Are CFTC whistleblowers protected against retaliation?

Section 23(h)(1) of the Commodity Exchange Act protects a whistleblower providing information to the CFTC Office of the Whistleblower or assisting in any investigation or judicial or administrative action based upon or related to the whistleblower’s tip to the CFTC.  The anti-retaliation protections apply regardless of whether the whistleblower satisfies the requirements, procedures, and conditions to qualify for a CFTC whistleblower award.

Protected whistleblowing includes reporting market manipulation, spoofing, illegal off-exchange activity, cryptocurrency fraud, manipulation of commodity benchmarks, misappropriation of investor funds, recordkeeping violations, or a registrant’s failure to supervise, insider trading, or failure to comply with business conduct standards.

Section 23(h)(1)(A) of the Commodity Exchange Act (7 U.S.C. 26(h)(1)(A)) provides: “No employer may discharge, demote, suspend, threaten, 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: (i) in providing information to the Commission in accordance with subsection (b); or (ii) in assisting in any investigation or judicial or administrative action of the Commission based upon or related to such information.”

The CEA prohibits an employer from discharging, demoting, suspending, threatening or harassing, or in any other manner discriminating against, a whistleblower in the terms and conditions of employment because of any protected whistleblowing.

To prevail, a whistleblower must prove “but-for” causation, which is not tantamount to “sole factor” causation.  In Bostock v. Clayton Cty., the Supreme Court clarified the burden of proving “but for” causation:

Title VII’s ‘because of’ test incorporates the ‘ ‘simple’ ’ and ‘traditional’ standard of but-for causation. Nassar, 570 U. S., at 346, 360, 133 S. Ct. 2517.  That form of causation is established whenever a particular outcome would not have happened ‘but for’ the purported cause. See Gross, 557 U. S. at 176, 129 S. Ct. 2343. In other words, a but-for test directs us to change one thing at a time and see if the outcome changes.  If it does, we have found a but-for cause.

140 S. Ct. 1731, 1739 (2020).

Yes, the CEA authorizes a whistleblower to bring a CFTC whistleblower retaliation claim in federal court.

Two years after the date on which the act of retaliation is committed.

A prevailing whistleblower can obtain reinstatement, back pay (lost wages), and compensation for any special damages sustained as a result of the discharge or discrimination, including litigation costs, expert witness fees, and reasonable attorneys’ fees.

Yes, the CFTC can impose penalties on employers that violate the CFTC whistleblower protection law.

No.  The Dodd-Frank Act expressly provides that CFTC whistleblower retaliation claims are not subject to predispute arbitration agreements.  See 7 U.S.C. § 26(n).

Yes, other federal and state whistleblower protection laws may provide an additional remedy, including New York's recently amended whistleblower protection law.