A federal circuit court decision issued last week recognizes important limitations on a relator’s ability to bring multiple lawsuits against the same contractor or alleging related fraud. The U.S. Court of Appeals for the District of Columbia Circuit held that allowing multiple suits by the same relator would violate the intent behind the “first-to-file” rule: preventing duplicative claims.
The relator, telecommunications consultant Stephen M. Shea, brought an initial lawsuit in 2007 claiming that Verizon had overbilled the GSA on two government contracts by including federal, state and local taxes in its bills. After the federal government intervened in the suit, Verizon paid $93.5 million to settle these claims. Shea’s share of the recovery was $19 million. Continue Reading
OSHA recently released the interim final text of regulations implementing the whistleblower protection provision (Section 1057) in Dodd-Frank. The interim final regulations establish the timing and processes for handling Dodd-Frank whistleblower complaints, including the procedures for filing a complaint with OSHA, OSHA’s investigation of the complaint, issuance of a decision and order, and appeals. OSHA is accepting comments on the interim final regulations until June 2, 2014. Continue Reading
As reported by The Washington Post, on April 4, 2014, the IRS issued its “Fiscal Year 2013 Report to the Congress on the Use of Section 7623” revealing that it paid whistleblowers $53 million in 2013. The agency said that it paid out 122 awards last year, making the average payout a whopping $435,000. Continue Reading
The SEC Office of the Whistleblower recently announced that the first-ever whistleblower award under the Dodd-Frank Whistleblower Program will be increased by $150,000 based on additional assets the SEC collected from one the defendants in the case. Continue Reading
In a recent VIDEO INTERVIEW, Darla Stuckey of the Society of Corporate Secretaries & Governance Professionals met with Steven J. Pearlman, co-head of Proskauer’s Whistleblower & Retaliation Group, to discuss the implications of the U.S. Supreme Court’s decision to extend whistleblower protection under the SOX whistleblower provision employees of a publicly traded company’s contractors and subcontractors. The case is Lawson v. FMR LLC, 134 S. Ct. 1158 (2014). In this interview, Pearlman identifies significant practical implications that are of particular interest to employment counsel, and compliance and HR professionals, and provides suggestions for public and private employers alike.
According to a news release from OSHA, OSHA recently ordered DISH Network (the “Company”) to pay a former employee over $257,000 in back wages and compensatory damages, plus reasonable attorneys’ fees, and to expunge his employment record after it determined that the Company violated Section 806 of SOX. Continue Reading
On April 30, at 12:00 – 1:30 Central, Proskauer will participate in a webinar through BNA with leaders from the SEC, CTFC and OSHA whistleblower programs and a plaintiffs’-side whistleblower attorney. The webinar will focus on cutting-edge developments in the Sarbanes-Oxley and Dodd-Frank whistleblower arenas. The program, which will provide a range of competing perspectives, comes at an important point in time, as employee whistleblower retaliation claims under a spectrum of laws are on the rise and whistleblowers now have a significant financial incentive to lodge reports through the SEC and CFTC bounty programs.
Sean X. McKessy – Chief of the SEC Office of the Whistleblower
Christopher Ehrman - Director of the Whistleblower Office, CFTC
Anthony Rosa - U.S. Department of Labor, Occupational Safety & Health Administration (Acting Deputy Director for Whistleblower Protection Programs)
Jason Zuckerman – Zuckerman Law (Principal)
To register, click here, and please contact your Proskauer attorney for information regarding available discounts for this BNA webinar.
The U.S. District Court for the District of New Jersey recently held that the Dodd-Frank Act does not operate retroactively to bar pre-dispute arbitration agreements, and thus required a plaintiff to arbitrate his Dodd-Frank whistleblower retaliation claim. Boris Khazin v. TD Ameritrade Holding, No. 13-cv-4149 (D.N.J. March 11, 2014). Continue Reading
As we previously discussed, courts have struggled with determining the scope of the protections in Dodd-Frank’s anti-retaliation provisions. On the one hand, Dodd-Frank defines a “whistleblower” as any individual, or group of individuals, “who provide . . . information relating to a violation of the securities laws to the [SEC], in a manner established by . . . the [SEC].” But, a few subdivisions later, Dodd-Frank prohibits retaliation against a whistleblower “because of any lawful act done by the whistleblower . . . in making disclosures that are required or protected under the Sarbanes-Oxley Act of 2002 . . . , [the Securities Exchange Act of 1934], section 1513 (e) of title 18, and any other law, rule, or regulation subject to the jurisdiction of the Commission.” Recently, in connection with Liu v. Siemens A.G., which is pending before the Second Circuit, the SEC filed an amicus brief, arguing that Dodd-Frank’s whistleblower provision “protects any employee who engages in any of the whistleblowing activities specified in [15 U.S.C. § 78u-6(h)(1)(A)], irrespective of whether the employee separately reports the information to the [SEC].” If the SEC so persuades the Second Circuit, we could see a split with the Fifth Circuit’s recent first impression ruling that Dodd-Frank’s anti-retaliation provision only protects whistleblowers who report to the SEC. Continue Reading
On March 6, 2014, the United States District Court for the District of Columbia ruled that Kellogg Brown & Root Services, Inc. (“KBR”) must produce to a qui tam relator 89 documents relating to internal investigations conducted by the Company. The court held that neither the attorney-client privilege nor the attorney work-product doctrine barred production or disclosure of the documents. United States ex rel. Barko v. Halliburton Co. et al., Case No. 05-01276 (D.D.C. Mar. 6, 2014). The decision could have widespread implications for companies that conduct internal investigations of whistleblower complaints. Continue Reading