to encourage whistleblowers to come forward without promoting unintended consequences." 

You, and many other commenters, have been very assiduous (verbose one might even say) in performing needed balancing exercises in offering suggestions for the whistleblower rules. 

My comment I submitted to the SEC on January 3rd takes a different tack from most others, and may even be unique in what it advocates. It takes a step back from the proposed rules and states:
It is submitted that (i) in dealing with corporate wrongdoing, the law is unacceptably deficient from a deterrence standpoint in the way the law fails to punish officers, employees and other individuals who participate in and are responsible for the design, implementation, and carrying out of corporate acts that comprise corporate wrongdoing, (ii) the law is mistaken in its willingness to assume punishment of a corporation can achieve adequate deterrence, and (iii) the law fosters a mindset and a willingness of some persons to take advantage of the foregoing deficiencies and to benefit from them at the expense of innocent parties, such as shareholders . Until these deficiencies are addressed by lawmakers, regulators, judges and others, there will be similar deficiencies connected with the whistleblower program, the program will fall short in achieving deterrent objectives, and the program will be at risk of being unduly exploited for personal gain and benefit in a fashion similar to that referred to in the preceding sentence.

Accordingly, lawmakers, regulators and others should first correct the foregoing deficiencies in the law before the proposed whistleblower program is put in place.
The main driver of my comment is the regime of class action litigation that prevails in the country. 

I think the class action litigation regime has a number of important, and sometimes competing, public policy goals and is deserving, even more so than the whistleblower rules because of the greater impact of the former, of assiduous "balancing"  of "competing interests" and avoiding "unintended consequences;"  however, in contrast to the meticulous balancing that commenters and the SEC are going through in the narrow niche of the whistleblower rules, I think there has been a gross absence of balancing, by lawmakers, judges, lawyers, public policy advocates and scholars, and others, of the important, and sometimes competing, public policy goals the civil law is supposed to serve.  In my view, those persons have not been mindful of the potential for harm that an "unbalanced" class action litigation regime presents. The risks include compensating plaintffs' lawyers in a way that creates incentives for, and that has resulted in, (i) disregarding distinctions between intentional wrongdoers, negligent wrongdoers and innocent parties, especially in the context of corporations comprised of a conglomeration of officers, employees, shareholders and customers, (ii) irrational in terrorum levels of potential liability and legal cost that improperly coerce unjust settlement payments, particularly from inadequately represented innocent parties, (iii) avoidance of determinations of wrongdoing in cases at bar and a concomitant avoidance of putting the world on notice about what is wrongful and what is not wrongful, so that any action or decision going forward can be subject to extracting a settlement payment ex post facto, (iv) disregard of rational cost/benefit principles, (v) impairment of deterrence by distracting attention from, and diverting available resources away from, imposing punishment on culpable officers and employees, and (vi) blindness to a matrix of societal mechanisms that should be working in tandem for achieving objectives of providing compensation  to harmed parties and of deterrence (such mechanisms including, besides civil liability, private insurance, governmental and charitable welfare, natural disaster relief, the criminal law and criminal prosecutors, state attorneys general, and regulatory agencies).

While I commend you, other commenters, and the SEC for sensitivities to proper balancing being accomplished in the whistleblower rules, I fault many lawmakers, judges, lawyers, and policy advocates and scholars, for, in my view, a colossal failure to bring similar perspicacity to the establishment and maintenance of the class action litigation regime.  As my January 3rd comment points out, I believe that failure is relevant to the whistleblower rules. 

I hope, by means of my January 3rd comment, and other communications, such as this email, I am able to inform and persuade others about my advocacy.

Thank you for your attention.

Robert Shattuck

No comments: