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CFTC Scrutinizes Financial Institutions’ Employee Agreements for Any Language that Deters Whistleblowers

Date Published
Apr 25, 2024

APRIL 25, 2024. The Commodity Futures Trading Commission (CFTC) has contacted several of the United States’ largest financial institutions to request their non-disclosure agreements (NDAs) and other client and employee agreements in their swaps and clearings businesses. The CFTC intends to scrutinize these agreements for any language that may deter whistleblowing.

The banks contacted by the CFTC include JPMorgan Chase & Co., Bank of America Corp., and Citigroup Inc., notable financial giants on Wall Street. The CFTC will look through these NDAs for clauses that discourage employees or clients from reporting violations to agencies such as the CFTC. It is important to ensure that these agreements explicitly state that misconduct can be reported and do not have language that impedes whistleblowers from doing so.  The CFTC or SEC has fined firms for certain types of language such as:

  •   “Employee represents and warrants to the Company that the Employee has not made, filed or lodged any complaints, charges, or lawsuits or otherwise directly or indirectly commenced any proceeding against any member of the D. E. Shaw Group and/or any Covered Persons and Entities with any governmental agency, department, or official; any regulatory authority; or any court, other tribunal, or other dispute resolution body.” LINK 
  •  “Nothing in this Section shall be construed or deemed to interfere with any protected right to file a charge or complaint with any applicable federal, state or local governmental administrative agency… You are however waiving your right to any monetary recovery or other individual relief in connection with any charge or complaint filed by you or anyone else.” LINK 
  • departing employees may not “voluntarily contact or participate with any governmental agency in connection with any complaint or investigation pertaining to the Company, and [may] not be employed or otherwise act as an expert witness or consultant or in any similar paid capacity in any litigation, arbitration, regulatory or agency hearing or other adversarial or investigatory proceeding involving the Company” and agree “not to make any independent use of or disclose to any other person or organization, including any governmental agency, any of the Company’s confidential, proprietary information unless [the employee] obtain[ed] the Company’s prior written consent.” LINK 


The prevention of whistleblowing is unlawful, and safeguarding the ability to blow the whistle on corporate misconduct is a paramount goal of the CFTC. They join other government agencies in the effort to drive more individuals with knowledge of unlawful activity to come forward and report it. The Head of CFTC Whistleblower Program emphasized this, stating that “Leads generated from insiders are critically important to any financial enforcement program.” CFTC whistleblowers can receive up to 30 percent of the money collected in a successful case.

If you would like to report securities, commodities, and banking fraud, you can contact attorneys at Tycko & Zavareei LLP.  Eva Gunasekera and Renée Brooker are former officials of the United States Department of Justice and prosecuted whistleblower cases under the False Claims Act and FIRREA. Renée served as Assistant Director at the United States Department of Justice, the office that supervises False Claims Act and FIRREA cases in all 94 United States District Courts. Eva was the Senior Counsel for Health Care Fraud. Eva and Renée now represent whistleblowers. For a free consultation, you can contact Renée at [email protected] (tel.: 202-417-3664) or contact Eva Gunasekera at [email protected]. You can also go to Tycko & Zavareei LLP’s website for whistleblowers to learn more at

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