NY State Senate Bill 2013-S4362

Senate Bill S4362

2013-2014 Legislative Session

Relates to protecting and compensating whistleblowers who provide original information to the department of financial services as to violations of certain laws

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Archive: Last Bill Status - In Senate Committee Finance Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 08, 2014	referred to finance
Mar 22, 2013	referred to finance

co-Sponsors

2013-S4362 (ACTIVE) - Details

Current Committee:: Senate Finance
Law Section:: Financial Services Law
Laws Affected:: Amd §104, add §410, Fin Serv L

2013-S4362 (ACTIVE) - Summary

Relates to protecting and compensating whistleblowers who provide original information to the department of financial services as to violations of the banking, insurance, and financial services laws and any other applicable law.

2013-S4362 (ACTIVE) - Sponsor Memo

                                BILL NUMBER:S4362

TITLE OF BILL:  An act to amend the financial services law, in
relation to protecting and compensating whistleblowers who provide
original information to the department of financial services as to
violations of the banking law, the insurance law, the financial
services law and any other applicable law

Purpose of the Bill:  This bill would amend the Financial Services Law
(FSL) in order to provide a mechanism for rewarding employees of
financial services providers who disclose information of wrongdoing to
the Department of Financial Services (Department or DFS) that forms
the basis for a successful enforcement action against institutions by
DFS.  Summary of Provisions:

Section 1 would amend Section 104 of the FSL to define, among other
terms, "award", "monetary sanctions", and "whistleblower".

Section 2 would amend the FSL to add a new Section 408-a setting forth
the rewards and protections available to whistleblowers under the FSL.

Section 3 would provide for an effective date of 90 days after the
bill becomes law.

Existing Law:  The FSL is currently silent with regard to
whistleblowers and whistleblower protection. Prior Legislative

History:  This is a new bill.

Statement in Support:  Whistleblower protection has expanded into
numerous areas including environmental protection, nuclear power,
corporate fraud and, most recently, the securities industry. The
latter is addressed by specific provisions of the Dodd-Frank Wall
Street Reform and Consumer Protection Act. Dodd-Frank offers
whistleblowers significant incentives and increased protection from
retaliation. Specifically, it authorizes the Securities and Exchange
Commission (SEC) to reward those who provide information concerning
violation of federal securities laws at companies that are required to
report to the SEC. The law also prohibits employers from retaliating
against whistleblowers.

However, sanctions against employers who retaliate against
whistleblowers are currently quite limited in New York. This bill is
consistent with the mandate of DFS to protect consumers and markets
from the misconduct of financial services entities. This would be
accomplished by allowing whistleblowers to share in monetary sanctions
imposed as a result of their disclosure of information regarding the
violation of the insurance, banking and/or financial services law.
Recognizing that it is not uncommon for whistleblowers to be
discriminated against or fired by their employers, the bill creates
legal protections for the latter that parallel the remedies provided
by the New York False Claims Act.

Fiscal Implications: None for the State.

Effective Date:  This bill would take effect 90 days after it becomes
law.

2013-S4362 (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  4362

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                             March 22, 2013
                               ___________

Introduced  by  Sens. SEWARD, GRIFFO -- (at request of the Department of
  Financial Services) -- read twice and ordered printed, and when print-
  ed to be committed to the Committee on Finance

AN ACT to amend the financial services law, in  relation  to  protecting
  and  compensating  whistleblowers  who provide original information to
  the department of financial services as to violations of  the  banking
  law,  the  insurance  law,  the  financial  services law and any other
  applicable law

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Subsection (a) of section 104 of the financial services law
is  amended  by adding seven new paragraphs 6, 7, 8, 9, 10, 11 and 12 to
read as follows:
  (6) "COVERED JUDICIAL OR ADMINISTRATIVE ACTION" SHALL MEAN  ANY  JUDI-
CIAL OR ADMINISTRATIVE ACTION BROUGHT, WITHIN THE SOLE DISCRETION OF THE
SUPERINTENDENT,  BY  THE DEPARTMENT UNDER THE INSURANCE LAW, THE BANKING
LAW OR THIS CHAPTER THAT RESULTS IN FINES, PENALTIES, SETTLEMENT  MONIES
OR  OTHER  MONETARY RESOLUTION ON BEHALF OF THE DEPARTMENT EXCEEDING ONE
MILLION DOLLARS.
  (7) "EMPLOYER" SHALL  MEAN  ANY  INDIVIDUAL  OR  ENTITY  WHO  OR  THAT
RETAINED  THE  SERVICES OF THE WHISTLEBLOWER EITHER BY EMPLOYMENT AGREE-
MENT OR ANY OTHER CONTRACTUAL OR SUB-CONTRACTUAL ARRANGEMENT.
  (8) "MONETARY SANCTIONS" SHALL MEAN:
  (A) ANY MONIES, INCLUDING PENALTIES, DISGORGEMENT AND INTEREST ORDERED
TO BE PAID; AND
  (B) ANY MONIES DEPOSITED INTO A DISGORGEMENT FUND OR OTHER FUND PURSU-
ANT TO THE BANKING LAW, THE INSURANCE LAW OR THIS CHAPTER  OR  RULES  OR
REGULATIONS PROMULGATED THEREUNDER, AS A RESULT OF A COVERED JUDICIAL OR
ADMINISTRATIVE ACTION OR ANY SETTLEMENT OF SUCH ACTION.
  (9) "ORIGINAL INFORMATION" SHALL MEAN INFORMATION THAT:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD08859-02-3

S. 4362                             2

  (A)  IS DERIVED FROM THE INDEPENDENT KNOWLEDGE OR ANALYSIS OF A WHIST-
LEBLOWER;
  (B)  IS  NOT KNOWN TO THE DEPARTMENT FROM ANY OTHER SOURCE, UNLESS THE
WHISTLEBLOWER IS THE ORIGINAL SOURCE OF THE INFORMATION; AND
  (C) IS NOT EXCLUSIVELY DERIVED FROM AN ALLEGATION MADE IN  A  JUDICIAL
OR  ADMINISTRATIVE  HEARING, IN A GOVERNMENTAL REPORT, HEARING, AUDIT OR
INVESTIGATION OR FROM THE NEWS MEDIA,  UNLESS  THE  WHISTLEBLOWER  IS  A
SOURCE OF THE INFORMATION.
  (10)  "RELATED  ACTION" WHEN USED WITH RESPECT TO ANY COVERED JUDICIAL
OR ADMINISTRATIVE ACTION BROUGHT BY THE  DEPARTMENT  UNDER  THE  BANKING
LAW,  THE INSURANCE LAW OR THIS CHAPTER OR RULES AND REGULATIONS PROMUL-
GATED THEREUNDER  SHALL  MEAN  ANY  JUDICIAL  OR  ADMINISTRATIVE  ACTION
BROUGHT BY ANOTHER STATE AGENCY AND/OR FEDERAL REGULATOR OR LAW ENFORCE-
MENT  AGENCY  WITH WHOM THE DEPARTMENT SHARES JURISDICTION THAT IS BASED
UPON THE ORIGINAL INFORMATION PROVIDED BY A WHISTLEBLOWER AND  THAT  WAS
THE  BASIS  OF  THE  DEPARTMENT'S  SUCCESSFUL ENFORCEMENT OF THE RELATED
COVERED JUDICIAL OR ADMINISTRATIVE ACTION.
  (11) "WHISTLEBLOWER" SHALL MEAN ANY INDIVIDUAL WHO PROVIDES, OR TWO OR
MORE INDIVIDUALS ACTING JOINTLY WHO PROVIDE, INFORMATION RELATING  TO  A
VIOLATION  OF  THE BANKING LAW, THE INSURANCE LAW, THIS CHAPTER OR RULES
AND REGULATIONS PROMULGATED THEREUNDER TO THE DEPARTMENT,  IN  A  MANNER
ESTABLISHED, BY RULE OR REGULATION, BY THE DEPARTMENT.
  (12)  "AWARD"  SHALL  MEAN A SHARE  IN ANY MONEY SANCTIONS RECEIVED BY
THE DEPARTMENT PURSUANT TO A COVERED JUDICIAL OR  ADMINISTRATIVE  ACTION
AND PAID TO A WHISTLEBLOWER.
  S 2. The financial services law is amended by adding a new section 410
to read as follows:
  S  410.  WHISTLEBLOWER  AWARDS AND PROTECTIONS. (A) THE SUPERINTENDENT
SHALL GRANT AWARDS TO WHISTLEBLOWERS IN THE AMOUNTS SET FORTH BELOW:
  (1) IN GENERAL, IN ANY COVERED JUDICIAL OR  ADMINISTRATIVE  ACTION  OR
RELATED  ACTION,  THE DEPARTMENT, UNDER RULES AND REGULATIONS PRESCRIBED
BY THE SUPERINTENDENT AND SUBJECT TO THIS SECTION, SHALL PAY AN AWARD OR
AWARDS TO ONE OR MORE WHISTLEBLOWERS WHO VOLUNTARILY  PROVIDED  ORIGINAL
INFORMATION  TO  THE  DEPARTMENT  THAT  WAS THE BASIS FOR THE SUCCESSFUL
ENFORCEMENT OF A COVERED JUDICIAL OR ADMINISTRATIVE ACTION,  OR  RELATED
ACTION, IN AN AGGREGATE AMOUNT EQUAL TO:
  (A) NOT LESS THAN TEN PERCENT, IN TOTAL, OF WHAT HAS BEEN COLLECTED OF
THE MONETARY SANCTIONS IMPOSED IN THE ACTION OR RELATED ACTIONS; AND
  (B) NOT MORE THAN THIRTY PERCENT, IN TOTAL, OF WHAT HAS BEEN COLLECTED
OF THE MONETARY SANCTIONS IMPOSED IN THE ACTION OR RELATED ACTIONS.
  (2)  ANY  AMOUNT  PAID UNDER PARAGRAPH ONE OF THIS SUBSECTION SHALL BE
FIRST APPLIED IN ACCORDANCE WITH THE PROVISIONS OF SUCH PARAGRAPH BEFORE
BEING APPLIED, IF APPLICABLE, IN ACCORDANCE  WITH  SUBPARAGRAPH  (B)  OF
PARAGRAPH  ONE  OF  SUBSECTION (A) OF SECTION FOUR HUNDRED EIGHT OF THIS
ARTICLE.
  (3) IF A RELATED ACTION RESULTS IN  A  MONETARY  RECOVERY  BY  ANOTHER
STATE  AGENCY,  A  FEDERAL  REGULATOR OR A LAW ENFORCEMENT AGENCY OR ANY
COMBINATION OF ANY SUCH ENTITIES, BUT THE DEPARTMENT DOES NOT SHARE  ANY
PORTION  OF  THE RECOVERY, OR ITS SHARE AMOUNTS TO LESS THAN ONE MILLION
DOLLARS, THE DEPARTMENT IS NOT REQUIRED TO PROVIDE  ANY  REWARD  TO  THE
WHISTLEBLOWER.
  (B)(1)  THE  DETERMINATION  OF  THE AMOUNT OF AN AWARD MADE UNDER THIS
SECTION SHALL BE SOLELY IN THE DISCRETION OF THE SUPERINTENDENT.
  (2) IN DETERMINING THE AMOUNT OF AN AWARD MADE UNDER THIS SECTION, THE
SUPERINTENDENT SHALL TAKE INTO CONSIDERATION THE FOLLOWING FACTORS:

S. 4362                             3

  (A) THE SIGNIFICANCE OF THE INFORMATION PROVIDED BY THE  WHISTLEBLOWER
TO THE SUCCESS OF THE COVERED JUDICIAL OR ADMINISTRATIVE ACTION;
  (B)  THE  DEGREE  OF  ASSISTANCE PROVIDED BY THE WHISTLEBLOWER AND ANY
LEGAL REPRESENTATIVE OF THE  WHISTLEBLOWER  IN  A  COVERED  JUDICIAL  OR
ADMINISTRATIVE ACTION;
  (C)  THE  INTEREST  OF  THE  DEPARTMENT IN DETERRING VIOLATIONS OF THE
BANKING LAW, THE INSURANCE LAW OR THIS CHAPTER; AND
  (D) SUCH ADDITIONAL RELEVANT FACTORS AS THE SUPERINTENDENT MAY  ESTAB-
LISH BY RULE OR REGULATION.
  (C)  NO AWARD SHALL BE MADE TO ANY WHISTLEBLOWER IF THE SUPERINTENDENT
SHALL DETERMINE THAT:
  (1) THE WHISTLEBLOWER  IS,  OR  WAS  AT  THE  TIME  THE  WHISTLEBLOWER
ACQUIRED THE ORIGINAL INFORMATION SUBMITTED TO THE DEPARTMENT, A MEMBER,
OFFICER  OR  EMPLOYEE OF THE DEPARTMENT, ANY AGENCY THAT REGULATES BANK-
ING, INSURANCE OR FINANCIAL SERVICES PRODUCTS,  A  STATE  OR  LOCAL  LAW
ENFORCEMENT ORGANIZATION, ANY FEDERAL LAW ENFORCEMENT ORGANIZATION, OR A
SELF-REGULATORY   AGENCY  REGULATING  BANKING,  INSURANCE  OR  FINANCIAL
SERVICES PRODUCTS;
  (2) THE WHISTLEBLOWER WAS CONVICTED OF A CRIMINAL VIOLATION RELATED TO
THE COVERED JUDICIAL OR ADMINISTRATIVE ACTION FOR WHICH THE WHISTLEBLOW-
ER OTHERWISE COULD RECEIVE AN AWARD UNDER THIS SECTION;
  (3) THE WHISTLEBLOWER FAILED TO SUBMIT INFORMATION TO  THE  DEPARTMENT
IN SUCH FORM AS THE DEPARTMENT MAY REQUIRE; OR
  (4)  THE  WHISTLEBLOWER KNOWINGLY AND WILLFULLY MADE FALSE, FICTITIOUS
OR FRAUDULENT STATEMENTS OR REPRESENTATIONS, OR USED ANY  FALSE  WRITING
OR  DOCUMENT KNOWING THE WRITING OR DOCUMENT CONTAINED FALSE, FICTITIOUS
OR FRAUDULENT STATEMENTS OR ENTRIES, UNLESS SUCH  FALSE,  FICTITIOUS  OR
FRAUDULENT  STATEMENTS OR ENTRIES WERE NOT MADE BY THE WHISTLEBLOWER AND
REFLECT THE CONDUCT AND VIOLATIONS OF LAW THE WHISTLEBLOWER IS  DISCLOS-
ING OR HAS DISCLOSED TO THE DEPARTMENT.
  (D)  (1)  ANY  WHISTLEBLOWER WHO MAKES A CLAIM FOR AN AWARD UNDER THIS
SECTION MAY BE REPRESENTED BY COUNSEL.
  (2) REPRESENTATION SHALL BE REQUIRED WHEN:
  (A) ANY WHISTLEBLOWER WHO ANONYMOUSLY MAKES A CLAIM FOR AN AWARD UNDER
THIS SECTION AND SUBMITS THE INFORMATION UPON WHICH THE CLAIM IS  BASED;
AND
  (B)  BEFORE  THE  PAYMENT  OF  AN AWARD, COUNSEL FOR THE WHISTLEBLOWER
DISCLOSES THE IDENTITY OF THE  WHISTLEBLOWER  AND  PROVIDES  SUCH  OTHER
INFORMATION  AS  THE DEPARTMENT MAY REQUIRE, DIRECTLY OR THROUGH COUNSEL
FOR THE WHISTLEBLOWER, INCLUDING SUCH EVIDENCE AS MAY  BE  NECESSARY  TO
DEMONSTRATE  THAT  THE  WHISTLEBLOWER  WAS  REPRESENTED  BY  COUNSEL  AS
REQUIRED BY THIS SECTION.
  (E) NO CONTRACT WITH THE DEPARTMENT SHALL BE NECESSARY FOR ANY  WHIST-
LEBLOWER  TO  RECEIVE  AN  AWARD  UNDER  THIS  SECTION, UNLESS OTHERWISE
REQUIRED BY THE DEPARTMENT BY RULE OR REGULATION.
  (F) ANY DETERMINATION MADE UNDER THIS SECTION, INCLUDING  WHETHER,  TO
WHOM,  OR  IN  WHAT  AMOUNT  TO  MAKE  AWARDS,  SHALL  BE  SOLELY IN THE
DISCRETION OF THE SUPERINTENDENT. ANY SUCH DETERMINATION  MAY  BE  CHAL-
LENGED  IN  ACCORDANCE  WITH ARTICLE SEVENTY-EIGHT OF THE CIVIL PRACTICE
LAW AND RULES, PROVIDED THAT ANY SUCH CHALLENGE SHALL BE BROUGHT  WITHIN
FORTY-FIVE DAYS OF THE DATE OF ANY SUCH DETERMINATION UNDER CHALLENGE.
  (G)  (1)  NO  EMPLOYER  MAY  DISCHARGE,  DEMOTE,  SUSPEND, THREATEN OR
HARASS, DIRECTLY OR INDIRECTLY, OR  IN  ANY  OTHER  MANNER  DISCRIMINATE
AGAINST  A  WHISTLEBLOWER  IN  THE  TERMS  AND  CONDITIONS OF EMPLOYMENT
BECAUSE OF ANY LAWFUL ACT DONE BY THE WHISTLEBLOWER:

S. 4362                             4

  (A) IN PROVIDING INFORMATION TO THE DEPARTMENT IN ACCORDANCE WITH THIS
SECTION; AND
  (B)  IN INITIATING, TESTIFYING IN OR ASSISTING IN ANY INVESTIGATION OR
JUDICIAL OR ADMINISTRATIVE ACTION OF THE DEPARTMENT.
  (2) ANY CURRENT OR FORMER EMPLOYEE, CONTRACTOR OR AGENT OF ANY PRIVATE
OR PUBLIC EMPLOYER WHO IS DISCHARGED, DEMOTED, SUSPENDED, THREATENED  OR
HARASSED  OR  IN ANY OTHER MANNER DISCRIMINATED AGAINST IN THE TERMS AND
CONDITIONS OF EMPLOYMENT, OR OTHERWISE HARMED OR PENALIZED BY AN EMPLOY-
ER, OR A PROSPECTIVE EMPLOYER,  BECAUSE  OF  LAWFUL  ACTS  DONE  BY  THE
EMPLOYEE,  CONTRACTOR, AGENT OR ASSOCIATED WITH ACTS OF OTHERS IN FURTH-
ERANCE OF ANY COVERED JUDICIAL OR ADMINISTRATIVE ACTION OR OTHER EFFORTS
TO STOP ONE OR MORE VIOLATIONS OF THE INSURANCE LAW, BANKING LAW OR THIS
CHAPTER SHALL BE ENTITLED TO ALL RELIEF NECESSARY TO MAKE THE  EMPLOYEE,
CONTRACTOR  OR AGENT WHOLE. SUCH RELIEF SHALL INCLUDE BUT NOT BE LIMITED
TO:
  (A) AN INJUNCTION TO RESTRAIN CONTINUED DISCRIMINATION;
  (B) HIRING, CONTRACTING OR REINSTATEMENT TO THE POSITION  SUCH  PERSON
WOULD HAVE HAD BUT FOR THE DISCRIMINATION OR TO AN EQUIVALENT POSITION;
  (C) REINSTATEMENT OF FULL FRINGE BENEFITS AND SENIORITY RIGHTS;
  (D) PAYMENT OF TWO TIMES BACK PAY, PLUS INTEREST; AND
  (E)  COMPENSATION FOR ANY SPECIAL DAMAGES SUSTAINED AS A RESULT OF THE
DISCRIMINATION, INCLUDING LITIGATION  COSTS  AND  REASONABLE  ATTORNEYS'
FEES.
  (3)  FOR  PURPOSES  OF THIS SECTION, A "LAWFUL ACT" SHALL INCLUDE, BUT
NOT BE LIMITED TO,  OBTAINING  OR  TRANSMITTING  TO  THE  DEPARTMENT  OR
PRIVATE  COUNSEL SOLELY EMPLOYED TO INVESTIGATE OR POTENTIALLY FILE WITH
THE DEPARTMENT INFORMATION RELATING TO VIOLATIONS OF  THE  BANKING  LAW,
THE  INSURANCE  LAW,  OR THIS CHAPTER EVEN THOUGH SUCH ACT MAY VIOLATE A
CONTRACT, SEVERANCE AGREEMENT, EMPLOYMENT TERM,  OR  DUTY  OWED  TO  THE
EMPLOYER OR CONTRACTOR.
  (H) THE DEPARTMENT AND ANY OFFICER OR EMPLOYEE OF THE DEPARTMENT SHALL
NOT DISCLOSE ANY INFORMATION, INCLUDING INFORMATION PROVIDED BY A WHIST-
LEBLOWER TO THE DEPARTMENT, WHICH COULD REASONABLY BE EXPECTED TO REVEAL
THE  IDENTITY  OF  A WHISTLEBLOWER, UNLESS IN THE JUDGMENT OF THE SUPER-
INTENDENT THE ENDS OF JUSTICE AND THE PUBLIC ADVANTAGE WILL BE SERVED BY
RELEASE OF SUCH INFORMATION.
  (I) NOTHING IN  THIS  SECTION  IS  INTENDED  TO  LIMIT,  OR  SHALL  BE
CONSTRUED  TO  LIMIT  THE  SUPERINTENDENT'S AUTHORITY UNDER SECTIONS TWO
HUNDRED TWO AND THREE HUNDRED ONE OF THIS CHAPTER, OR THAT OF OTHER  LAW
ENFORCEMENT  AUTHORITY  PROVIDED  UNDER SECTION FOUR HUNDRED SIX OF THIS
ARTICLE.
  (J) THE RIGHTS AND REMEDIES PROVIDED FOR IN THIS SECTION  MAY  NOT  BE
WAIVED  BY  ANY  AGREEMENT,  POLICY  FORM,  OR  CONDITION OF EMPLOYMENT,
INCLUDING BY A PRE-DISPUTE ARBITRATION AGREEMENT,  WHICH  SHALL  NOT  BE
VALID  OR  ENFORCEABLE  IF  IT REQUIRES ARBITRATION OF A DISPUTE ARISING
UNDER THIS SECTION. NO SALARY  OR  WAGES  EARNED  BY  THE  WHISTLEBLOWER
DURING  HIS OR HER EMPLOYMENT, NOR ANY CONSIDERATION PROVIDED THE WHIST-
LEBLOWER IN CONNECTION WITH HIS OR HER SEVERANCE FROM  SUCH  EMPLOYMENT,
RELATED  TO  ORIGINAL INFORMATION OR THE COVERED JUDICIAL OR ADMINISTRA-
TIVE ACTION MAY BE RECOUPED BY  ANY  RIGHT  OF  ACTION  BROUGHT  BY  THE
EMPLOYER.
  (K)  THE  SUPERINTENDENT IS HEREBY AUTHORIZED AND EMPOWERED TO PROMUL-
GATE SUCH RULES AND REGULATIONS AS THE SUPERINTENDENT SHALL DEEM  APPRO-
PRIATE FOR THE ENFORCEMENT OF THIS ACTION.
  S  3.  This  act shall take effect on the ninetieth day after it shall
have become a law.

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Senate Bill S4362

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