Confidentiality Agreement Crackdown, Revisited

If there was any question whether the Securities and Exchange Commission was serious in its efforts to clamp down on confidentiality statements, Office of the Whistleblower Chief Sean McKessy put it to rest during a recent American Bar Association webinar titled “New Developments in Whistleblower Claims and the SEC,” which took place on Wednesday.ThinkstockPhotos-155172325

Some of you may recall the story we published earlier this month titled “Cracking Down on Confidentiality Agreements,” in which I reported on the SEC’s first “enforcement action” against a company it said had used restrictive language in its confidentiality agreements.

More precisely, the SEC charged the Houston-based engineering firm KBR Inc. of violating whistleblower protection Rule 21F-17 by requiring witnesses in certain internal-investigation interviews to sign confidentiality statements saying violators could face discipline, including termination, if they discussed the matters with outside parties without KBR’s approval.

Most of the experts I spoke to for that story predicted that the SEC wasn’t likely to stop with KBR in pursuing such violations—and  McKessy’s remarks on Wednesday seemed to back up those claims.

On Thursday, Seyfarth Shaw attorney Ada W. Dolph, who was one of the sources for my original story, provided some commentary on McKessy’s remarks, writing in a memo that McKessy pointed out in the ABA webinar that the SEC rule is “very broad,” and “intentionally so.”

Dolph, based in her firm’s Chicago office, continued …

“McKessy stated that this initiative remains a ‘priority’ for him and his office. ‘To the extent that we have come across this language [restricting whistleblowers] in a Code of Conduct’ or other agreements, the SEC has taken the position that it ‘falls within our jurisdiction and we have the ability to enforce it.’ He noted that ‘KBR is a concrete case to demonstrate what I have been saying,’ referencing public remarks he has made in the past regarding SEC scrutiny of employment agreements. He stated that the agency is continuing to take affirmative steps to identify agreements that violate the Rule, including soliciting individuals to provide agreements for the SEC to review. Additionally, he reported that the SEC is reviewing executive severance agreements filed with Forms 8-K for any potential violations of the Rule.”

Dolph pointed out that McKessy also addressed the question of whether the SEC would apply the KBR order to private companies under the U.S. Supreme Court’s 2014 ruling in Lawson v. FMR LLC, 134 S.Ct. 1158 (2014)—which expanded Sarbanes-Oxley’s whistleblower protections to employees of private companies who contract with public companies. McKessy, she reported, “stated that the SEC has not officially taken a position on this issue, but in his personal opinion he ‘certainly can see a logical thread behind the logic of the Lawson decision’ to be ‘expanded into this space [private companies],’ and that ‘anyone who has read the Lawson decision can extrapolate from it the broader application.’ ”

In short, Dolph concluded, “it is clear that we can expect further SEC enforcement actions in this area.”

Granted, that’s pretty much been the expectation all along. But McKessy’s remarks should, at the very least, be considered a not-so-friendly reminder that you might not want to wait too long before reviewing your confidentiality agreements and policies in order to ensure they aren’t worded in a way that would catch the attention of SEC officials.