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In a decision issued on Sept. 29, 2025, the Securities and Exchange Commission (SEC) denied awards to two whistleblowers whose information clearly helped expose serious misconduct, but whose initial disclosures to the public reached the SEC indirectly before the whistleblower filed a formal Form TCR (Tip, Complaint or Referral).
The two whistleblowers in question published reports online, which the SEC found and triggered a successful Commission investigation. The SEC conceded that the two whistleblowers were the original sources of these reports, that the reports led to successful enforcement, and that the whistleblowers filed timely TCRs, which included the reports as attachments. Yet, because the SEC began its investigation after independently finding the whistleblowers’ reports, and not based on the TCRs, the SEC held the whistleblowers had not “provided information to the Commission that caused the opening of the Investigation.” The consolidated matters in John Doe v. SEC (11th Cir. dockets 25-13647 and 25-14016) are being reviewed by the U.S. Court of Appeals for the Eleventh Circuit.
On the surface, it appears the SEC is using a technicality to disqualify whistleblowers who make disclosures to media sources before reporting to the Commission. If the Eleventh Circuit rules in the SEC’s favor, it would prevent qualified whistleblowers from receiving awards and deter whistleblowers from reporting information in the public interest to media sources.
In this Sunday Read, National Whistleblower Center (NWC) will explore the amicus brief it submitted to the Eleventh Circuit and how whistleblowers’ rights hang in the balance.
A Friendly, Brief Refresher on Amicus Curiae
Amicus curiae translates from Latin to “friend of the court.” An amicus is an individual or organization who is not a party to a legal case, but is permitted to assist by offering information, expertise, or insight that has a bearing on the issues. The decision of whether to consider an amicus brief lies within the discretion of the court.
The input of “friends of the court” can provide a wealth of knowledge to judges and contextualize many key details to demonstrate the tangible implications of a court setting a particular precedent. Through amicus briefs, organizations and individuals who will be impacted by the outcome of important cases are able to participate in the deliberation and advocate for their desired outcome, making courts aware of the meaning a decision would have outside the facts of a particular case.
NWC’s Strong History of Amicus Filings
NWC has a legacy of submitting amicus briefs when whistleblower issues are a factor in critical cases. Since its founding in 1988, NWC has filed amicus briefs in more than three dozen whistleblower cases at both the state and federal levels. This advocacy is critical to stopping disastrous decisions.
A recent example occurred in 2023, when NWC aligned with various advocacy groups, as well as Sen. Chuck Grassley (R-IA), and filed amicus curiae briefs to the Supreme Court of the United States (SCOTUS) ahead of the Supervalu case,which was comprised of consolidated cases regarding pharmacies overbilling Medicare and Medicaid. SCOTUS unanimously ruled that a defendant’s liability under the False Claims Act (FCA) depends on their subjective belief at the time they submitted a claim, rather than whether their actions were “objectively reasonable.” This decision was a win for NWC advocacy and millions of Medicare and Medicaid recipients.
The amicus brief NWC presented to the U.S. Court of Appeals for the Eleventh Circuit in the Doe case poses critical questions: Will whistleblowers who first sound the alarm through the news media remain protected and eligible for rewards? Or will they be penalized for choosing transparency?
A New Barrier for Media Whistleblowers
Harkening back to the SEC’s Doe ruling, its result was reached by drawing a sharp distinction between two categories of information received by the Commission:
- Information a whistleblower makes public that sparks an SEC investigation, which the whistleblower later submits through a TCR,
- A TCR that itself directly prompts an investigation.
Under the SEC’s new reading of the “led to” requirement in SEC Whistleblower Rule Section 21F, only that last category qualifies for an award, even if all three rest on the exact same disclosure by the same person. For whistleblowers who go to the press first — often out of a concern for the public safety or due to a lack of legal guidance — the SEC’s message is clear: speak publicly and risk losing your chance at a reward.
What Congress Actually Designed
NWC’s amicus brief in John Doe v. SEC explains why this interpretation is at odds with the Dodd-Frank Act’s text, history, and purpose — and with the broader architecture of U.S. whistleblower law. The Dodd-Frank Act was signed into law in 2010 to promote financial stability by improving accountability and transparency in the financial system, and a key provision of the law was the creation of the SEC Whistleblower Program.
Congress did not write the concept of “original information” from scratch; it borrowed it from the FCA and the IRS whistleblower program, which have both been re-engineered in the past 40 years to ensure that whistleblowers who go first to Congress, other agencies, or the news media remain fully eligible for awards if they are the original source of the information the government relies on. In other words, the distinction the SEC draws between a whistleblower who makes a public disclosure leading to enforcement which they submit through a TCR and a whistleblower whose TCR itself leads to enforcement is found nowhere in Dodd-Frank’s text and is clearly contradicted by decades of Congressional history.
As noted in NWC’s amicus brief:
Covering media-first whistleblowers is the only interpretation of “original source” consistent with (and mandated by) the law, the only interpretation consistent with the IRS law (which was the basis for Dodd-Frank), and the only interpretation that follows Congress’s categorical imperative that a “jurisdictional bar,” regardless of what it is called, ought never be used to disqualify a whistleblower.
The Reality of Media-First Whistleblowing
NWC’s amicus brief grounds this legal argument in the stories of three prominent whistleblowers whose experiences highlight why media‑first disclosures are often essential to investor protection and public safety.
Sherron Watkins, former Enron vice president and Time Magazine Person of the Year in 2002, saw the government investigation begin only after newspapers exposed the fraud. Under the SEC’s current logic, a media‑first Enron whistleblower could be denied an award simply because the Commission read the news before seeing a TCR.
Dr. Aaron Westrick exposed defective bulletproof vests sold to police and the military by first providing insider information to the media. His action helped spark congressional and governmental investigations that ultimately led to more than $100 million in recoveries and tens of millions to replace unsafe vests. In an SEC context, that same sequencing could now mean no award at all.
Erika Cheung, a key whistleblower in the Theranos scandal, saw meaningful regulatory action only after the Wall Street Journal publicized whistleblower allegations, despite earlier reports to state authorities. Her case demonstrated how media coverage can break institutional inertia and swiftly protect thousands of patients.
These stories mirror the very pattern the SEC penalized: insiders who choose the press first, triggering precisely the kind of enforcement outcomes Congress sought when it built modern whistleblower programs. Watkins and Westrick made their disclosures before Dodd-Frank existed. But if they had tried to qualify for an award under Dodd-Frank, they could have been disqualified for the same reason as the whistleblowers in Doe – or worse, disincentivized from going to the press at all by the SEC’s actions.
Why NWC’s Brief Matters for the Future
NWC has frequently stepped in when narrow interpretations threaten to hollow out whistleblower protections and the precedent at stake in the Eleventh Circuit reaches far beyond securities law. Multiple whistleblower statutes – covering commodities, anti‑money‑laundering, and motor vehicle safety – use the same “original information” language as Dodd‑Frank. If the SEC’s approach stands, it will signal to insiders across sectors that going to the press increases not only their personal risk, but their chances of being cut out of the very reward systems Congress designed to encourage them.
“The paradox is stark. Under the SEC’s recent decisions, whistleblowers are better off, financially, if they keep evidence out of the public domain and avoid prompting early investigations,” said NWC Chairman and Co-Founder Stephen Kohn. “The Eleventh Circuit, guided by NWC’s amicus brief, now has the opportunity to reject that perverse incentive and reaffirm a basic principle: those who are the original source of information exposing fraud cannot and should not lose their rights because they chose to warn the public first.”
Warning against the dangers of the SEC’s logic in this case, NWC wrote in its brief:
With whistleblowers hesitant to report their allegations to the news media in fear of being ineligible for an SEC reward – or even worse, deciding not to come forward at all – the government loses effective informants on corporate misconduct, journalists lose credible sources, and the public is denied knowledge of widespread fraud that may impact them directly. To exclude whistleblowers who go to the news media from the SEC’s enforcement scheme would work directly against the program’s regulatory structure and contradict the admitted reliance of the Commission on news media reports by working against the very existence of those reports.
Resources For Whistleblowers
The decision to come forward is not one to be taken lightly, nor should selecting a whistleblower lawyer. NWC provides resources that can connect you with the right legal professional.
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This story was written by Justin Smulison, a professional writer, podcaster, and event host based in New York.
