Share17Tweet1ShareEmail18 SharesJanuary 11, 2016; New York Law JournalThe New York Law Journal reports that the plaintiffs in the fair housing case against the German-American Settlement League in the village of Yaphank, New York, have settled their claims of discrimination based on national origin.As covered in the NPQ Newswire last October, the Kneer family was blocked from advertising the sale of a house that they owned in the Long Island community because of a restrictive covenant in the deed that was a legacy from the days when Yaphank was home to Nazi sympathizers. When first reported in the New York Times on October 19th, the German-American Settlement League maintained that the deed restrictions were not about Nazism but a reflection of a proud ethnic heritage.Frustrated by the restriction, the Kneers turned to Long Island Housing Services (LIHS) for counseling and support. Private fair housing agencies are nonprofits, created by housing advocates in communities around the country and often supported in part by HUD’s Office of Fair Housing and Equal Opportunity. According to the New York Law Journal story, “Under the agreement filed Thursday, the league would discard its old constitution and by-laws and adopt a new one declaring membership open to all backgrounds. Long Island Housing Services, a co-plaintiff, will monitor board minutes and membership applications for four years.”LIHS describes its mission as “the elimination of unlawful discrimination and promotion of decent and affordable housing through advocacy and education.” But besides providing expert knowledge of the law and real estate practice, the strength that a private fair housing agency brings to an aggrieved complainant like the Kneers is “organizational standing” that permits the agency to bring a fair housing complaint.For the past several years, private fair housing agencies have been under attack in Congress and around the country. Opponents of fair housing agencies argue that these nonprofits prey on innocent landlords in order to win settlements that support their programs. This past year, as Congress struggled with end-of-the-session appropriations to prevent a government shutdown, a rider attached to the appropriations bill would have blocked federal funding to private fair housing agencies. In Ohio, a concerted effort to hamstring fair housing enforcement by the National Real Estate Investors Association and its Ohio affiliate was blocked by fair housing advocates in 2014 and 2015, supported by a barrage of newspaper editorials.Private fair housing agencies will probably continue to be targets of property interests and ideologically motivated opponents. Such agencies act as the front door of enforcement where ordinary citizens who believe that something is wrong can find a sympathetic ear and a professional analysis of their stories. As discrimination becomes less obvious, their investigative expertise becomes ever more important to citizens and communities.—Spencer WellsShare17Tweet1ShareEmail18 Shares
The Dodd-Frank Act enacted in July 2010 contained whistleblower provisions applicable to all securities law violations including those under the Foreign Corrupt Practices Act.In this prior post from July 2010, I predicted that the whistleblower provisions would have a negligible impact on FCPA enforcement. As noted in this prior post, my prediction was an outlier (so it seemed) compared to the flurry of law firm client alerts that predicted that the whistleblower provisions would have a significant impact on FCPA enforcement. Many FCPA Inc. participants seemed so eager for a marketing opportunity to sell compliance services, that some even called the generic whistleblower provision the FCPA’s “new” whistleblower provisions.Whatever your initial view on how the whistleblower provisions may impact FCPA enforcement, it was previously noted that the best part of the whistleblower provisions were that its impact on FCPA enforcement could be monitored and analyzed because the SEC is required to submit annual reports to Congress.Recently, the SEC released (here) its annual report for FY2016 and, like the prior five years, FCPA “tips” continue to be a minor component of the SEC’s whistleblower program.Specifically, according to the SEC’s report, of the 4,218 whistleblower tips received by the SEC in FY2016, 5.6% (238) related to the FCPA.As noted in this similar post from last year, of the 3,923 whistleblower tips received by the SEC in FY205, 4.7% (186) related to the FCPA. As noted in this similar post from two years ago, of the 3,620 whistleblower tips received by the SEC in FY2014, 4.4% (159) related to the FCPA. As noted in this similar post from three years ago, of the 3,238 whistleblower tips received by the SEC in FY2013, 4.6% (149) related to the FCPA. As noted in this similar post from four years ago, of the 3,001 whistleblower tips received by the SEC in FY2012, 3.8% (115) related to the FCPA. In FY2011 (a partial reporting year) of the 334 whistleblower tips received by the SEC, 3.9% (13) related to the FCPA.Since the program began, the SEC has received 18,334 tips and 4.6% (860) related to the FCPA.Another interesting figure to note is that the 860 FCPA tips have yielded perhaps only 1 whistleblower bounty paid in connection with an FCPA enforcement action. This represents a paltry .1% yield. Stated differently 99.9% of FCPA “tips” received by the SEC have not yielded a whistleblower bounty.The above paragraph uses the term “perhaps” because, as highlighted in this prior post, an Australian media report regarding the BHP Billiton enforcement action is the only information in the public domain suggesting that a whistleblower bounty has been paid in connection with an FCPA enforcement action. However, as highlighted in the post, the report is questionable given that the SEC’s investigation of BHP Billiton began in 2009 – a year prior to the whistleblower provisions being enacted into law.Regardless, I stand by my prediction, now 6.5 years old, that Dodd-Frank’s whistleblower provisions will have a negligible impact on FCPA enforcement.Indeed, it is no longer a prediction but a fact.