An internal whistleblower could collect up to $24 million of the $80 million penalty imposed by the Securities and Exchange Commission against agribusiness giant Monsanto.
That could be one of the largest awards so far since the SEC instituted the current whistleblower program inaugurated under the Dodd-Frank Act of 2010.
The SEC said Tuesday that the St. Louis-based company agreed to pay an $80 million penalty and retain an independent compliance consultant to settle charges that it violated accounting rules and misstated company earnings pertaining to its flagship product Roundup (see Monsanto Rounds Up $80 Million in Accounting Violations). An SEC investigation found Monsanto had insufficient internal accounting controls to properly account for millions of dollars in rebates offered to retailers and distributors of its herbicide Roundup after generic competition had undercut Monsanto’s prices and resulted in a significant loss of market share.
The case came to the SEC’s attention as a result of a whistleblower complaint, according to Stuart D. Meissner, whose Nyack, N.Y., firm Meissner Associates represented the unidentified whistleblower. He noted that the SEC’s whistleblower program allows a whistleblower to collect between 10 to 30 percent of the penalty.
“If you meet the criteria and comply with the rules, the whistleblower can obtain an award of anywhere from 10 to 30 percent of whatever funds the SEC collects, assuming it’s more than $1 million, which obviously this would be,” he told Accounting Today.
There is a process that his client will need to go through before collecting such an award, however.
“First you have to be approved after they give a notice of eligible action, which probably will be put up fairly soon,” said Meissner. “Part of the requirement is that the SEC actually has to collect the money from the company and the people, and that has to be over $1 million. With Monsanto, I’m sure that’s not going to be an issue as far as collection goes. Once that notice is out, anyone who claims to be the whistleblower has to submit a claim form within 90 days. Once that is done—and there could be other whistleblowers, although we’re not aware of any—when the SEC determines whether the whistleblower meets the criteria and complied with the rules, if they determine how much assistance and cooperation they believe the whistleblower provided and determine what within the range of 10 to 30 percent they should receive, then the whistleblower has a right to appeal or object to that, depending on the determination.”
The whistleblower claim was filed around 2011 was one of the first whistleblower claims filed after the program was ushered in by the Dodd-Frank Act. “It was actually initially filed by my client directly, without me,” said Meissner. “I didn’t represent him from the very beginning, but then we took over. It would seem, based on the amount of the award, if he were to be deemed to receive the maximum, which would be 30 percent—and I don’t see any reason why not, based on his complete cooperation—it would be the second largest whistleblower award in history of the program, as of now.”
However, Meissner admitted it would not be as large as the $104 million awarded in 2012 to former UBS banker Bradley Birkenfeld under the IRS’s separate whistleblower program (see UBS Whistleblower Secures $104 Million IRS Award).
Still, the unidentified Monsanto whistleblower could potentially collect up to $24 million. Meissner declined to say whether the whistleblower was an accountant, but said he was a Monsanto employee.
A Monsanto spokesperson declined to comment.
Meissner noted the SEC has a 120-day rule under which an internal compliance employee, or an audit committee employee type of whistleblower, must wait until 120 days after reporting the complaint internally before going to the SEC if no proper action is taken, in order to give the company time to investigate and take action on its own.
However, the Monsanto whistleblower filed his complaint before the SEC had finalized its regulations, so in a sense his complaint could be “grandfathered in” and only be subject to the requirements spelled out in the Dodd-Frank Act. The whistleblower did report his complaint internally, according to Meissner, but he isn’t sure if the 120-day period detailed in the final regulations was followed.
“In most cases, whistleblowers do bring it up internally,” said Meissner. “Then they go to the SEC when they don’t get a proper response. Most people aren’t looking to rush out and get an award. They are looking to do the right thing and they get frustrated when the company doesn’t respond properly. That’s when they go outside.”
Meissner believes the Dodd-Frank Act has created potential opportunities for accountants at thousands of public companies to uncover wrongdoing to protect investors and obtain a bounty at the same time. In the end, he pointed out, it would ensure corporations do the right thing and carefully consider concerns related to financial reporting raised by accountants.
“Accountants would be primarily aware of these particular issues—in other words, accounting fraud or accounting manipulation, and inappropriate accounting actions that are not consistent with GAAP—and therefore they’re the first line of defense in correcting any misdeeds by management, and if management doesn’t cooperate, to report it,” said Meissner. “This is a perfect case that shows it probably is worthwhile for employees in that situation to do the right thing. As a side benefit it assists the shareholders and the economy in general by not letting things get out of hand.”