On April 1, 2015, the United States Securities and Exchange Commission (“SEC” or “Commission”) filed its first enforcement action under Section 21F of the Securities Exchange Act of 1934 (“Exchange Act”) and Exchange Act Rule 21F-17 promulgated thereunder, which is intended to prevent issuers from taking steps that impede employees from reporting potential federal securities law violations to the SEC. In a settled administrative proceeding, the Commission alleged that KBR, Inc. (“KBR”) required employees, during internal investigation interviews, to sign a confidentiality statement containing “improperly restrictive language” that could be read to discourage employees from reporting potential violations of the federal securities laws to the SEC. It should be noted that the SEC brought this enforcement action even though it acknowledged that it did not know of any efforts by KBR to enforce these confidentiality provisions. Nor was the Commission aware of any employees who had in fact been dissuaded from becoming whistleblowers. This enforcement action is the latest indication of the Enforcement Division’s aggressive stance against confidentiality agreements that are perceived as restricting whistleblowers from reporting potential federal securities law violations to the SEC.

Exchange Act Rule 21F-17 Prohibits Restrictive Confidentiality Agreements -

The Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”) includes provisions that protect whistleblowers from retaliation for certain whistleblowing activities and provides financial incentives for employees to blow the whistle on their employers. In 2011, the SEC enacted Exchange Act Rule 21F-17 to implement these whistleblower-protection provisions. The SEC explained that Exchange Act Rule 21F-17 was intended to achieve the congressional purpose of “encourag[ing] whistleblowers to report possible violations of the securities laws by providing financial incentives, prohibiting employment-related retaliation, and providing various confidentiality guarantees.” Broadly, Exchange Act Rule 21F-17 prohibits “imped[ing] an individual from communicating directly with SEC staff about a possible securities law violation, including enforcing, or threatening to enforce, a confidentiality agreement” that prohibits whistleblowers from communicating with the SEC.