§ 165.18 17 CFR Ch. I (4–1–12 Edition) Commission will not take into account which must be filed in the appropriate dis- any monetary sanctions that the whis- trict court of the United States within two tleblower is ordered to pay, or that is (2) years of the employer’s retaliatory act; ordered against any entity whose li- and potential relief for prevailing whistle- ability is based primarily on conduct blowers, including reinstatement, back pay, that the whistleblower principally di- and compensation for other expenses, includ- ing reasonable attorney’s fees. rected, planned, or initiated. Similarly, (a) In General. No employer may discharge, if the Commission determines that a demote, suspend, threaten, harass, directly whistleblower is eligible for an award, or indirectly, or in any other manner dis- any amounts that the whistleblower or criminate against, a whistleblower in the such an entity pay in sanctions as a re- terms and conditions of employment because sult of the action or related actions of any lawful act done by the whistle- will not be included within the calcula- blower— tion of the amounts collected for pur- (1) In providing information to the Com- poses of making payments pursuant to mission in accordance with this part 165; or § 165.14. (2) In assisting in any investigation or ju- dicial or administrative action of the Com- § 165.18 Staff communications with mission based upon or related to such infor- whistleblowers from represented mation. entities. (b) Enforcement—(1) Cause of Action.—An in- If the whistleblower is a whistle- dividual who alleges discharge or other dis- blower who is a director, officer, mem- crimination in violation of section ber, agent, or employee of an entity 23(h)(1)(A) of the Commodity Exchange Act that has counsel, and the whistle- may bring an action under section 23(h)(1)(B) blower has initiated communication of the Commodity Exchange Act in the ap- with the Commission relating to a po- propriate district court of the United States for the relief provided in section 23(h)(1)(C) tential violation of the Commodity Ex- of the Commodity Exchange Act, unless the change Act, the Commission’s staff is individual who is alleging discharge or other authorized to communicate directly discrimination in violation of section with the whistleblower regarding the 23(h)(1)(A) of the Commodity Exchange Act subject of the whistleblower’s commu- is an employee of the Federal Government, nication without seeking the consent in which case the individual shall only bring of the entity’s counsel. an action under section 1221 of title 5, United States Code. § 165.19 Nonenforceability of certain (2) Subpoenas.—A subpoena requiring the provisions waiving rights and rem- attendance of a witness at a trial or hearing edies or requiring arbitration of conducted under section 23(h)(1)(A) of the disputes. Commodity Exchange Act may be served at The rights and remedies provided for any place in the United States. in this part 165 of the Commission’s (3) Statute of Limitations.—An action under regulations may not be waived by any section 23(h)(1)(B) of the Commodity Ex- agreement, policy, form, or condition change Act may not be brought more than 2 of employment, including by a years after the date on which the violation predispute arbitration agreement. No reported in Section 23(h)(1)(A) of the Com- predispute arbitration agreement shall modity Exchange Act is committed. be valid or enforceable if the agree- (c) Relief.—Relief for an individual pre- vailing in an action brought under section ment requires arbitration of a dispute 23(h)(1)(B) of the Commodity Exchange Act arising under this part. shall include— (1) Reinstatement with the same seniority APPENDIX A TO PART 165—GUIDANCE status that the individual would have had, WITH RESPECT TO THE PROTECTION but for the discrimination; OF WHISTLEBLOWERS AGAINST RE- (2) The amount of back pay otherwise owed TALIATION to the individual, with interest; and Section 23(h)(1) of Commodity Exchange (3) Compensation for any special damages Act prohibits employers from engaging in re- sustained as a result of the discharge or dis- taliation against whistleblowers. This provi- crimination, including litigation costs, ex- sion provides whistleblowers with certain pert witness fees, and reasonable attorney’s protections against retaliation, including: A fees. federal cause of action against the employer, 982 Commodity Futures Trading Commission Pt. 165, App. A 983 Pt. 165, App. A 17 CFR Ch. I (4–1–12 Edition) 984 Commodity Futures Trading Commission Pt. 165, App. A 985 Pt. 165, App. A 17 CFR Ch. I (4–1–12 Edition) 986 Commodity Futures Trading Commission Pt. 165, App. A 987 Pt. 165, App. A 17 CFR Ch. I (4–1–12 Edition) 988 Commodity Futures Trading Commission Pt. 165, App. A 989 Pt. 165, App. A 17 CFR Ch. I (4–1–12 Edition) PRIVACY ACT STATEMENT to XXXXX.gov; or by facsimile to (202) XXX– XXXX. This notice is given under the Privacy Act • of 1974. The Privacy Act requires that the The whistleblower has the right to sub- Commodity Futures Trading Commission mit information anonymously. • (CFTC or Commission) inform individuals of If the whistleblower is submitting infor- the following when asking for information. mation for the Commission’s whistleblower This form may be used by anyone wishing to award program, the whistleblower must sub- provide the CFTC with information con- mit the whistleblower’s information using cerning a violation of the Commodity Ex- this Form TCR. change Act or the Commission’s regulations. INSTRUCTIONS FOR COMPLETING FORM TCR If the whistleblower is submitting this infor- mation for the Commission’s whistleblower Section A: Information About You award program pursuant to Section 23 of the Commodity Exchange Act, the information Questions 1–4: Please provide the following provided will enable the Commission to de- information about yourself: termine the whistleblower’s eligibility for • Last name, first name, and middle ini- payment of an award. This information may tial; be disclosed to Federal, state, local, or for- • Complete address, including city, state eign agencies responsible for investigating, and zip code; prosecuting, enforcing, or implementing • Telephone number and, if available, an laws, rules, or regulations implicated by the alternate number where the whistleblower information consistent with the confiden- can be reached; tiality requirements set forth therein, in- • The whistleblower’s e-mail address (to cluding pursuant to Section 23 of the Com- facilitate communications, we strongly en- modity Exchange Act and Part 165 of the courage the whistleblower to provide the Commission’s regulations thereunder. Fur- whistleblower’s email address); nishing the information is voluntary, but a • The whistleblower’s preferred method of decision not to do so may result in the whis- communication; and tleblower not being eligible for award consid- • The whistleblower’s occupation. eration. Questions concerning this form may be di- Section B: Information about the Whistle- rected to the Commodity Futures Trading blower’s Attorney. Complete this Section Only Commission, Three Lafayette Centre, 1155 if the Whistleblower is Represented by an At- 21st Street, NW., Washington, DC 20581. torney in this Matter Questions 1–4: Provide the following infor- SUBMISSION PROCEDURES mation about the attorney representing the • After completing this Form TCR, please whistleblower in this matter: send it electronically, by mail, e-mail or de- • Attorney’s name; livery to the Commission: electronically via • Firm name; the Commission’s Web site; by mail or deliv- • Complete address, including city, state ery to the Commodity Futures Trading Com- and zip code; mission, Three Lafayette Centre, 1151 21st • Telephone number and fax number; and Street, NW., Washington, DC 20581; by e-mail • E-mail address. 990 Commodity Futures Trading Commission Pt. 165, App. A Section C: Tell Us About the Individual and/or insider trading; manipulation/attempted ma- Entity The Whistleblower Has a Complaint nipulation of commodity prices; market tim- Against ing; inaccurate quotes/pricing information; program trading; trading suspensions; vola- If the whistleblower’s complaint relates to tility); more than two individuals and/or entities, • Fees/mark-ups/commissions (excessive, the whistleblower may use additional sheets, unnecessary or unearned administrative, if necessary. commission or sales fees; failure to disclose Question 1: Choose one of the following fees; insufficient notice of change in fees; ex- that best describes the individual’s profes- cessive or otherwise improper spreads or sion or entity’s type to which the whistle- fills); blower’s complaint relates: • Sales and advisory practices (background • For Individuals: Accountant, analyst, as- information on past violations/integrity; sociated person, attorney, auditor, broker, breach of fiduciary duty/responsibility; commodity trading advisor, commodity pool churning/excessive trading; cold calling; con- operator, compliance officer, employee, exe- flict of interest; abuse of authority in discre- cuting broker, executive officer or director, tionary trading; failure to respond to client, financial planner, floor broker, floor trader, customer or participant; guarantee against trader, unknown, or other (specify). loss; promise to profit; high pressure sales • For Entities: Bank, commodity trading techniques; instructions by client, customer advisor, commodity pool operator, com- or participant not followed; investment