[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 3975 Introduced in Senate (IS)]
<DOC>
116th CONGRESS
2d Session
S. 3975
To amend the Consumer Financial Protection Act of 2010 to provide for
whistleblower incentives and protection.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
June 17, 2020
Ms. Cortez Masto (for herself, Mr. Brown, Ms. Warren, Ms. Smith, Mr.
Durbin, Mr. Merkley, Mr. Wyden, and Mr. Blumenthal) introduced the
following bill; which was read twice and referred to the Committee on
Banking, Housing, and Urban Affairs
_______________________________________________________________________
A BILL
To amend the Consumer Financial Protection Act of 2010 to provide for
whistleblower incentives and protection.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Financial Compensation for CFPB
Whistleblowers Act''.
SEC. 2. BUREAU WHISTLEBLOWER INCENTIVES AND PROTECTION.
(a) In General.--The Consumer Financial Protection Act (12 U.S.C.
5481 et seq.) is amended by adding at the end of section 1017 the
following:
``SEC. 1017A. WHISTLEBLOWER INCENTIVES AND PROTECTION.
``(a) Definitions.--In this section:
``(1) Administrative proceeding or court action.--The term
`administrative proceeding or court action' means any judicial
or administrative action brought by the Bureau that results in
monetary sanctions exceeding $1,000,000.
``(2) Fund.--The term `Fund' means the Consumer Financial
Civil Penalty Fund established under section 1017(d)(1).
``(3) Monetary sanctions.--The term `monetary sanctions'
means, with respect to any administrative proceeding or court
action, any monies, including penalties, disgorgement,
restitution, interest, ordered to be paid or other amounts of
relief obtained under section 1055(a)(2).
``(4) Original information.--The term `original
information' means information that--
``(A) is derived from the independent knowledge or
analysis of a whistleblower;
``(B) is not known to the Bureau from any other
source, unless the whistleblower is the original source
of the information;
``(C) is not exclusively derived from an allegation
made in a judicial or administrative hearing, in a
governmental report, hearing, or from the news media,
unless the whistleblower is a source of the
information; and
``(D) is not exclusively derived from an allegation
made in an audit, examination or investigation.
``(5) Successful enforcement.--The term `successful
enforcement' includes, with respect to any administrative
proceeding or court action brought by the Bureau, any
settlement of such proceeding or action.
``(6) Whistleblower.--The term `whistleblower' means any
individual, or 2 or more individuals acting jointly, who
provides original information relating to a violation of
Federal consumer financial law, consistent with any rule or
regulation issued by the Bureau under this section.
``(b) Awards.--
``(1) In general.--In any administrative proceeding or
court action the Bureau, subject to regulations prescribed by
the Bureau and subject to subsection (c), shall pay an award or
awards to 1 or more whistleblowers who voluntarily provided
original information that led to the successful enforcement of
the covered administrative proceeding or court action in an
aggregate amount equal to--
``(A) not less than 10 percent, in total, of what
has been collected of the monetary sanctions imposed in
the action; and
``(B) not more than 30 percent, in total, of what
has been collected of the monetary sanctions imposed in
the action.
``(2) Payment of awards.--Any amount paid under paragraph
(1) shall be paid from the Fund.
``(3) Award minimum.--If the Bureau is unable to collect at
least $1,000,000 of the monetary sanctions imposed in the
action, the Bureau shall provide for an award to any single
whistleblower equal to the greater of--
``(A) 10 percent of the amount collected; or
``(B) $50,000.
``(c) Determination of Amount of Award; Denial of Award.--
``(1) Determination of amount of award.--
``(A) Discretion.--The determination of the
percentage amount of an award made under subsection (b)
shall be in the discretion of the Bureau.
``(B) Criteria.--In determining the percentage
amount of an award made under subsection (b), the
Bureau shall take into consideration--
``(i) the significance of the information
provided by the whistleblower to the successful
enforcement of the administrative proceeding or
court action;
``(ii) the degree of assistance provided by
the whistleblower and any legal representative
of the whistleblower in an administrative
proceeding or court action;
``(iii) the programmatic interest of the
Bureau in deterring violations of Federal
consumer financial law (including applicable
regulations) by making awards to whistleblowers
who provide information that leads to the
successful enforcement of such laws; and
``(iv) such additional relevant factors as
the Bureau may establish by rule or regulation.
``(2) Denial of award.--No award under subsection (b) shall
be made--
``(A) to any whistleblower who is, or was at the
time the whistleblower acquired the original
information submitted to the Bureau, a member, officer,
or employee of an entity described in subclauses (I)
through (V) of subsection (h)(1)(C)(i);
``(B) to any whistleblower who is convicted of a
criminal violation related to the administrative
proceeding or court action for which the whistleblower
otherwise could receive an award under this section;
``(C) to any whistleblower who is found to be
liable for the conduct in the administrative proceeding
or court action, or a related action, for which the
whistleblower otherwise could receive an award under
this section;
``(D) to any whistleblower who planned and
initiated the conduct at issue in the administrative
proceeding or court action for which the whistleblower
otherwise could receive an award under this section;
``(E) to any whistleblower who submits information
to the Bureau that is based on the facts underlying the
administrative proceeding or court action previously
submitted by another whistleblower; and
``(F) to any whistleblower who fails to submit
information to the Bureau in such form as the Bureau
may, by rule or regulation, require.
``(d) Representation.--
``(1) Permitted representation.--Any whistleblower who
makes a claim for an award under subsection (b) may be
represented by counsel.
``(2) Required representation.--
``(A) In general.--Any whistleblower who
anonymously makes a claim for an award under subsection
(b) shall be represented by counsel if the
whistleblower submits the information upon which the
claim is based.
``(B) Disclosure of identity.--Prior to the payment
of an award, a whistleblower shall disclose the
identity of the whistleblower and provide such other
information as the Bureau may require, directly or
through counsel of the whistleblower.
``(e) No Contract Necessary.--No contract or other agreement with
the Bureau is necessary for any whistleblower to receive an award under
subsection (b), unless otherwise required by the Bureau by rule or
regulation.
``(f) Appeals.--Any determination made under this section,
including whether, to whom, or in what amount to make awards, shall be
in the discretion of the Bureau. Any such determination, except the
determination of the amount of an award if the award was made in
accordance with subsection (b), may be appealed to the appropriate
court of appeals of the United States not more than 30 days after the
determination is issued by the Bureau. The court shall review the
determination made by the Bureau in accordance with section 706 of
title 5.
``(g) Reports to Congress.--Not later than October 30 of each year,
the Bureau shall transmit to the House Committee on Financial Services
and the Senate Committee on Banking, Housing, and Urban Affairs a
report on the Bureau's whistleblower award program under this section,
including a description of the number of awards granted and the types
of cases in which awards were granted during the preceding fiscal year.
``(h) Protection of Whistleblowers.--
``(1) Confidentiality.--
``(A) In general.--Except as provided in
subparagraphs (B) and (C), the Bureau and any officer
or employee of the Bureau, shall not disclose any
information, including information provided by a
whistleblower to the Bureau, which could reasonably be
expected to reveal the identity of a whistleblower,
except in accordance with the provisions of section
552a of title 5, United States Code, unless and until
required to be disclosed to a defendant or respondent
in connection with a public proceeding instituted by
the Bureau or any entity described in subparagraph (C).
For purposes of section 552 of title 5, United States
Code, this paragraph shall be considered a statute
described in subsection (b)(3)(B) of such section 552.
``(B) Effect.--Nothing in this paragraph is
intended to limit the ability of the Attorney General
to present such evidence to a grand jury or to share
such evidence with potential witnesses or defendants in
the course of an ongoing criminal investigation.
``(C) Availability to government agencies.--
``(i) In general.--Without the loss of its
status as confidential in the hands of the
Bureau, all information referred to in
subparagraph (A) may, in the discretion of the
Bureau, when determined by the Bureau to be
necessary or appropriate, be made available
to--
``(I) the Department of Justice;
``(II) an appropriate department or
agency of the Federal Government,
acting within the scope of its
jurisdiction;
``(III) a State attorney general in
connection with any criminal
investigation;
``(IV) an appropriate department or
agency of any State, acting within the
scope of its jurisdiction; and
``(V) a foreign regulatory
authority.
``(ii) Maintenance of information.--Each of
the entities, agencies, or persons described in
clause (i) shall maintain information described
in that clause as confidential, in accordance
with the requirements in subparagraph (A).
``(2) Rights retained.--Nothing in this section shall be
deemed to diminish the rights, privileges, or remedies of any
whistleblower under section 1057, any other Federal or State
law, or under any collective bargaining agreement.
``(i) Rulemaking Authority.--The Bureau shall have the authority to
issue such rules and regulations as may be necessary or appropriate to
implement the provisions of this section consistent with the purposes
of this section.
``(j) Original Information.--Information submitted to the Bureau by
a whistleblower in accordance with rules or regulations implementing
this section shall not lose its status as original information solely
because the whistleblower submitted such information prior to the
effective date of such rules or regulations, provided such information
was submitted after the date of enactment of this section.
``(k) Provision of False Information.--A whistleblower who
knowingly and willfully makes any false, fictitious, or fraudulent
statement or representation, or who makes or uses any false writing or
document knowing the same to contain any false, fictitious, or
fraudulent statement or entry, shall not be entitled to an award under
this section and shall be subject to prosecution under section 1001 of
title 18, United States Code.
``(l) Unenforceability of Certain Agreements.--
``(1) No waiver of rights and remedies.--Except as provided
under paragraph (3), and notwithstanding any other provision of
law, the rights and remedies provided for in this section may
not be waived by any agreement, policy, form, or condition of
employment, including by any predispute arbitration agreement.
``(2) No predispute arbitration agreements.--Except as
provided under paragraph (3), and notwithstanding any other
provision of law, no predispute arbitration agreement shall be
valid or enforceable to the extent that it requires arbitration
of a dispute arising under this section.
``(3) Exception.--Notwithstanding paragraphs (1) and (2),
an arbitration provision in a collective bargaining agreement
shall be enforceable as to disputes arising under subsection
(a)(4), unless the Bureau determines, by rule, that such
provision is inconsistent with the purposes of this title.''.
(b) Consumer Financial Civil Penalty Fund.--Section 1017(d)(2) of
the Consumer Financial Protection Act of 2010 (12 U.S.C. 5497(d)(2)) is
amended, in the first sentence, by inserting ``and for awards
authorized under section 1017A'' before the period at the end.
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