Lee Michael Pederson v. U.S. Securities and Exchange Commission

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 24-2330
___________________________
Lee Michael Pederson
Petitioner
v.
U.S. Securities and Exchange Commission
Respondent
___________________________
No. 24-2526
___________________________
John Amster; Robert Heath
Petitioners
v.
U.S. Securities and Exchange Commission
Respondent
____________
Petition for Review of an Order of the
Securities & Exchange Commission
____________
Submitted: May 14, 2025
Filed: August 22, 2025
____________

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Before COLLOTON, Chief Judge, SMITH and SHEPHERD, Circuit Judges.
____________
SMITH, Circuit Judge.
Lee Michael Pederson, John Amster, and Robert Heath (collectively,
“Petitioners”) petition for review of a final order of the Securities and Exchange
Commission (Commission) denying their applications for whistleblower awards in
connection with the Commission’s successful action enforcing the security laws in
SEC v. Honig, No. 18-cv-08175 (S.D.N.Y.). We deny the petitions for review and
Pederson’s pending motion to compel.
I. Background
On September 7, 2018, the Commission filed a civil enforcement action
against several defendants alleging that they perpetrated “highly-profitable ‘pump-
and-dump’ schemes by artificially inflating the stock price” of their companies. See
SEC v. Honig, No. 18-cv-08175 (S.D.N.Y. Sept. 7, 2018). The Commission alleged
that Barry Honig led the scheme, which involved other defendants including Michael
Brauser, Mark Groussman, and Phillip Frost. It alleged that Honig and his associates
would acquire “large quantities of the issuer’s stock at steep discounts” and then
“engage[] in illegal promotional activity and manipulative trading to artificially
boost each issuer’s stock price and to give the stock the appearance of active trading
volume.” Pederson’s Addendum at 4. “Honig and his associates then dumped their
shares into the inflated market, reaping millions of dollars at the expense of
unsuspecting investors.” Id. The Commission eventually obtained final judgments
against the defendants and recovered over $11 million in sanctions.
The Dodd-Frank Wall Street Reform and Consumer Protection Act (Act) says
that the Commission “shall pay an award or awards to [one] or more whistleblowers
who voluntarily provided original information to the Commission that led to the
successful enforcement of the covered judicial or administrative action.” 15 U.S.C.
§ 78u-6(b)(1). Thus, on March 29, 2019, the Commission’s Office of the

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Whistleblower (OWB) posted a Notice of Covered Action that “invit[ed] claimants
to submit whistleblower award applications within 90 days.” Pederson’s Addendum
at 4. Five claimants submitted timely applications. The Commission’s Claims
Review Staff issued a preliminary determination that awarded 30 percent of the
monetary sanctions to one claimant, Daniel Fisher, and denied all other applications.
Fisher was a co-founder of Biozone Pharmaceuticals, Inc.—a company at the center
of the Commission’s investigation. When Frost took over Biozone, Fisher “then
became an Executive Vice President and Director.” Id. at 14. Frost forced Fisher out
of Biozone in 2012. Fisher submitted two whistleblower tips to the Commission in
2011 and 2012, attended a meeting with enforcement staff responsible for the
investigation in October 2015, and responded to a subpoena from the Commission
following that meeting.
Petitioners challenged the preliminary determination. See 17 C.F.R.
§ 240.21F-10(e). Upon review, the Commission entered a final order affirming the
preliminary determination. It agreed that Fisher should receive the 30 percent award
because he “provided new, helpful information that substantially advanced the
investigation” in the October 2015 meeting and “provided useful additional evidence
to the staff” in response to the subpoena. Pederson’s Addendum at 6. In the meeting,
Fisher “described various meetings he[] participated in with certain [d]efendants and
other individuals, described the deal in which [Biozone] was created, and the events
leading up to the promotion and market manipulation of [Biozone] stock, as well as
the pump-and-dump that occurred with [Biozone].” Id. The Commission also
affirmed the decision to deny all other applications. This appeal concerns two of the
denied applications—Pederson’s application and Amster and Heath’s joint
application.
A. Pederson
Pederson is a patent attorney who “served as outside patent counsel for
Biozone for over a decade, until 2012.” Pederson’s Br. at 5. Pederson submitted his
first whistleblower tip to the Commission in 2013. His tip described a pump-and-
dump scheme involving Frost and Biozone. In this tip, Pederson discussed a lawsuit

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that Fisher filed against Biozone, Frost, and other eventual defendants, in which
Fisher described the pump-and-dump scheme. Notably, Fisher settled this case in
2013. That settlement agreement included a non-disparagement clause, and pursuant
to that agreement, “Fisher was supposed to withdraw grievances that he filed with
the [Commission] and FBI concerning the defendants.” Fisher v. Biozone Pharms.
Inc., No. 12-cv-03716, 2017 WL 1097198, at *3 (N.D. Cal. Mar. 23, 2017)
(unpublished). In 2017, a federal district court found that Fisher violated that 2013
agreement and that he had not withdrawn his grievances. Id. The court “order[ed
Fisher] to withdraw [those] grievances.” Id. at *8.
In Pederson’s initial tip, he explained that he was “not completely at liberty to
disclose or discuss everything [he knew] about this situation.” Pederson’s App. at
53. Thus, he acknowledged that his tip included “very little independent knowledge”
and was instead “comprise[d of] primarily independent analysis . . . supported by
publicly available information.” Id. Over the next several years, Pederson
“submitted several more [tips] regarding Honig, Frost, and Brauser, as well as
sending dozens of emails to [Commission] staff,” in which he “repeatedly alleged
that Frost [was] the leader of a ‘white collar gang’ that specialize[d] in market
manipulations.” Id. at 21.
In June 2014, Pederson contacted Fisher. Pederson says that “the two [then]
commenced their cooperation in disclosing fraudulent activities by the Frost Group.”
Pederson’s Br. at 7. But according to Fisher, the two merely “commiserated with
each other.” Commission’s App. at 40. Fisher said that Pederson had “virtually no
information helpful to [him]” because Pederson “only provided [him with] publicly
available information, nothing else.” Id. at 40–41. But Fisher did share “with
[Pederson] information that would be helpful.” Id. at 40.
Pederson also contacted other entities with information about the scheme. For
example, in November 2014, Pederson emailed an attorney at the U.S. Attorney’s
Office for the Northern District of California (NDCA) with a copy of another
complaint that Fisher filed against Biozone (the Garcia Property Litigation), which

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“concern[ed] a drug manufacturing facility leased to Biozone.” Pederson’s Br. at 8.
In the email, Pederson referred to himself as Fisher’s attorney. He also
acknowledged that his email contained “no new factual information . . . that ha[d]
not previously been provided to law enforcement.” Pederson’s App. at 117.
In October 2015, Commission enforcement attorney Katherine Bromberg
emailed Fisher and invited him to an in-person meeting. Fisher accepted the
invitation and added Pederson to the email chain. In his response, Fisher said, “My
attorney, Lee Pederson, is available on Thursday via phone. . . . We have a lot of
information to [provide] the [Commission].” Id. at 155. Fisher told Bromberg that
Pederson would “likely be willing to provide the [Commission] important
information” because he was a “potential plaintiff” against Biozone and asked that
the Commission “speak with . . . Mr. Pederson on Wednesday.” Id. Ultimately,
Fisher attended the meeting alone. After that meeting, Pederson on several occasions
sent Bromberg email copies of Fisher’s litigation documents, once at Bromberg’s
request.
In November 2015, Fisher and Pederson discussed splitting a potential
whistleblower award. Pederson emailed Fisher: “As we discussed and agreed last
evening, if the [Commission] obtains disgorgement penalties from the Frost gang[,]
. . . we will work together to apply for one or more whistleblower awards, and we
will split the proceeds of any such award(s) equally.” Id. at 159. Pederson requested
that Fisher “respond with [his] concurrence.” Id. Fisher replied that “[t]he agreement
[was] acceptable” with two additional provisions. Id. Pederson then emailed the
same agreement with Fisher’s requested additions and asked Fisher to “confirm.” Id.
Fisher did not confirm.
In December 2015, Fisher received a subpoena from the Commission. Fisher
forwarded the email with the subpoena to Pederson “as [his] attorney and co-
beneficiary, if there is a[] Whistle Blower’s Reward [sic].” Id. at 161. But Fisher’s
actual legal counsel responded to the subpoena and “produc[ed] documents in

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response to the subpoena [only] on behalf of Fisher.” Id. at 41. Pederson did not
participate in the subpoena.
Pederson and Fisher’s relationship soured around 2016 when Pederson “sent
[Fisher] an invoice for legal services even though [Fisher] had no engagement
agreement.” Commission’s App. at 46. Pederson later sued Fisher for equitable
remedies, and in that complaint, Pederson acknowledged that “Pederson and Fisher
worked together” to “seek redress for the harms caused to them by Frost” but that
“[t]he details of the agreement between [them] were never finalized.” Pederson v.
Frost, No. 19-cv-01777, R. Doc. 1, ¶ 6 (D. Minn. July 8, 2019). The court “dismissed
the complaint due to lack of personal jurisdiction.” Resp’t’s Br. at 19. Fisher also
sued Pederson “seeking a declaratory judgment to establish that [Fisher] had no
monetary liability to Pederson regarding Pederson’s role in the Garcia Property
[Litigation],” and Fisher obtained a default judgment against Pederson. Pederson’s
Br. at 14.
When the Commission posted the Notice of Covered Action, Pederson filed a
timely application and “sought an award based on his independent tips submitted in
2013 and 2014, as well as his joint efforts with Fisher.” Id. The Claims Review Staff
preliminarily denied his application because his “information was not used in, nor
had any impact on, the charges brought by the Commission.” Pederson’s App. at 8.
The staff acknowledged that “[e]nforcement staff responsible for the Covered Action
received information from [Pederson]” but said that his “information was duplicative
of information [it] . . . had obtained prior.” Id. The staff said his “information was
general in nature,” “was based solely on publicly available information
[e]nforcement staff already had in its possession,” and “did not include any useful
insight separate and apart from what was reflected in the publicly available
materials.” Id. The staff also rejected Pederson’s argument that he “submitted
information . . . jointly with [Fisher].” Id. at 8 n.1. The staff noted that Fisher
submitted his tips individually not jointly. Fisher attended the October 2015 meeting
alone, “during which [he] provided valuable new information . . . . based on [his]
own personal independent knowledge and experiences.” Id.

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Pederson challenged the preliminary determination. In response, the
Commission provided him with the record that staff used to make the determination,
including a sworn declaration from Bromberg. In it, Bromberg said that Pederson’s
initial tip was “not referred to [e]nforcement staff for further review or action . . . .
[b]ecause of the general nature of the complaint and its apparent reliance on publicly
available materials.” Id. at 21. Bromberg acknowledged that Pederson reached out
to Commission staff “on an almost exclusively one-sided basis” but said that “staff
declined to schedule follow up communication with him because [it] concluded that
he did not possess” helpful information. Id. at 22. She also said that she understood
that Pederson emailed her a copy of Fisher’s complaint after the October 2015
meeting at Fisher’s request and that Pederson had that complaint “because Fisher
had provided those materials to Pederson in connection with Pederson’s lawsuit
against Frost.” Id. at 22 n.1.
“Following [Pederson’s] request for reconsideration, [Commission] staff . . .
solicited additional information and documents from [Fisher] and [Pederson] to
clarify their relationship.” Id. at 35. The Commission deposed both Fisher and
Pederson. Fisher testified that he did not work with Pederson to prepare Fisher’s own
tips and that the pair had “no written agreement” to share information. Commission’s
App. at 40. Fisher also testified that Pederson “was not [his] attorney specifically”
and that they “had no engagement agreement.” Id. at 42. Pederson testified that he
did not help with Fisher’s 2011 and 2012 tips. Pederson said that Fisher referred to
him as Fisher’s attorney because Fisher was “imprecise with language a lot of times”
and “was used to doing it.” Id. at 71–72. Pederson also acknowledged that he had no
finalized agreement to split an award: He testified that he “d[id not] remember
specifically” if Fisher orally agreed to the email and said that he “ha[d] no
documentation” if Fisher did so. Id. at 88.
The Commission then entered a final order denying Pederson’s application.
In doing so, it credited a sworn supplemental declaration from Bromberg. First, the
Commission agreed with the Preliminary Determination that Pederson and Fisher

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were not joint whistleblowers. “[T]he touchstone for determining whether two
individuals acted as joint whistleblowers turns on how the individuals presented
themselves when providing the information to the Commission.” Pederson’s App. at
36. The Commission acknowledged that the emails between Fisher and Pederson,
“if viewed in isolation, . . . could support [Pederson’s] view.” Id. at 37. But it said
“that the record evidence taken as a whole weigh[ed] in favor of finding that [Fisher]
and [Pederson] provided information individually.” Id. It noted that the emails Fisher
and Pederson exchanged never resulted in an “executed agreement”; that Fisher
attended the October 2015 meeting and responded to the subsequent subpoena alone;
and that Fisher and Pederson also submitted individual tips years apart. Id. “At no
point during the investigation was [e]nforcement staff informed by [Fisher] or
[Pederson], or by [Fisher’s] counsel, that they were acting as joint whistleblowers or
providing the information jointly.” Id. at 36. Second, the Commission agreed that
Pederson “did not individually provide original information that led to the success
of the Covered Action” because his “information was not helpful.” Id. at 37.
Pederson then petitioned this court for review of that order.
B. Amster and Heath
Amster and Heath were both executive officers at publicly traded companies.
Both claim to be patent experts who “detected and reported the pump-and-dump
schemes” in 2013. Amster and Heath’s Br. at 4. In October 2013, Amster and Heath
attended a meeting at the Commission’s Washington D.C. office with the Assistant
Director of Enforcement and several enforcement attorneys. In this meeting, they
“presented five case studies of recent suspect pump-and-dump schemes,” some of
which involved Honig. Id. at 5. In November 2013, the pair attended another meeting
at the D.C. office and “identified the top shareholders involved in the suspect market
activity,” which included several defendants in the Honig action. Id. at 6.
Amster and Heath filed a joint whistleblower award application. The Claims
Review Staff preliminarily denied their application because they “did not provide
original information that led to a successful enforcement action.” Amster and
Heath’s App. at 252. The Claims Review Staff found that the “staff responsible for

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the Covered Action did not receive [Amster] and [Heath’s] information and never
had any communications with [them].” Id. at 253. Because the “staff did not rely
upon [their] allegations when conducting the investigation,” the staff found that their
“information was not used in, nor had any impact on, the charges brought.” Id.
Amster and Heath challenged the preliminary determination. The
Commission provided them with Bromberg’s sworn declaration that said that “[t]he
Honig [i]nvestigation was opened by [New York] [e]nforcement staff in February
2015 based on a referral . . . from the Division of Examinations [Exams].” Id. at 257.
She confirmed that staff responsible for the enforcement action did not receive or
review Amster and Heath’s information until they filed their award application.
Amster and Heath, in their request for reconsideration, argued that “even if
[Commission] staff members do not ‘use’ a whistleblower’s original information
within a particular investigation, [the regulations] may nevertheless entitle that
whistleblower to an award if the information leads to a successful enforcement
action in other ways.” Id. at 286 (alteration and internal quotation marks omitted).
Although Bromberg’s declaration said that “the decision to open this investigation
was based in part on past investigations of microcap fraud,” they averred that “[i]f
[their] disclosures had led to one such investigation, then . . . their original
information did help cause the [Commission] to open this investigation.” Id. at 287.
The Commission denied their application and entered a final order. The denial
relied on and credited Bromberg’s sworn supplemental declaration that said the
“investigation was opened in February 2015 based on an Exams referral, and not
because of [Amster and Heath’s] information.” Id. at 382. The Commission further
clarified that the “Exams referral [was not] based on [their] information” and
rejected their argument that “the investigation was opened based in part on a past
microcap investigation that they may have helped open.” Id. Amster and Heath
petitioned the Ninth Circuit for review of that order. That petition was then
consolidated with Pederson’s petition in this court.

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II. Discussion
Whistleblower award determinations are “in the discretion of the
Commission,” and we “review the determination made by the Commission in
accordance with section 706 of [the Administrative Procedure Act].” 15 U.S.C.
§ 78u-6(f). Accordingly, we “will ‘hold unlawful and set aside agency action,
findings, and conclusions’ that are ‘arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law’ or ‘unsupported by substantial evidence.’”
Meisel v. SEC, 97 F.4th 755, 760–61 (11th Cir. 2024) (quoting 5 U.S.C. § 706(2)(A),
(E)). “Arbitrary and capricious review, at its core, measures if an agency action was
irrational.” Mandan, Hidatsa & Arikara Nation v. U.S. Dep’t of the Interior, 95 F.4th
573, 579 (8th Cir. 2024). We review the Commission’s legal conclusions de novo
and its factual findings for substantial evidence.1 Meisel, 97 F.4th at 761.
“[W]hatever the meaning of substantial in other contexts, the threshold for such
evidentiary sufficiency is not high. Substantial evidence . . . is more than a mere
scintilla. It means—and means only—such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Biestek v. Berryhill, 587 U.S. 97,
103 (2019) (internal quotation marks and citations omitted). “Under this deferential
standard of review, we may not reverse merely because substantial evidence may
also support an opposite conclusion. Yet in order to affirm, the record evidence must
do more than create a suspicion of the existence of the fact to be established.” Bussen
Quarries, Inc. v. Acosta, 895 F.3d 1039, 1045 (8th Cir. 2018) (cleaned up).
A. Pederson
Pederson asks us to vacate the Commission’s final order and grant him the 30
percent award because the Commission (1) erred in finding that he was not a joint
whistleblower with Fisher; (2) erred in denying his application based on his initial
1 In his reply brief, Pederson argues that a deferential standard of review is not
appropriate to review the Commission’s whistleblower determinations. But
Pederson acknowledged these standards of review in his opening brief and did not
argue that deference was inappropriate. Because Pederson did not raise his challenge
to the standards of review in his opening brief, his argument is waived. See FTC v.
Neiswonger, 580 F.3d 769, 775 (8th Cir. 2009).

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individual tips in 2013 and 2014; (3) violated his Fifth Amendment due process
rights; and (4) erred in granting Fisher the 30 percent award.
1. Joint Whistleblower Status
The Commission rejected Pederson’s argument that he should receive a
whistleblower award because he provided information jointly with award recipient
Fisher. The Commission said that “the touchstone for determining whether two
individual acted as joint whistleblowers turns on how the individuals presented
themselves when providing the information.” Pederson’s App. at 36. It found that
Pederson and Fisher “did not present themselves to the Commission staff as joint
whistleblowers.” Id. The Commission noted that Fisher attended the October 2015
meeting alone, Fisher responded to the subpoena alone, and Fisher and Pederson
never informed staff that they were acting jointly. In making this determination, the
Commission credited Bromberg’s supplemental declaration that said enforcement
staff did not think that Fisher and Pederson were submitting information as a team.
On appeal, Pederson agrees that we “should decide based on the evidence of
how Fisher and Pederson presented themselves at the time the information was
provided.” Pederson’s Br. at 26. But he contends that he and Fisher presented
themselves as joint whistleblowers and argues that the Commission should not have
relied on Bromberg’s declaration. The Commission argues that substantial evidence
supports its determination.
The Act says that the Commission “shall pay an award or awards to [one] or
more whistleblowers who” meet the criteria. 15 U.S.C. § 78u-6(b)(1). It defines
“whistleblower” as “any individual who provides, or [two] or more individuals
acting jointly who provide, information relating to a violation of the securities laws
to the Commission.” Id. § 78u-6(a)(6). “Although the statute does not define
‘jointly,’ the ordinary meaning of the term is ‘in common; together.’” Johnston v.
SEC, 49 F.4th 569, 576 (D.C. Cir. 2022) (alteration omitted) (quoting Jointly,
American Heritage Dictionary (2022)). “[T]he question [is] whether, as a matter of
fact, [Pederson and Fisher] acted jointly when they provided information to the

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[Commission].” Id. at 578. Pederson “raises [only] factual dispute[s]” with the
Commission’s determination that he and Fisher did not present themselves as joint
whistleblowers, so “we review the Commission’s findings of fact to determine only
whether they are supported by substantial evidence.” Id.
The Commission’s determination that Fisher and Pederson were not acting
jointly when providing information is supported by substantial evidence. Fisher
attended the October 2015 meeting alone, and the Commission was clear that the
helpful information that Fisher provided pertained to his own personal experiences
as an executive at Biozone. Further, the Commission only subpoenaed Fisher, and
only Fisher responded with helpful information. Fisher’s counsel, in responding to
the subpoena, said “that he represented Fisher and was producing documents in
response to the subpoena on behalf of Fisher.” Pederson’s App. at 41. In Johnston,
the D.C. Circuit found that the Commission’s determination that two claimants were
joint whistleblowers was supported by substantial evidence. 49 F.4th at 578. There,
the Commission noted that the claimants attended a meeting together in which they
provided information, the claimants were represented before the Commission jointly
by one attorney, and one claimant’s award application said that the information was
discovered by a team. Id.
This case contrasts starkly with Johnston. Pederson and Fisher provided no
information jointly. Fisher and his attorney provided all helpful information on
Fisher’s behalf, not Pederson’s. The only information that Pederson provided in
connection with the October 2015 meeting was copies of Fisher’s litigation
documents. But Bromberg said that she understood that Pederson received those
documents from Fisher—which is consistent with the repeated, incorrect references
to Pederson as Fisher’s attorney. Regardless, the information that Pederson provided
in his emails was not helpful to enforcement staff. Pederson acknowledged that “the
documents Pederson provided to the [Commission] in relation to Fisher’s meeting
were initially submitted as Pederson’s own tip in 2014.” Pederson’s Br. at 32. As
explained infra Section II.A.2, the information in Pederson’s 2014 tip was not
helpful because it was publicly available. Further, Pederson’s argument that his

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emails were the only written information provided is belied by the record. The
Commission’s final order makes clear that Fisher orally provided helpful
information at the October 2015 meeting and then provided helpful documents in
response to the subpoena. Pederson was not involved in the transmission of helpful
information at either point.
Pederson contends that the Commission erred because of the email evidence
supporting his argument. But on substantial evidence review, “we may not reverse
merely because substantial evidence may also support an opposite conclusion.”
Bussen Quarries, Inc., 895 F.3d at 1045 (cleaned up). First, the Commission
addressed Pederson and Fisher’s emails discussing an agreement to split an award.
But it found that the record evidence weighed against joint whistleblower status
because the agreement was not finalized and Fisher provided the helpful information
on his own. Second, Fisher told Bromberg before the October 2015 meeting, “We
have a lot of information to [provide] the [Commission].” Pederson’s App. at 155.
But the rest of the email supports the Commission’s conclusion: Fisher encouraged
Bromberg to talk with Pederson because Pederson would “likely be willing to
provide the [Commission] important information.” Id. Thus, the use of “we” did not
necessarily mean that they would present the information together but rather
reflected Fisher’s understanding that both had information to give. And again, Fisher
gave the Commission the helpful information on his own. Regardless, “we may not
substitute our judgment of the facts for the Commission’s.” Meisel, 97 F.4th at 762.
There is substantial evidence in this record to support the Commission’s
determination that Fisher provided his information individually, not jointly with
Pederson.
2. Pederson’s Individual Tips
The Commission also rejected Pederson’s application based on his individual
tips in 2013 and 2014. It found that Pederson “did not individually provide original
information that led to the success of the Covered Action” because his information
was not “new, useful,” or “helpful.” Pederson’s App. at 37. Bromberg stated in her

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initial declaration that Pederson’s “information and analysis were not helpful . . .
because it was already known to staff.” Id. at 22.
On appeal, Pederson contends that the Commission erred because the
information that he provided was eventually used in the enforcement action. His
argument misses the point. Pederson and the Commission acknowledge that
Pederson’s initial tips identified the existence of a pump-and-dump scheme and
some of the individuals involved. But Pederson’s tips were, nonetheless, not helpful
because the Commission already had that information.
The record supports the Commission’s conclusion. It received tips from Fisher
and others about this scheme prior to Pederson’s first tip. Further, Pederson
acknowledged that his tips included “very little independent knowledge . . . not
derived from publicly available sources” and “comprise[d] [of] primarily
independent analysis . . . supported by publicly available information.” Pederson’s
App. at 53. For example, Pederson’s first tip discussed Fisher’s public litigation
against the fraudsters. Pederson argues that his independent analysis should make
him eligible for an award. Bromberg, however, said in her initial declaration that
“[e]nforcement staff performed its own analysis separate from any information
provided by Pederson.” Id. at 22. Thus, the Commission did not act based on
Pederson’s submission. Bromberg’s “declarations—which were both credited by
and relied upon by the Commission—provide more than a scintilla of evidence that
the Commission did not use the information provided by [Pederson] in the Covered
Action.” See Meisel, 97 F.4th at 762 (internal quotation marks omitted) (finding
substantial evidence to support the determination that Meisel’s information did not
contribute to the enforcement action because a Commission attorney said in initial
and supplemental declarations that the staff already knew the information that he
provided before Meisel submitted his tip).
Pederson also argues that he should be eligible for an award because he
provided information to the NDCA. The whistleblower regulations say that “the
Commission will consider [a claimant] to be an original source of the same

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information that [it] obtain[s] from another source if the information satisfies the
definition of original information and the other source obtained the information from
[the claimant] or [his] representative.” 17 C.F.R. § 240.21F-4(b)(5). Pederson
contends that he is thus eligible for an award because he gave information to the
NDCA and because Bromberg acknowledged that enforcement staff “connected
with” and “exchange[d] . . . information” with the NDCA. Pederson’s App. at 17.
The information that Pederson shared with the NDCA does not entitle him to an
award. The rule requires that “the information satisf[y] the definition of original
information.” 17 C.F.R. § 240.21F-4(b)(5). In his email to the NDCA, Pederson
explicitly said that he provided “no new factual information in the complaint that
ha[d] not previously been provided to law enforcement authorities.” Pederson’s App.
at 117. Instead, he emailed NDCA because the “filing of the complaint may change
the dynamic of FrostZone in the civil litigation context and perhaps in other contexts
as well.” Id. We conclude that Pederson did not provide original information to the
NDCA.
3. Due Process
Pederson argues that the Commission violated his Fifth Amendment right to
due process. He avers that the Commission was biased against him because he
criticized it for not investigating his initial tips. He also argues that the Commission
should not have required him to testify twice about his relationship with Fisher if it
would nonetheless rely on Bromberg’s declaration.
The Fifth Amendment says that “[n]o person shall be . . . deprived of life,
liberty, or property, without due process of law.” U.S. Const. amend. V. “For
plaintiffs to establish unconstitutional deprivations of property under the Fifth
Amendment, they must show that they (1) have protected property interests at stake
and (2) were deprived of such property interests without due process of law.” In re
Morgan, 573 F.3d 615, 623 (8th Cir. 2009). “[I]f [Pederson] lacks a constitutionally
protected property interest in [his whistleblower award], he cannot establish a due
process violation.” Mulvenon v. Greenwood, 643 F.3d 653, 657 (8th Cir. 2011).

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Pederson argues that he has a protected property interest because “[t]hose who
invest years of effort and risk their careers to investigate violations or disclose
valuable information enter into a contract with the government in response to the
statutory offer outlines in Section 922 of the Dodd Frank Act.” Pederson’s Br. at 40–
41. Pederson provides one paragraph of argument on this point. He does not cite a
single case nor provide any standards for determining when a party has a
constitutionally protected property interest. He asserts no authority to support his
argument that all whistleblowers enter into a contract with the Commission. He only
broadly cites the Act. We therefore reject Pederson’s due process argument because
he failed to provide meaningful argument on this required element. See Cox v.
Mortg. Elec. Registration Sys., Inc., 685 F.3d 663, 674 (8th Cir. 2012) (finding an
argument was “waived” because the appellant “fail[ed] to provide a meaningful
explanation of the argument and citation to relevant authority in their opening
brief”).
4. Fisher’s Award
Pederson challenges Fisher’s award for the first time on appeal. He contends
that Fisher was not eligible for an award because, in his 2013 settlement with
Biozone and Honig, Fisher “agreed to withdraw his whistleblower complaints with
the [Commission] and FBI and refrain from making the same allegations against
Honig and others.” Pederson’s Br. at 49. Thus, Pederson argues that the Commission
erred in granting Fisher an award because it “must adhere to fundamental legal
principles” and show “respect for settlement agreements.” Id. at 51.
The Commission argues that Pederson forfeited this argument because he did
not raise the issue below. The Securities Exchange Act says that “[n]o objection to
an order or rule of the Commission, for which review is sought under this section,
may be considered by the court unless it was urged before the Commission or there
was reasonable ground for failure to do so.” 15 U.S.C. § 78y(c)(1). Pederson argues
that he “could not raise this issue earlier because he lacked information about
Fisher’s award-winning submission.” Pederson’s Reply Br. at 23. Thus, he argues
that he had a reasonable ground for failing to raise the issue below.

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We agree that Pederson forfeited this argument because he did not raise the
issue before the Commission. His argument that he could not raise the issue below
is contrary to the record. In his request for reconsideration, Pederson acknowledged
that the Commission granted Fisher’s application based on the “new valuable
information . . . offered to the [Commission] during Mr. Fisher’s [October 2015]
meeting.” Pederson’s App. at 188 (cleaned up). Pederson therefore did have
information about Fisher’s award-winning submission, and this basis did not change
between the preliminary determination and the final order. Further, in his request for
reconsideration, Pederson discussed Fisher’s settlement that led Fisher to
“[w]ithdr[a]w his complaints to the [Commission].” Id. at 186. Pederson therefore
had all the information that he needed to raise the issue below but did not. “Congress
has prohibited us from considering issues not raised before the [Commission].”
Springsteen-Abbott v. SEC, 989 F.3d 4, 7 (D.C. Cir. 2021). Pederson forfeited his
ability to challenge Fisher’s award on appeal.
5. Motion to Compel
Pederson also filed a motion to compel in this court, which we ordered would
be taken with the case. In his motion, Pederson argues that the Commission’s
administrative record failed to comply with both the Federal Rules of Appellate
Procedure and the securities regulations. We disagree and deny the motion.
In filing the administrative record, the Commission filed a certified list that
included “the documents and other materials . . . on which the Commission’s order
denied the whistleblower award claims.” A.R. 1. This certified list is authorized by
Federal Rule of Appellate Procedure 17, which allows the Commission to file “a
certified list adequately describing all documents, transcripts of testimony, exhibits,
and other material constituting the record.” Fed. R. App. P. 17(b)(1)(B). Contrary to
Pederson’s argument, the certified list included detailed descriptions of each
document. This list also satisfied the Commission’s regulations which say that “[t]he
record on appeal shall consist of the Final Order, any materials that were considered
by the Commission in issuing the Final Order, and any materials that were part of

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the claims process leading from the Notice of Covered Action to the Final Order.”
17 C.F.R. § 240.21F-13(b). Because the Commission provided all “documents and
other materials” that the Commission relied on in “den[ying] the whistleblower
claims,” A.R. 1, the Commission satisfied its regulatory obligation.
To the extent that Pederson argued in his motion to compel that he did not
have access to some of the documents listed, that argument is not supported by the
record. In opposition to Pederson’s motion to compel, the Commission filed an
exhibit showing that when Pederson told the Commission that he did not have access
to some documents in the record, the Commission emailed all such documents to
Pederson. The motion to compel is denied.
B. Amster and Heath
The Commission denied Amster and Heath’s joint whistleblower application
because they “did not provide information that caused the Covered Action
investigation to open.” Amster and Heath’s App. at 382. The Commission credited
Bromberg’s initial and supplemental declarations that said, “[S]taff responsible for
the Covered Action were not involved in [their] meetings with Home Office staff in
October or November 2013, and did not receive any of [their] information.” Id. Thus,
it found that Amster and Heath “did not submit information that led to the success
of the Covered Action.” Id. at 382–83 (internal quotation marks omitted).
On appeal, Amster and Heath argue that the Commission erred in denying
their application because (1) the whistleblower regulations create an objective
causation standard, so the actual use of the information is not required for the
information to lead to a successful enforcement action, and (2) even if actual use is
required, their information still led to the successful enforcement action.
1. Rule Interpretation
The Act says that the Commission “shall pay an award or awards to [one] or
more whistleblowers who voluntarily provided original information to the
Commission that led to the successful enforcement of the covered judicial or

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administrative action.” 15 U.S.C. § 78u-6(b)(1) (emphasis added). Congress granted
the Commission “the authority to issue such rules and regulations as may be
necessary or appropriate to implement the provisions” of the Act. Id. § 78u-6(j).
Pursuant to that authority, the Commission promulgated a rule to define what it
means for information to “lead[] to successful enforcement.” 17 C.F.R. § 240.21F-
4(c). That rule defined three circumstances in which “[t]he Commission will
consider that [a claimant] provided original information that led to the successful
enforcement.” Id.; see also Doe v. SEC, 28 F.4th 1306, 1313 (D.C. Cir. 2022) (per
curiam) (holding that the three causation “fact patterns” in 17 C.F.R. § 240.21F-4
are exhaustive, so whistleblower petitioners must meet one of them to show that their
information led to a successful enforcement action).
Amster and Heath argue that they are entitled to an award because they
attended two meetings at the Commission’s D.C. office in late 2013 in which they
“presented five case studies of recent suspect pump-and-dump schemes” and
identified people involved in these schemes, including Honig and other defendants
in the Honig action. Amster and Heath’s Br. at 5–6. Because Bromberg stated that
the investigation was opened in February 2015, almost two years after their
meetings, and because Amster and Heath reported the information to the
Commission, only the first causation fact pattern applies here.
Information provided prior to Commission action “leads to successful
enforcement” if the whistleblower
gave the Commission original information that was sufficiently
specific, credible, and timely to cause the staff to commence an
examination, open an investigation, reopen an investigation that the
Commission had closed, or to inquire concerning different conduct as
part of a current examination or investigation, and the Commission
brought a successful judicial or administrative action based in whole or
in part on conduct that was the subject of your original information . . . .

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17 C.F.R. § 240.21F-4(c)(1). Amster and Heath contend that the language
“sufficiently specific, credible, and timely to cause the staff to [act]” creates an
objective standard. Amster and Heath’s Br. at 18 (internal quotation marks omitted).
They therefore argue that they are entitled to an award because their information
“was sufficiently specific, credible, and timely such that the [Commission] should
have opened or expanded an investigation based on it.” Id. at 23 (internal quotation
marks omitted).
The Commission counters Amster and Heath’s argument by asserting that
they forfeited this argument because they failed to raise it before the Commission.
As explained supra, “[n]o objection to an order or rule of the Commission, for which
review is sought under this section, may be considered by the court unless it was
urged before the Commission or there was reasonable ground for failure to do so.”
15 U.S.C. § 78y(c)(1). Amster and Heath contend that they did raise this issue below.
But even if they did not, they urge us to nonetheless address their argument because
they had reasonable ground for their failure to do so or because the argument is
purely legal.
The Commission is correct that Amster and Heath failed to raise this issue
below and cannot show reasonable ground for their failure to do so. In their request
for reconsideration, Amster and Heath argued that “even if [Commission] staff
members do not ‘use’ a whistleblower’s original information within a particular
investigation, [the regulations] may nevertheless entitle that whistleblower to an
award if the information leads to a successful enforcement action in other ways.”
Amster and Heath’s App. at 286 (alteration and internal quotation marks omitted).
Amster and Heath argue that this is sufficient to find that they raised their objective-
standard argument below. But in their request, Amster and Heath did not argue that
their information could “lead to” successful enforcement under an objective
standard—they never used the word “objective” nor argued that their information
was “sufficiently specific, credible, and timely,” both arguments that they raise now.
Instead, they argued that their information could lead to the successful enforcement
in other ways because “the decision to open this investigation was based in part on

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past investigations of microcap fraud.” Id. at 287. “If [their] disclosures had led to
one such investigation, then . . . their original information did help cause the
[Commission] to open this investigation.” Id. This argument mirrors the argument
they make now in Part II.B.2 and demonstrates that they did not raise this issue
below. See Springsteen-Abbott, 989 F.3d at 8 (finding that a petitioner failed to raise
a due process argument below despite the petitioner’s argument that she made “many
pleas for constitutional adjudication” before the Commission because that was
“insufficient[:] the Petitioner must raise the substance of her argument below”
(internal quotation marks omitted)).
Amster and Heath argue that even if they did not raise the issue below,
forfeiture should not apply because the Commission “overhauled the record”
between the preliminary determination and the final order. Amster and Heath’s
Reply Br. at 6. They point to Barr v. SEC, 114 F.4th 441 (5th Cir. 2024), petition for
cert. filed (U.S. June 4, 2025) (No. 24-1233). There, the Fifth Circuit held that a
petitioner did not forfeit an argument not raised to the Commission. Id. at 448. The
Commission preliminarily denied the application because the petitioner’s
information “did not lead to the successful enforcement,” but in the final order, it
denied his application because the case was not a “covered judicial or administrative
action.” Id. (internal quotation marks omitted). The Fifth Circuit thus allowed the
petitioner to raise a new argument because “a miscarriage of justice would result if
[it] did not consider th[e] purely legal argument since Barr was unaware of the
[Commission]’s legal position and had no opportunity to challenge it in the agency
proceedings.” Id.
This case is not like Barr. Amster and Heath’s contention that their omission
should be excused because the Commission overhauled the record is not supported
by the record. The Claims Review Staff preliminarily denied their application
because enforcement staff did not use Amster and Heath’s information. In their
request for reconsideration, they argued that even if enforcement staff did not use
their information, they could still satisfy the causation standard because their
information could have been used in earlier investigations that eventually led to the

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enforcement action. In the final order, the Commission reiterated that the
enforcement action was initiated in February 2015 based on an Exams referral and
clarified that the Exams referral was also not initiated because of their information.
Now, Amster and Heath assert an interpretation argument to claim that even if staff
did not use their information, they could still satisfy the regulations. They could have
made that argument below and simply did not. Unlike Barr, in which the
Commission changed legal positions between the preliminary decision and final
order, it is Amster and Heath who now seek to change positions.
Amster and Heath contend that we should nonetheless consider the issue
because it is a purely legal one. See Robinson v. Norling, 25 F.4th 1061, 1063 (8th
Cir. 2022) (“[W]e excuse forfeiture in certain limited, well-defined circumstances
. . . . One is when the proper resolution is beyond any doubt, and the other is for
purely legal issues that do not require additional evidence or argument.” (cleaned
up)). Even if Amster and Heath are correct that forfeiture does not apply here, we
are not persuaded that the rule creates the objective standard that they argue applies.
The rule says that “[i]nformation . . . leads to successful enforcement” if the
whistleblower gives “the Commission original information that was sufficiently
specific, credible, and timely to cause the staff to [act].” 17 C.F.R. § 240.21F-
4(c)(1). Amster and Heath contend that the “sufficient[] . . . to cause” language
creates “an objective question, not a subjective one.” Amster and Heath’s Br. at 17
(alteration in original) (quoting 17 C.F.R. § 240.21F-4(c)(1)). For support, they point
to cases in which we applied objective tests and held that the evidence was sufficient
for a certain result. But these tests did not themselves include “sufficient to”
language and instead featured other hallmarks of an objective test, like a “reasonably
prudent person” standard. See Walker v. Barrett, 650 F.3d 1198, 1205 (8th Cir. 2011)
(finding that conduct “was sufficient to place a reasonably prudent person on notice
of a potentially actionable injury at the time the abuse occurred”).2
2See also United States v. Brown, 217 F.3d 605, 607 (8th Cir. 2000) (stating
that “a police officer’s intent [in the arrest] is irrelevant as long as there is sufficient
objective evidence establishing probable cause for the arrest” (internal quotation

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We are not persuaded that the “sufficiently specific, credible, and timely to
cause” language creates the argued-for objective test. See Standard, Black’s Law
Dictionary (12th ed. 2024) (defining an “objective standard” as one “based on
conduct and perceptions external to a particular person,” such as the “the reasonable-
person standard” from “tort law”). The Eleventh Circuit rejected this interpretation
in Granzoti v. SEC, No. 22-13332, 2023 WL 5193503, at *3 (11th Cir. Aug. 14,
2023) (unpublished per curiam). Our sister circuit found “no authority suggesting
that this regulation calls for an objective test.” Id. It emphasized that “[t]o cause”
means “[t]o bring about or effect.” Id. (second alteration in original) (quoting Cause,
Black’s Law Dictionary (11th ed. 2019)). “Naturally, then, something that is never
considered by the [Commission] could not have caused the [Commission] to
investigate. If the [Commission] didn’t consider the information, then the
information could not bring about or effect a result.” Id. It further found that the
objective “interpretation adds words to the text, equating the meaning of ‘to cause’
with ‘to have caused’ in the process.” Id.
The Eleventh Circuit’s logic is sound and persuasive. The language of the Act
itself requires that the whistleblower “provide[] original information . . . that led to
the successful enforcement.” 15 U.S.C. § 78u-6(b)(1). The Commission’s regulation
asks whether the information “was sufficiently specific, credible, and timely to cause
the staff to [act].” 17 C.F.R. § 240.21F-4(c)(1). We therefore agree that the
regulation requires that the Commission actually use the information for the
information to cause Commission action. “If the [Commission] didn’t consider the
information, then the information could not bring about or effect a result.” Granzoti,
2023 WL 5193503, at *3.
marks omitted)); United States v. Stokes, 62 F.4th 1104, 1107 (8th Cir. 2023)
(finding that the “facts were sufficient to provide [a police officer] with reasonable
suspicion to conduct a Terry stop”).

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2. Application of the Rule
Amster and Heath argue that even if actual use of their information is required,
the Commission still erred in denying their application. They contend that even if
enforcement staff did not use their information in the Honig investigation, their
information still led to the successful enforcement action because “if [their]
information contributed to any . . . previous microcap investigations, then they
helped launch the investigation that ultimately resulted in the [Commission]’s
successful enforcement action.” Amster and Heath’s Br. at 25–26. They argue that
“[a]ll the inferences here are that Amster and Heath’s information did help launch at
least one of those prior investigations.” Id. at 26. We review the Commission’s
determination that Amster and Heath’s information did not lead to the successful
enforcement action for substantial evidence. See Meisel, 97 F.4th at 761.
We conclude that there is substantial evidence supporting the Commission’s
determination that Amster and Heath’s information did not lead to the successful
enforcement action. In the final order, the Commission directly addressed and
rejected this argument. It said that the “investigation was opened in February 2015
based on an Exams referral, and not because of information provided by [Amster]
and [Heath]. Nor was the Exams referral based on [their] information.” Amster and
Heath’s App. at 382. It disagreed that Amster and Heath’s information could have
been used in past microcap investigations that somehow led to the Exams referral
and credited Bromberg’s supplemental declaration that said “the Honig Investigation
was opened based on an Exams referral, and not based on another past
investigation.” Id. at 373. The record supports this conclusion. Amster and Heath’s
presentation—given over a year after Fisher’s initial tips—identified several
potential pump-and-dump schemes that included, but was not limited to, several
defendants in the eventual enforcement action. But Bromberg said that “Exams staff
identified Honig and Brauser during the course of their examination on their own.”
Id. Bromberg’s sworn declarations—which the Commission credited—“amount to
substantial evidence supporting the Commission’s decision.” Doe v. SEC, 729 F.
App’x 1, *4 (D.C. Cir. 2018) (unpublished); see also Meisel, 97 F.4th at 762. We
therefore deny their petition.

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III. Conclusion
For the foregoing reasons, we deny both petitions for review and Pederson’s
motion to compel.
______________________________

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