The sweeping overhaul of the financial system in the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”) included provisions in Section 21F of the Securities Exchange Act of 1934 (“Section 21F”) that required the SEC to pay substantial monetary awards to whistleblowers for disclosing alleged wrongdoing by publicly traded companies, financial services institutions, and other covered entities.1 These provisions also prohibited retaliation by employers against whistleblowers who assist the SEC under its whistleblower program. On May 25, 2011, the SEC adopted final rules implementing this whistleblower program, including provisions designed to protect whistleblowers from retaliation by employers.2 Although the rules become effective 60 days after publication in the Federal Register, they apply retroactively to tips provided as of the date Dodd-Frank was enacted, July 21, 2010.
The concept behind the SEC‟s whistleblower program, initially proposed by University of Alabama Law School Professor Pamela (Bucy) Pierson in a seminal article published nine years ago, is based upon the view that so-called “qui tam enforcement” had worked so well in enforcing the civil False Claims Act (“FCA”) that it should be imported to enforce the securities laws.3 Indeed, a number of elements in the SEC‟s whistleblower provisions derive from the FCA‟s qui tam enforcement mechanism. For example, the 10-30% whistleblowers‟ share, the “original information” requirement, and the “voluntarily provided” requirement are similar to requirements under the FCA. In its proposed whistleblower rules, the Commission noted that the FCA provided “helpful guidance” on the legal standards for whistleblowers, and the SEC‟s adopting release relied on a number of FCA decisions in defining the standards for the program.4 The balance struck between the competing interests of whistleblowers, companies, and the government in the SEC‟s whistleblower program is different from the FCA in a number of ways that allow the SEC to curtail abuses that have occurred under the FCA‟s qui tam enforcement mechanism.
The SEC’s Whistleblower Program Has No Qui Tam Enforcement
The most significant distinction between the SEC‟s whistleblower program and the FCA‟s enforcement regime is that the SEC program does not provide for qui tam enforcement. The False Claims Act provides for the use of the federal government‟s powerful resources for enforcement, but it also allows enforcement actions to be brought by private plaintiffs, referred to as qui tam relators. The term “qui tam” is derived from a Latin phrase, “qui tam pro domino rege quam pro se ipso,” or “who pursues this action on our Lord the King‟s behalf as well as his own.”5 As this phrase indicates, the qui tam action arose in early English common law as a device for permitting private individuals to litigate claims on the sovereign‟s behalf. Like relators in modern FCA actions, early qui tam litigants not only gained standing to sue that they otherwise would lack, but they also received a share of any recovery obtained on the sovereign‟s behalf as a result of the qui tam action.6 Under the current FCA‟s fee-shifting provision, defendants are required to pay prevailing relators‟ attorneys‟ fees and costs. Significant amendments to the False Claims Act in 1986 strengthened the rights of relators, and increased the bounties that may be awarded to successful relators, thus dramatically increasing the incentives to filing suit. Amendments in 2009 and 2010 further enhanced relators‟ ability to share in recoveries and added further protection from retaliation.7
The original purposes of the qui tam enforcement mechanism in the False Claims Act included “setting a rogue to catch a rogue.”8 The FCA prevents recovery of an award by a whistleblower convicted of criminal conduct related to the action, however, and it also restricts the ability of a relator with unclean hands to collect a qui tam bounty.9 The FCA specifically provides that a prevailing relator‟s attorneys‟ fees are paid by the defendant, but a prevailing defendant may recover reasonable attorneys‟ fees only if the qui tam action was clearly frivolous, vexatious, or brought in bad faith under the FCA.10 And, under FCA case law, qui tam defendants may not bring claims for indemnification against relators, even those who assisted in perpetrating the fraud.11 Within these parameters, there is a lot of room for abuse of the qui tam enforcement mechanism.
As required under Section 21F of the Securities Exchange Act, the SEC‟s rules establish an administrative process with limited circuit court review of the SEC‟s discretionary decisions on awards.13 Under the SEC‟s whistleblower program, whistleblowers are afforded no special powers to investigate potential violations or to bring administrative or judicial enforcement actions based on violations. The SEC‟s administrative process allows the SEC to maintain complete control of enforcement of the securities laws, including whether, when, and how to exercise its prosecutorial discretion in enforcement matters. The decision to keep the SEC in charge reflects a legislative recognition that paying whistleblowers for information about violations may make economic sense, but that giving them Article II power to enforce the laws without the Department of Justice‟s (“DOJ”) intervention or involvement as authorized under the FCA is a bad investment. Indeed, results under the FCA reflect that less than three percent of FCA recoveries―and almost all adverse case law (in terms of restricting the scope and application of the FCA)―come from qui tam cases that are litigated without DOJ involvement.14
Like the FCA, under Section 21-F, any whistleblower convicted of a criminal violation related to the action is excluded from receiving an award.15 A whistleblower‟s culpability or involvement in the underlying wrongful conduct is also considered in determining the amount of an award under the SEC‟s rules.16 In addition, the SEC‟s rules specifically prevent whistleblowers from receiving an award if they obtained the information in a manner that violates federal or state criminal law,17 and liability based on conduct substantially directed by the whistleblower is not taken into account in the $1 million threshold for an award.18 Like the FCA, however, the SEC‟s rules are silent on the issue of indemnification actions against whistleblowers, which leaves that issue open to interpretation.
The Commission‟s rules do not include any provision for attorneys‟ fees, which is an issue that is always disputed under the FCA‟s fee-shifting provision. Instead, the adopting release notes that the issue of attorneys‟ fees is left to state bar authorities and to contractual arrangements between whistleblowers and their attorneys.19
Eligibility to Receive an Award under the SEC’s Whistleblower Program
The SEC‟s rules establish procedures for whistleblowers to follow in order to qualify for an award and set forth standards governing the whistleblower program. Specifically, to be eligible for an award under the SEC‟s program: (1) a “whistleblower” (2) must “voluntarily provide” the Commission (3) with “original information” about possible violation of the securities laws (4) that “leads to a successful enforcement action” (5) resulting in “monetary sanctions” of more than $1 million. As discussed below, the specific requirements for eligibility under the SEC‟s program differ from the FCA in key respects. However, it is worth noting at the outset that enforcement of these eligibility requirements under the SEC‟s program will be left to the SEC. Unlike the FCA, where defendants have the ability to contest the bona fides of a qui tam relator, there is no such vehicle for testing whistleblower eligibility under the SEC program.
The SEC defines a “whistleblower” as an individual who, alone or jointly with others, provides the Commission with information relating to a “possible violation” of the securities laws.20 Whereas virtually any person or entity (other than a former or present member of the Armed Forces)21 can be a qui tam relator under the FCA, the SEC‟s program expressly excludes a company or other entity from eligibility as a whistleblower.22 A “possible violation” under the SEC‟s rules broadly encompasses a violation that “has occurred, is ongoing, or is about to occur.”23
- Summary of Exclusions from Eligibility
Section 21-F specifically excludes any whistleblower who acquired the information submitted to the SEC through employment at
- “an appropriate regulatory agency,”
- the Public Company Accounting Oversight Board (“PCAOB”),
- a self-regulatory organization, or
- a law enforcement organization.24
It also excludes anyone convicted of a criminal violation related to the action that would otherwise be the basis for an award,25 or one who gained the information through an audit required under the securities laws.26
The SEC incorporates all of these exclusions into its rules on eligibility, adding seven additional exclusions.27 For example, the rules specifically exclude a person who acquired the information while a member, officer, or employee at the Commission, and they even exclude the person‟s close relatives.28 The rules also exclude members, officers, or employees of a foreign government, its political subdivisions or instrumentalities, or a foreign regulatory authority.29 Knowingly and willfully making or using false or fraudulent statements with intent to mislead or hinder the Commission or another authority is also a basis for exclusion under the rules.30
The rules also exclude as not “voluntarily provided” whistleblower submissions that are made after a request by certain specific authorities (such as the SEC, Congress, any authority of the federal government, state attorneys general, or state securities regulatory authorities).31 Information provided prior to such a request is considered “voluntarily provided.” As discussed in more detail below, exclusion of whistleblowers whose information is not “voluntarily provided” because it is made after a request is limited in several respects. For example, while any request by the Commission qualifies for this exclusion, only investigatory-type requests by other authorities are covered. Certain pre-existing duties owed by the whistleblower also prevent the submission from being considered “voluntarily provided,” including a duty to report to the Commission or a contractual duty owed to a covered authority.
In addition, the rules exclude information not considered “original information” because of the circumstances under which the information was gathered.32 For example, attorneys who obtained the information in connection with their representation of a client are excluded, unless disclosure is permitted under the Commission‟s attorney conduct rules, state bar rules, or otherwise. Also, information is not considered “original information” if it is gathered by accountants engaged to investigate possible violations or by principals in the company who learn the information through the company‟s system addressing possible violations, unless an exception applies.
- Specific Exclusions for Submissions by Government Employees and Whistleblowers with a Pre-existing Duty to Report Violations to the SEC
Under the FCA, there is no express prohibition on awards to government employees or those with a pre-existing duty to report fraud, such as in-house counsel, auditors, and compliance officers.33 Indeed, while the government has argued vigorously against awards to government employee whistleblowers, many courts have continued to allow recoveries to government employee relators.34 In United States ex rel. Fine v. Chevron, U.S.A., Inc., the government argued that permitting employees of the Office of the Inspector General to act as relators created undesirable incentives:
To spend work time looking for personally remunerative cases…rather than doing their assigned work; to conceal information about fraud from superiors and government prosecutors so that they can capitalize on it for personal gain; to race the government to the courthouse to file ongoing audit and investigatory matters as qui tam actions before those cases have been sufficiently developed by the government to justify a lawsuit, thus prematurely tipping off the target, undermining the likely effectiveness of the case, and diverting unnecessarily up to 30% of the government‟s recovery to the government employee; and to use the substantial powers of the federal government conferred upon public investigators . . . to advance their personal financial interests…. Public confidence in the integrity and impartiality of government audits and investigations will necessarily decrease.35
Rather than leaving this critical issue vague or unresolved, the Dodd-Frank Act expressly denied awards to anyone who was, at the time the information was acquired, an employee of “an appropriate regulatory agency,” DOJ, PCAOB, a law enforcement organization, or a self-regulatory organization. This reflects an effort to maintain the integrity of the government‟s regulatory process by preventing those in charge of that process from pursuing personal monetary gain or adopting conflicting roles.
While the SEC rules incorporate these broad exclusions, the SEC‟s definition of an “appropriate regulatory agency” narrows them so that there is no blanket exclusion for all government employees engaged in doing their jobs. Specifically, the rules define an “appropriate regulatory agency” as
the Commission, the Comptroller of the Currency, the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation, the Office of Thrift Supervision, and any other agencies that may be defined as appropriate regulatory agencies under Section 3(a)(34) of the Exchange Act (15 U.S.C. 78c(a)(34)). 36
This definition includes government employees in certain agencies who would be expected to investigate or report conduct that could violate the securities laws to the Commission, but it does not extend to all personnel who investigate underlying conduct that may give rise to violations. For example, the SEC‟s program does not exclude employees at EPA or FDA, who regulate conduct that may give rise to or be relevant to a securities law violation.
- The Submission Must Be “Voluntarily Provided”
The SEC‟s rules provide that the whistleblower‟s submission to the Commission must be “voluntarily provided,” which means that the whistleblower‟s submission must be made before a request, inquiry, or demand:
- by the Commission,
- in connection with an investigation, inspection, or examination by the PCAOB, a self-regulatory organization, or
- in connection with an investigation by Congress, any authority of the federal government, a state Attorney General, or state securities regulatory authority.37
If the information is not provided before such a request, the whistleblower is not eligible to receive an award.
This exclusion is limited in several ways. First, it contains a narrow list of authorities whose requests require exclusion. Second, while a subpoena is not required for the exclusion to apply and any request or inquiry by the Commission triggers the exclusion, requests from PCOAB and self-regulatory organizations are subject to a broader exclusion than other federal and state authorities, whose requests must be investigatory for the exclusion to apply. Third, rather than treating a request to an employer as directed to all employees, the request must be made to the whistleblower or a representative.38 Importantly, an employee contacted for information during the course of an internal investigation is not excluded from voluntarily providing the information to the Commission.
The rules specifically provide that submissions by individuals under certain legal duties are also excluded as not “voluntarily provided.” Again, however, the rules provide a narrow list of the duties that qualify for the exclusion. The exclusion applies to those who:
are required to report [their] original information to the Commission as a result of a pre-existing legal duty, a contractual duty that is owed to the Commission or to one of the listed other authorities set forth in paragraph (1) of this section, or a duty that arises out of a judicial or administrative order.39
This exclusion covers a duty to report to the Commission, but not a duty to report information to an authority other than the Commission. Instead, where other authorities are concerned, the exclusion issue is governed by the whistleblower‟s contractual duty to those authorities.40
In sum, the “voluntarily provided” exclusion focuses on the person to whom a request was directed, the authorities making the request, the type of request made, the type of pre-existing duty owed, and the authority to whom the pre-existing duty is owed. Despite these multiple parameters, some of the conflicts that occur under the FCA should be avoided under the SEC‟s program.41
- “Original Information”―Requirements, Exclusions, and Exceptions
The whistleblower must provide factual “original information” to be eligible for an award. The requirements for “original information” in the rules come directly from Section 21F, under which “original information” must:
- Come from the whistleblower‟s “independent knowledge” or “independent analysis,”
- Not already be known to the Commission (unless the whistleblower is the “original source” of the information), and
- Not be “exclusively derived from an allegation made in a judicial or administrative hearing, in a governmental report, hearing, audit, or investigation, or from the news media, unless the whistleblower is a source of the information.”42
This information must be provided after July 21, 2010 (the date of the Dodd-Frank Act).43
- “Independent Knowledge” and “Independent Analysis”
The SEC defines “independent knowledge” as factual information gained from the whistleblower‟s experiences, communications, and observations that is not derived from publicly available sources,44 and “independent analysis” as the “examination and evaluation of information that may be publicly available, but which reveals information that is not generally known or available to the public.”45 These requirements focus on the type of knowledge and analysis that a whistleblower must have that would be valuable to the Commission rather than unduly restricting the sources of publicly available information as the 2010 amendments to the FCA‟s public disclosure provision have done. They differ from the FCA (prior to its amendment in 2010) in that the FCA required an “original source” to have both “direct and independent knowledge” of the information, and courts generally defined “direct” as first-hand. There is no such direct, first-hand knowledge requirement under the SEC‟s rules, which allow for information that is based on the whistleblower‟s experience or analysis.46
Whistleblowers whose information derives from allegations in hearings, government reports, and the news media are specifically excluded under the SEC‟s rules, but only if their information was “exclusively derived” from those sources. As already noted, the SEC does not limit these excluded sources to federal sources, as the FCA‟s recently amended public disclosure bar provides.47 The SEC‟s “exclusively derived” test may be easier for whistleblowers to skirt, however, than the “substantially the same allegations or transactions” language that triggers the FCA‟s public disclosure bar and the claim-by-claim assessment required under it.
The SEC‟s rules specifically exclude attorneys who obtain their information through legal representation of a client48 or through attorney-client privileged communications,49 unless disclosure is permitted under the Commission‟s attorney conduct rules, state bar rules, or otherwise.50 The purpose of these exclusions is to
send a clear, important signal to attorneys, clients, and others that there will be no prospect of financial benefit for submitting information in violation of an attorney‟s ethical obligations.51
The exclusions apply to both attorneys and non-attorneys (if the non-attorney learns the information through a confidential attorney-client communication),52 and the exclusions apply to all attorneys―whether retained or working in-house.53 The exclusions do not apply, however, if disclosure of the information is permitted under SEC Rule 205.3,54 state statutes or state bar rules, or if disclosure is permitted through a waiver of the attorney-client privilege. While the FCA has no express prohibition on qui tam suits brought by attorneys, at least one court has dismissed a qui tam action based on attorney-client privileged information in an FCA case.55
- Other Exclusions
The SEC also specifically excludes―from the definition of “original information” that derives from “independent knowledge or independent analysis”―information gathered under the following circumstances, subject to exceptions:
- An officer, director, trustee, or partner of a company who receives the information through the company‟s internal compliance process.56
- Employees whose principal duties involve compliance or internal audit responsibilities.57
- Those retained to investigate possible violations of law.58
- Employees and other persons associated with a public accounting firm who learn the information through an engagement required under the securities laws.59
The exceptions to the exclusions listed directly above are:
- if the whistleblower has a reasonable basis to believe that disclosure is necessary to prevent conduct likely to cause substantial injury to the financial interest or property of the entity or investors;
- if the whistleblower has a reasonable basis to believe that the entity is engaging in conduct that will impede an investigation; or
- if at least 120 days have passed since you either provided the information through the company‟s internal reporting system or received it in circumstances indicating that the company was aware of it.60
Finally, the SEC‟s rules specifically exclude information gathered in violation of federal or state criminal law.61 The FCA has no provision that protects the information gathering process from criminal conduct.
- Information That Leads to Successful Enforcement
The SEC‟s rules lower the standards that were originally proposed for assessing the requirement that the whistleblower‟s original information “leads to successful enforcement.” Under the standards adopted in the final rules, the Commission will consider this requirement to be met where: (1) “sufficiently specific, credible, and timely” original information caused the staff to commence an investigation, reopen a closed investigation, or inquire into different conduct in a current examination or investigation; or (2) original information “significantly contributed” to the success of an action already under examination by the Commission, Congress, a federal government authority, state Attorney General, or securities regulatory authority, self-regulatory organization, or the PCAOB. This requirement is also met if the standards in (1) or (2) are met after the whistleblower reported the information internally and the company later provided the information or the results of an audit to the Commission (provided the whistleblower notified the Commission within 120 days of the original internal report).62
While the “sufficiently specific, credible, and timely” standard in (1) and the “significantly contributed” standard in (2) are lower than the standards originally proposed,63 they nevertheless prevent whistleblowers from gaining a monetary share of the government‟s recovery when they provide no valuable or new information on allegations or transactions that the government is already investigating. A qui tam relator could do just that under the First Circuit‟s interpretation of the “original source” standard in United States ex rel. Duxbury v. Ortho Biotech Products, L.P., despite the government‟s vigorous arguments to the contrary.64 The PPACA amendments to Section 3730(e)(4) do not fix this problem in the FCA‟s public disclosure bar because they continue to allow the relator this option in addition to the option of reporting the fraud prior to a public disclosure. The SEC‟s “significantly contributed” and “specific, credible and timely” standards are more direct and effective than the FCA‟s “materially adds” standard in preventing parasitic suits by relators while encouraging whistleblowers to provide their information about fraud to the government prior to the government‟s initiation of an investigation.
- Monetary Sanctions of Over $1 Million in an Action
Monetary sanctions are defined under the SEC‟s rules as money, penalties, disgorgement, and interest ordered to be paid as a result of a Commission action, including money deposited into a disgorgement fund as a result of a Commission action or pursuant to Section 308(b) of the Sarbanes-Oxley Act.65 The rules define “action” as a single captioned judicial or administrative proceeding brought by the Commission.66 The SEC revised its proposed rules to provide that the Commission will treat additional proceedings as an “action” if they arise out of “the same nucleus of operative facts.”67 Thus, the award could cover allegations that were not included in a whistleblower‟s original disclosure under the SEC‟s program.
Procedures for Whistleblower Submissions, Claims, and Awards
The Commission provides specific procedures for submitting original information in Rule 21F-9, for making a claim for a whistleblower award in Rule 21F-10, for determining awards based on related actions in Section 240.21F-11, and for payment of awards in Rule 21F-14. Detailed forms for submitting information (Form TCR) and for applying for an award (Form WB-APP) are also provided in the rules. 68 The SEC requires the whistleblower‟s submission to be signed under penalty of perjury69 in order to deter the submission of false and misleading information to the Commission and to “mitigate the potential harm to companies and individuals that may be caused by false or spurious allegations of wrongdoing.”70
- Anonymity and Confidentiality
The SEC‟s rules allow a whistleblower to submit information anonymously, but in that event, the whistleblower must be represented by an attorney and the attorney‟s contact information must be provided to the Commission at the same time as the whistleblower‟s submission.71 Counsel must provide certification that he has verified the whistleblower‟s identity and reviewed the whistleblower‟s signed submission form.72 There is no parallel anonymity option in the FCA, and this provision has at least the potential for abuse because the SEC will have no effective means to evaluate counsel‟s representations regarding the whistleblower‟s eligibility for an award.
Section 21F(h)(2) requires the whistleblower‟s identity and submissions to be kept confidential prior to the filing of an action, except in certain circumstances. Under the SEC‟s rules, these circumstances are defined to include disclosure to a defendant as required in a federal court or administrative action, or, when the Commission determines it is necessary, disclosure to DOJ or other regulatory authorities.73
Under the FCA, the entire qui tam complaint is kept under seal until DOJ either intervenes or seeks court approval to partially unseal the complaint in order to seek the defendant‟s comments―a cumbersome process. The government has used the FCA‟s seal requirement for other purposes besides making a decision on whether or not to intervene, including enhancing its litigation position and gaining advantages in settlement.74 The SEC‟s confidentiality provisions are focused on the whistleblower‟s identity and thus their effect on litigation and settlement is more limited than the FCA‟s broad seal requirements. This should allow for better communication between the SEC and target companies.
- Criteria for Awards
Under Section 21F, the SEC has the discretion to determine whether to make an award, to whom, and in what amount. The amount of an award may range from 10 to 30 percent of the amount recovered in an action, and the Commission may consider factors that could increase or decrease an award in the context of the unique circumstances in each case. Basic factors that may increase an award are:
- The significance of the information provided by the whistleblower
- The assistance provided by the whistleblower
- The Commission‟s programmatic interest in deterring violations
- Participation in internal compliance systems75
Other factors that may decrease the amount of an award are:
- The whistleblower‟s culpability or involvement in the violations
- Unreasonable reporting delay
- Interference with internal compliance and reporting systems76
- “Lookback Provision”
Where the whistleblower provided the information to Congress, a government authority, or to an internal compliance program, and within 120 days submitted the same information to the Commission, the whistleblower‟s submission will relate back to the date of the original disclosure.77 This so-called “lookback” provision preserves the rights of whistleblowers who report internally under the Commission‟s whistleblower program without requiring the whistleblower to report internally first. Its intent is to balance the Commission‟s support of company compliance programs―which the Commission views as “essential sources of information for companies about misconduct,” with the Commission‟s primary goal of encouraging high-quality tips to help it enforce the securities laws.78 There is no such support of corporate compliance programs under the FCA.
- Appeal and Review of Whistleblower Awards
The SEC has the discretion not to provide an award to a whistleblower under its whistleblower program, and that decision is reviewable by a circuit court. The Commission‟s decision on the amount of an award, as long as it falls within the 10 to 30 percent statutory mandate, is not reviewable.79 Under Section 3730(d) of the FCA, the relator‟s award is not a discretionary decision by DOJ, and contentious disputes between DOJ and relators have arisen in relators‟ share determinations.80
Section 21F‟s prohibition on retaliation against whistleblowers provides:
No employer may discharge, demote, suspend, threaten, harass, directly or indirectly, or in any other manner discriminate against, a whistleblower in the terms conditions of employment because of any lawful act done by the whistleblower.81
Under the SEC‟s rules, protection from retaliation is extended to a whistleblower as long as he has “a reasonable belief” that the information he provides relates to a possible securities law violation.82 The adopting release explains that
[t]he “reasonable belief” standard requires that the employee hold a subjectively genuine belief that the information demonstrates a possible violation, and that this belief is one that a similarly situated employee might reasonably possess.83
This “reasonable belief” requirement seeks to strike a balance between encouraging whistleblowers to come forward with “high quality” tips without fear of retaliation, and discouraging bad faith or frivolous reports. It conforms to the approach under retaliation provisions in other federal statutes, including the FCA, that require a reasonable belief in a violation even though the statute does not expressly require that showing.84
The FCA‟s retaliation provision covers acts in furtherance of an FCA action without requiring a successful action.85 Similarly, a whistleblower need not satisfy the conditions for an award in order to receive protection under the SEC‟s retaliation provision.86 Rather than using the vague “in furtherance” language, however, Section 21F and SEC Rule 21F-2(b) clearly define the manner in which this information must be provided. Covered acts include: providing information about possible securities law violations to the Commission in accordance with its whistleblower program, assisting the Commission in any related judicial or administrative investigation or action, and making other disclosures that are protected or required under the federal securities laws or the Commission‟s regulations or rules. Another clear difference between the more definite provision in Section 21F and the FCA‟s broader retaliation provision as amended by the Dodd-Frank Act is that under Section 21F, the SEC‟s anti-retaliation provision specifically extends only to retaliation by an “employer.”87
There are two more elements in the cause of action for retaliation under the FCA that are required in addition to protected conduct―notice to the employer of the protected conduct, and discriminatory intent by the employer.88 These requirements of causation and intent also apply to an action for retaliation under the SEC‟s retaliation provisions because retaliation under Section 21F, as under the FCA, must occur “because of” the whistleblower‟s lawful act.