Everyone generally agrees that people and organizations should be able to protect their proprietary and valuable information. But one area where we've seen legislative fretting is when that principle potentially impedes reporting wrongdoing to the government. As we have previously blogged, Congress and many state legislatures are exploring (or, in some cases, already enacted) legislative protections for reporting suspected misconduct to the government. And, at the federal level, Congress enacted the Defend Trade Secrets Act, which provides immunity for the disclosure of a trade secret if made in confidence to an attorney or government official for the purpose of investigating a suspected violation of law.
The Securities and Exchange Commission ("SEC"), which is understandably bullish on whistleblower protections, has also enacted regulations to further support whistleblowers. The SEC promulgated a rule—Exchange Act Rule 21F-17(a)—that prohibits any person from taking any action to prevent an individual from contacting the SEC directly to report a possible securities law. Specifically, the rule provides that "[n]o person may take any action to impede an individual from communicating directly with the Commission staff about a possible securities law violation, including enforcing, or threatening to enforce, a confidentiality agreement . . . with respect to such communications."
Since 2015, the SEC has brought at least 14 enforcement actions involving Exchange Rule 21F-17(a)....
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