Aug 28, 2016

A focus on corporate culture, especially at financial institutions, has emerged as a regulatory, public, and media priority in the aftermath of the 2008 financial crisis. With Dodd-Frank, Congress embraced whistleblower statutes as a key instrument to improve corporate culture and governance, and to extirpate undesired and unethical business practices. Despite the clear policy goals, Dodd-Frank’s unclear statutory text has created interpretative controversies. Although Dodd-Frank adds anti-arbitration provisions to preexisting whistleblower statutes, it does not include a dedicated, standalone anti-arbitration provision for Dodd-Frank’s new whistleblower cause of action.

This Article argues that courts should not allow employers to use pre-dispute arbitration agreements to compel whistleblowers to arbitrate their Dodd-Frank claims. To make the case, we review policy concerns for whistleblower actions that favor public actions in public courts. We argue for a pragmatic interpretation of the statute that protects whistleblowers and the public’s right to know by exempting Dodd-Frank’s whistleblowers from arbitration. The Article draws on existing literature discussing the importance of developing case law through court decisions, enforcement and responsiveness to reputational risk, and public supervision of corporate governance issues.

Introduction

I. The Policy Context
     A. A Baseline Federal Default Policy Favors Arbitration
     B. Federal Policy Encourages Whistleblowing
     C. Policy Concerns with Arbitration for Whistleblowers
          1. Whistleblower Litigation Develops Case Law
          2. Reputational Risk Improves Responsiveness
          3. Increased Likelihood of Public Enforcement
          4. Private Arbitration Limits Public’s Ability to Monitor

II. Dodd-Frank’s Oddly Drafted Whistleblower Protections

III. Possible Responses
     A. The Congressional Fix
     B. The Interpretative Fix
          1. The Current Majority View Favors Arbitration
          2. The Minority View Grants Access to Public Courts

Conclusion

Introduction

In 2010, Johnny Burris, forty-four, began working as a broker at one of JPMorgan’s Arizona branches.^[1] In his first few years, he earned glowing performance reviews.^[2] Still, he had some ethical concerns about certain things JPMorgan asked him to do.^[3] He was troubled by internal pressure to push JPMorgan’s own expensive and underperforming investment products on his predominantly retired clients over recommendations that were more aligned with their interests.^[4] Mr. Burris repeatedly brought the issue to his supervisors and even recorded some workplace conversations to create a record.^[5] Shortly thereafter, in late 2012, JPMorgan suspended and subsequently fired Mr. Burris.^[6] He then took his concerns and evidence to the Securities and Exchange Commission (SEC) and The New York Times, thereby officially becoming a whistleblower.^[7] After his termination, Mr. Burris also filed an arbitration claim against JPMorgan, alleging that the company retaliated against him for raising his ethical concerns.^[8] On August 12, 2014, the arbitration panel ruled in JPMorgan’s favor.^[9] More than a year has passed since that ruling, and it now appears that Mr. Burris was onto something.^[10] A recently announced settlement revealed that JPMorgan will pay $307 million to resolve allegations brought against it in connection with its business practices.^[11] Because of the SEC’s new whistleblower bounty program, authorized by the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank),^[12] Mr. Burris and any other helpful whistleblowers that gave information related to the JPMorgan settlement could be awarded between 10 and 30 percent of the two hundred million dollars collected.^[13]

Nations around the world recognize that whistleblowers may be able to change corporate cultures.^[14] Indeed, corporate culture has emerged as a regulatory priority in the aftermath of the 2008 financial crisis.^[15] As a result, in March 2016 the United Kingdom introduced a new regime meant to increase accountability and reporting.^[16] As part of the UK financial regulation reform, financial institutions regulated by the Prudential Regulation Authority (PRA) now must appoint a senior manager to act as the whistleblowers' champion under the Senior Managers' Regime.^[17] Additionally, in order to increase accountability and reporting, financial institutions across the globe have recently started hiring former spies in order to monitor employee behavior and corporate culture more effectively.^[18]

In the United States, Congress drafted Dodd-Frank’s whistleblower provisions as a tool to change corporate culture and root out fraud, corruption, and unethical business practices.^[19] It created an incentive to report unethical and unlawful conduct to the SEC by authorizing a bounty program—allowing the SEC to reward whistleblowers for particularly valuable tips.^[20] This Whistleblower Program proved successful: the seventeen million-dollar award from June 2016 brought "the grand total of whistleblower awards to over eighty-five million dollars since the bounty program began in 2011."^[21] Additionally, Dodd-Frank strengthened existing whistleblower protections by exempting whistleblowers from arbitration under other statutes.^[22] These anti-arbitration provisions matter a great deal because different forums often have different procedures, publicity, and outcomes.

Dodd-Frank’s whistleblower section may be fairly described as inelegantly drafted. Curiously, although Dodd-Frank added anti-arbitration provisions to preexisting whistleblower statutes, it did not include a dedicated, standalone anti-arbitration provision for the new cause of action for whistleblowers under Dodd-Frank (Dodd-Frank Claim).^[23] This Article takes a close look at the impact of omitting an anti-arbitration clause for the Dodd-Frank Claim. If Dodd-Frank’s whistleblowers must seek protection in private arbitration instead of a public court, the whistleblower statutes may not achieve their intended goals.^[24] For persons like Mr. Burris, this means that they may never have a day in court.

Still, Mr. Burris is not the only person who might suffer the consequences of this puzzling omission. Sending whistleblowers to arbitration may diminish Dodd-Frank’s efficacy in ways the legal literature has not yet recognized. In the absence of attention, employers may continue to resolve Dodd-Frank Claims quietly in private arbitration proceedings, denying the public access to the information that would have come to light had the claims been heard in open court. As Dodd-Frank whistleblower cases become more common, courts must determine whether employers may use pre-dispute arbitration agreements to compel whistleblowers to arbitrate their Dodd-Frank Claims.^[25] Although some courts treat the omission of a dedicated anti-arbitration clause as dispositive, others read the Sarbanes-Oxley anti-arbitration clause into the Dodd-Frank Claim.^[26]

This Article argues that underlying policy concerns strongly favor allowing whistleblowers to litigate Dodd-Frank Claims in court, rather than in private arbitration. It calls for either Congressional action or a pragmatic interpretation of the statute that protects whistleblowers. In making this argument, this Article draws on literature regarding statutory construction and public policy, and provides the first contribution to legal scholarship that describes this important emerging issue of whistleblower policy.

I. The Policy Context

The controversy over whether Dodd-Frank’s whistleblowers belong in court or arbitration must be considered in light of the larger policy issues involved. As the next Section explains, even though the federal default policy favors arbitration, that policy should yield to the need to improve whistleblower protection and public insight into corporate misconduct, particularly when dealing with financial institutions.

A. A Baseline Federal Default Policy Favors Arbitration

The federal default policy strongly favors arbitration. Enforcing mandatory arbitration agreements conserves the judicial system’s limited resources by relieving courts from resolving many time-intensive employment disputes.^[27] Although courts once hesitated to enforce pre-dispute arbitration agreements for statutory employment claims,^[28] this position changed in the early 1990s when courts began accepting mandatory arbitration agreements and alternative dispute resolution gained widespread acceptance.^[29] In light of the doctrinal shift towards a default policy of enforcing mandatory arbitration agreements, the only mechanism to guarantee litigants’ access to the courts is to include clear provisions in employment laws that preclude mandatory arbitration.^[30]

B. Federal Policy Encourages Whistleblowing

In what has been viewed as an unrelated area, whistleblower claims have long been recognized as a top policy priority.^[31] Whistleblowers play a critical role in corporate governance, especially in combating corruption and guarding the public from wrongdoing, as well as guaranteeing accountability for the violation of laws.^[32] Legal scholarship has identified five techniques that encourage whistleblowing: (1) Imposing and facilitating legal mandates to disclose certain types of wrongdoing; (2) prohibiting retaliation against whistleblowers and sanctioning those who do so; (3) providing remedies to whistleblowers that suffer from retaliation; (4) encouraging the establishment of platforms to facilitate whistleblowing; and (5) offering rewards to whistleblowers who report wrongdoings.^[33]

Dodd-Frank embraces all of these techniques to encourage whistleblowing and facilitate the flow of information.  Specifically, although Dodd-Frank includes few explicit legal requirements to disclose wrongdoing externally,^[34] the statute reinforces existing internal disclosure mandates, including requirements that attorneys appearing before the SEC disclose concerns about discovered wrongdoing up the corporate ladder and even to the board.^[35] Moreover, elements of the first and second techniques can also be demonstrated in, inter alia, Dodd-Frank’s provision that prohibits retaliation against whistleblowers for making disclosures that are required or protected by the Sarbanes-Oxley Act, the Securities Exchange Act, or other laws and rules subject to SEC jurisdiction.^[36] The third technique, which is the most important one in the context of arbitration agreements, focuses on providing remedies to suffering whistleblowers. Dodd-Frank employs this technique through provisions that expand employee protections against employer retaliation as follows: (1) Excluding Sarbanes-Oxley whistleblower claims from the reach of pre-dispute arbitration agreements;^[37] (2) granting parties a direct private right of action in federal district court when whistleblowers allege retaliation by their employers;^[38] and (3) reinstating employment with the same seniority status that the individual would have had but for the discrimination, as well as compensating for litigation costs and double back pay with interest.^[39] The fourth technique—logistically and organizationally facilitating whistleblowing—is demonstrated in provisions that enable retaliated-against whistleblowing employees to bring enforcement actions directly to federal district courts, rather than first going to the Department of Labor^,[40] and that increase the statute of limitations to do so.^[41] The fifth technique—providing financial incentives—is demonstrated in Dodd-Frank’s provisions that offer awards of 10 to 30 percent of the government’s recovery to individuals who report securities law violations to the SEC or the CFTC if such information results in agency sanctions larger than one million dollars.^[42]

C. Policy Concerns with Arbitration for Whistleblowers

Allowing employers to compel the arbitration of Dodd-Frank claims can potentially alter how financial intermediaries address whistleblower complaints, including how financial intermediaries investigate and respond to internal whistleblowing.^[43] In certain circumstances, private, quiet arbitration should not be a preferred dispute resolution mechanism. Two of the key agencies tasked with enforcing and implementing Dodd-Frank’s provisions—the Consumer Financial Protection Bureau (CFPB) and the SEC—have made placing appropriate limits on arbitration key agenda items.^[44] In fall 2015, the CFPB determined that although it would not ban consumer arbitration clauses per se, it would seek to exclude many class action claims from arbitration.^[45] Similarly, in 2014 Sean McKessy, Chief of the SEC’s Office of the Whistleblower, stated that the SEC is “actively looking for examples of confidentiality agreements, separat[ion] agreements, [and] employment agreements that ... in substance say ‘as a prerequisite to get this benefit you agree you’re not going to come to the commission or you’re not going to report anything to a regulator.’”^[46] Signaling its concern about the issue, the SEC has indicated that agreements designed to suppress information will result in penalties for not only the companies that initiated them, but also the “lawyers who drafted” such agreements or language.^[47] This statement is meant to warn employers about using an employment agreement as a means to curtail or deter Dodd-Frank reporting and claims.^[48]

A variety of other policy concerns also weigh heavily in favor of allowing whistleblowers to litigate their claims in public courts.

1. Whistleblower Litigation Develops Case Law

Historically, a major criticism of arbitration has been that it limits the development of case law.^[49] Disputes that are resolved through private arbitration do not create binding precedent for future cases. When individuals seek to assert rights in arbitration under new statutes, there may be no court decisions interpreting the difficult-to-parse text, meaning that every claimant or defendant will reargue the same controversies time and time again. Commentators have argued that arbitration has pushed employees suing for civil rights violations into individualized arbitration proceedings, rather than into class actions.^[50] This has resulted in a failure to correct systemic civil rights violations in the workplace.^[51]

2. Reputational Risk Improves Responsiveness

During the last few decades, corporate governance scholars have increasingly grown interested in the role of corporate reputation.^[52] When whistleblowers publicize disturbing issues, those issues threaten corporate public relations and reputations, and motivate corporate entities, and especially financial institutions, to respond.^[53]

Of course, whistleblowers leveling public accusations may harm a corporation’s reputation. Although it is extremely challenging for a corporation to change unflattering perceptions about its image after public allegations have been made,^[54] studies have shown that the consequences, in terms of publicity, are much worse when those businesses possess “reputational capital,”^[55] or a “reservoir of goodwill.”^[56] Scholars analyzing this result have argued that corporate reputation is viewed as “both a factor and a consequence of crisis management,”^[57] because positive corporate reputation results in more successful crisis management, which in turn results in enhanced reputation.^[58]

Limiting arbitration and promoting whistleblower actions may help businesses improve their reputations by driving them to act in a timely manner and to manage their crises successfully. Successful crisis management can also involve avoiding fines or significant legal fees, which in turn supports a corporation’s goodwill and improves its public image.^[59] But most relevant to mitigating public relations risks, businesses and whistleblowers are likely to be viewed favorably if they accept and admit guilt.^[60] Businesses that deny culpability, or fire the whistleblowers while accusing them of wrongdoing, are viewed more negatively in the public’s eye, especially if the alleged culpability involves an ethical issue.^[61]

Finally, even though reputation plays a role for all businesses, it is a critical factor for financial intermediaries. For banks,

[r]eputational risk can be defined as the risk arising from negative perception on the part of customers, counterparties, shareholders, investors, debt-holders, market analysts, other relevant parties or regulators that can adversely affect a bank’s ability to maintain existing, or establish new, business relationships and continued access to sources of funding.^[62]

Therefore, a financial institution should be especially concerned with maintaining positive corporate reputations and minimizing reputational risks, as those can lead to credit, market, and legal risks, which can all have horrific effects on a bank’s earnings, liabilities, liquidity, and capital.^[63]

3. Increased Likelihood of Public Enforcement

The effectiveness of a law depends on the remedies it grants to successful plaintiffs.^[64] In the whistleblower context, a reporting employee’s ability to utilize the remedies Dodd-Frank provides is key for the law’s effectiveness. But if a plaintiff is not able to argue her case and instead is forced into an arbitration proceeding, she may perceive a disadvantage from factors such as a suspected employer bias or limitations as to discovery or where to bring the case.^[65] These disadvantages decrease the settlement value of a plaintiff’s case and, consequently, undermine the protections offered to whistleblowers under federal laws—specifically under Dodd-Frank—as well as the likelihood of enforcing the law successfully. As a result, some potential whistleblowers may decide to keep the whistle in the drawer.

Similarly, requiring plaintiffs to resolve their cases via arbitration rather than lawsuits undermines federal policy by diminishing the likelihood of public enforcement. When a whistleblower “blows” the whistle, she is heard internally and possibly externally.^[66] If the business retaliates and fires the whistleblower for raising ethical issues, a public proceeding increases the likelihood that regulators will hear the whistle’s blast.^[67] Focusing on this logic, SEC Commissioner Daniel Gallagher stated that it is not surprising that business organizations are trying to structure secretive agreements to avoid undesired consequences and sanctions relevant under the law.^[68] In the financial intermediation context, part of the reason it has been so difficult to prosecute financial institutions and their executives has been the difficulties the Department of Justice (DOJ) faces in collecting incriminating evidence and materials.^[69] To gain access to information, the DOJ has stressed the importance of whistleblowers and how critical they are to bringing successful cases that would develop much-needed case law.^[70] Arbitration impairs the DOJ’s ability to collect information, to connect with whistleblowers, and to bring cases.

4. Private Arbitration Limits Public’s Ability to Monitor

Open courts have long been celebrated as a tool for helping the public have confidence in the administration of justice.^[71]   In 2013, concerned about public interest implications, Justice Kagan stated in a dissent that “arbitration threatens to become ... a mechanism easily made to block the vindication of meritorious federal claims and insulate wrongdoers from liability.”^[72] This comment reflects a view that many business entities now attempt to suppress evidence of wrongdoing by channeling disputes into private arbitration proceedings. Employers have come up with ways to make employees sign various agreements relating to secrecy, including questionable nondisclosure agreements, that require employees to report wrongdoing to supervisors before going outside the organization, and arbitration agreements that bar employees from openly discussing their case and benefitting from a whistleblower reward.^[73] Nondisclosure agreements are intended to prevent employees from leaving an employer with valuable trade secrets to benefit competitors.^[74] But, even if such agreements are enforceable as they were not intended to hide illegal activity, they may violate federal whistleblower laws.^[75]

Similarly, it is in the public interest to have open and transparent whistleblowing cases, which expose negative business cultures and norms. As stated by former Attorney General Eric Holder, “No financial fraud case is prosecutable unless we have sufficient evidence of intent—we should seek to better equip investigators to obtain this often-elusive evidence. This means, among other things, ... to incentivize witness cooperation and encourage whistleblowers at financial firms to come forward.”^[76] As previously discussed in this Part, forcing whistleblowers into mandatory arbitration has the opposite, chilling effect.

II. Dodd-Frank’s Oddly Drafted Whistleblower Protections

Dodd-Frank’s dense and interrelated statutory text has forced the federal courts to wade through interpretive controversies. For example, the Second Circuit and the Fifth Circuit split over how to identify who actually qualifies as a “whistleblower” under Dodd-Frank.^[77] Although the Fifth Circuit requires a person to report to the SEC to qualify, the Second Circuit defers to the SEC’s interpretation and recognizes internal reporters as whistleblowers.^[78]

The dispute concerns how much of an impact a Dodd-Frank provision incorporating a portion of Sarbanes-Oxley should have in the term’s meaning. The statutory section creating the interlocking relationship between Dodd-Frank and Sarbanes-Oxley reads as follows:

Dodd-Frank’s cross-reference to Sarbanes-Oxley has confounded courts because it creates inconsistency within the statutory section. Dodd-Frank defines a whistleblower as “any individual who provides ... information relating to a violation of the securities laws to the Commission, in a manner established, by rule or regulation, by the Commission.”^[80] This would seemingly indicate that a whistleblower protected under the statute would only be a person that provided information to the SEC. Yet, as one court has observed, Section 78u–6(h)(1)(A)(iii) “is in direct conflict with [Dodd-Frank’s] definition of a whistleblower because it provides protection to persons who have not disclosed information to the SEC.”^[81] To resolve the conflict, the Fifth Circuit adhered to the statutory definition and ruled that only persons that report externally of their organization and to the SEC qualify as whistleblowers.^[82] In contrast, the Second Circuit found that this baffling provision created enough ambiguity for it to defer to the SEC’s own regulatory definition of “whistleblower”—a definition encompassing internal reporting.^[83]

It is difficult to determine how much of Sarbanes-Oxley Congress actually intended to incorporate into Dodd-Frank with Section 78u–6(h)(1)(A)(iii). Specifically, it is not clear if employers may use pre-dispute arbitration agreements to bar public litigation of Dodd-Frank Claims or if that provision also brought over Sarbanes-Oxley’s anti-arbitration provision. While in many instances, legislative history would shed light on Congressional intent, legislative history provides no useful guidance here because Congress, reconciling different versions of the bill, hastily added subdivision (iii) without making its intent clear.^[84] Remarking on the peculiarity of the section, the Second Circuit characterized it as “a kind of legal Lohengrin; ... no one seems to know whence it came.”^[85]

III. Possible Responses

Given the strong policy justifications for ensuring that whistleblowers have access to open courts, a question remains about how to address the issue in light of Dodd-Frank’s flawed statutory text. This Article argues that there are two possible solutions for Dodd-Frank’s whistleblowers: either Congressional intervention or a pragmatic, interpretative fix from courts construing Dodd-Frank’s dense, interrelated statutory text.

A. The Congressional Fix

Congressional action would provide the cleanest way to resolve the controversies. By adding an additional anti-arbitration provision within the same section as the Dodd-Frank Claim, Congress could clearly provide for access to public courts, as it has with so many other whistleblower claims.^[86] At the same time, it could also cure the definitional controversy over what type of reporting qualifies an employee as a whistleblower.

Although desirable, the odds of immediate Congressional action appear low.^[87] In any event, without the political will generated by a financial crisis, it will most likely be many years before another omnibus reform bill might incorporate this fix.

B. The Interpretative Fix

From a pragmatic perspective, the best way to address the issue in the interim may be a judicial interpretation that reads an existing anti-arbitration provision into the Dodd-Frank Claim. Legal pragmatists recognize that statutory interpretation is a difficult task and argue that it should be informed by taking into account the consequences of a particular interpretation.^[88] Other influential voices criticize this approach as cynical and amorphous, dignifying results-oriented reasoning.^[89] A pragmatic approach may be more acceptable when courts face particularly challenging interpretative tasks, such as an internally inconsistent statutory section without any legislative history.^[90]

The interpretative issue for Dodd-Frank’s whistleblowers is whether the statutory cross-reference to Sarbanes-Oxley, that “legal Lohengrin,” also incorporates Sarbanes-Oxley’s anti-arbitration provision.^[91] The anti-arbitration provision that Dodd-Frank added to Sarbanes-Oxley provides that “[n]o predispute arbitration agreement shall be valid or enforceable, if the agreement requires arbitration of a dispute arising under this section.”^[92] This has given rise to a dispute as to what it means to arise under that section. If Dodd-Frank Claims also arise under that section, then whistleblowers may bring court actions. If they do not arise under that section, then employers may funnel the claims to private arbitration proceedings.

In considering this issue, most courts to reach it thus far have chosen to read the statute narrowly and have found that the Sarbanes-Oxley’s anti-arbitration provision does not extend to Dodd-Frank Claims.^[93] Despite this majority reading, an alternative interpretation has emerged, finding that Sarbanes-Oxley’s anti-arbitration provision extends to Dodd-Frank Claims to the extent that those claims also arise under Sarbanes-Oxley.^[94]

1. The Current Majority View Favors Arbitration

Most courts have adopted the narrow approach because the relatively short statutory section creating the Dodd-Frank Claim does not include its own anti-arbitration provision within its text.^[95] These courts pointed out that in adding the anti-arbitration provision to Sarbanes-Oxley and other existing causes of action, Congress demonstrated that it knew how to provide for forum choice had it wanted to do so.^[96] As the Supreme Court has explained, "when Congress amends one statutory provision but not another, it is presumed to have acted intentionally.”^[97] By not including an anti-arbitration clause in the text of the Dodd-Frank Claim, Congress seemingly left undisturbed the federal policy strongly favoring arbitration.^[98] Although a Congressional choice to allow employers to compel Dodd-Frank Claims into arbitration while exempting many other whistleblower claims from arbitration might appear mystifying, the Third Circuit speculated that the omission of an additional anti-arbitration provision for Dodd-Frank might reflect some legislative compromise.^[99]

2. The Minority View Grants Access to Public Courts

Not all courts have construed the Sarbanes-Oxley anti-arbitration provision narrowly.^[100] In a decision from the District Court of Connecticut, which has been appealed to the Second Circuit, Chief Judge Hall focused on what it means for a cause of action to “arise under” a particular statutory section.^[101] For guidance construing the language, the court turned to Jones v. R.R. Donnelley & Sons Co., in which the Supreme Court found that a claim arises under any statutory provision that “provides a necessary element of the plaintiff's claim for relief.”^[102] Because Dodd-Frank’s legal Lohengrin protects whistleblowers making disclosures protected under Sarbanes-Oxley, those whistleblowers’ claims may also arise under Sarbanes-Oxley. If Dodd-Frank Claims arise under Sarbanes-Oxley, they should also be protected by its anti-arbitration provision.^[103]

Although it is a close issue, this Article argues that this broader interpretation remains sufficiently faithful to the statute’s internally inconsistent text and better serves the statute’s objectives. If a claim is made possible by a particular statute, it may be fairly described as “arising under” that statute even if it also arises under a different statute.^[104] Here, a whistleblower’s Dodd-Frank Claim may be made possible by, and thus arise under, the Sarbanes-Oxley section containing the anti-arbitration provision.

This reading is not without consequences. Granting Sarbanes-Oxley’s whistleblowers the right to sue under Dodd-Frank assures that Sarbanes-Oxley’s own whistleblower provision will likely see diminished use. Unlike Dodd-Frank, Sarbanes-Oxley requires whistleblower claimants to first exhaust their administrative remedies by filing an administrative complaint with the Secretary of Labor.^[105] In addition, it  provides only back pay with interest while Dodd-Frank provides for twice “the amount of back pay otherwise owed to the individual, with interest.”^[106] Given the benefits of increased protections and remedies for whistleblowers, this Article argues a potential shift toward increased use of the Dodd-Frank Claim would be a positive one.

Conclusion

This Article seeks to draw attention to a new Dodd-Frank controversy and the impact it may have on efforts to use whistleblower statutes to improve corporate governance and reform corporate culture in financial institutions. The content of this culture matters.^[107]

A focus on culture should be balanced against strengthening disclosure requirements. Indeed, the legal literature describes how increased disclosure advances efficiency and governance.^[108] But even though disclosure requirements are helpful in promoting transparency, disclosure requirements may not measure up to substantial regulation that alters negative market incentives or undesired economic incentives.^[109] Therefore, although mandating disclosure is a key component of regulating financial markets, relying on it alone as a holistic panacea would be a mistake. Given the importance of business culture in our modern society, and the consequences that such culture and behavioral norms have, it is extremely important to nudge individuals as well as businesses to promote increased norms of accountability and transparency. This is also the message that regulators have been delivering in the years following the financial crisis.^[110] Limiting arbitration and enabling whistleblowers to pursue their claims will help promote Dodd-Frank’s goals and improve corporate culture.

* Assistant Professor of Law, Baruch College Zicklin School of Business. S.J.D., University of Pennsylvania; L.L.M., Columbia Law School; B.A. & L.L.B., Haifa University.

** Assistant Professor of Law, Barry University Dwayne O. Andreas School of Law. J.D., Columbia Law School; B.A., University of South Carolina. The authors thank Diane Nygaard, Jennifer M. Pacella, Cathy Hwang, Michael T. Morely, Anjali Sareen, and participants at the National Business Law Scholar’s Conference at the University of Chicago Law School.