The Rise of Whistleblower Bounties to Prevent and Deter Corporate Wrongdoing
Vikramaditya Khanna, William W. Cook Professor of Law, University of Michigan Law School
Many statutes now permit bounties for whistleblowers who provide enforcement relevant information to the authorities. The growth in such bounties has been quite rapid in recent years generating substantial scholarly, policy and practical interest. However, much of the scholarship does not address a critical feature of corporate liability in the US – there is considerable uncertainty about both the scope and definition of wrongdoing. This talk examines the effects of this uncertainty on the desirable structure and incidence of bounty regimes. Some key findings are that the greater this uncertainty the harder it will be to gather information about wrongdoing both within a firm and more generally because individuals will likely be reluctant to share information that might be relevant to enforcement. This has numerous effects. First, as gathering and sharing of information becomes more difficult it will become harder to deter and prevent wrongdoing, which in part depends on gathering and sharing information. Second, weaker gathering and sharing of information within the firm will hamper the ability of employees to work together cohesively. This not only worsens firm performance (which has its own costs), but also is likely to increase wrongdoing because poor firm performance is a key predicator of corporate wrongdoing. The analysis thus counsels caution in extending whistleblower bounties to areas where the underlying law is uncertain, provides insights on how one might design a bounty system in light of this uncertainty (e.g., differentiating between internal and external whistleblowers, varying bounties by firm size), and lays out certain steps that might be taken to ameliorate some of the identified effects of uncertainty.