For the first time in nearly 20 years, the Equal Employment Opportunity Commission has issued proposed enforcement guidance regarding retaliation claims. According to the EEOC, the revised guidance is necessary in light of several court decisions, including the Supreme Court’s decision in Univ. of Tex. SW Med. Ctr. v. Nassar, 133 S. Ct. 2517 (2013), holding that retaliation claims under Title VII are subject to a “but-for” (as opposed to a “contributing factor”) causation standard. The EEOC also notes in its 76 page proposal that new guidelines are necessary because the percentage of retaliation charges has nearly doubled since 1998, when the agency last issued guidance regarding retaliation claims. Continue Reading
On January 15, 2016, the Securities and Exchange Commission’s Office of the Whistleblower (“OWB”) announced the award of more than $700,000 to a “company outsider who conducted a detailed analysis that led to a successful SEC enforcement action.” This award is significant because the whistleblower provided independent analysis to the SEC, rather than inside information of wrongdoing. Continue Reading
The U.S. District Court for the Southern District of New York recently granted a motion for summary judgment dismissing a plaintiff’s SOX and Dodd-Frank whistleblower claims. The court ruled that the plaintiff failed to establish retaliation because: (1) almost all of the plaintiff’s alleged protected activity did not allege shareholder fraud and therefore failed; and (2) the plaintiff did not offer any evidence establishing that a single protected complaint she made concerning the defendant’s SEC proxy statements contributed to her termination. Yang v. Navigators Group, Inc., Case No. No. 13-cv-2073 (S.D.N.Y. Jan. 4, 2016). Continue Reading
On December 15, 2015, the District of Connecticut refused to dismiss a SOX whistleblower retaliation claim, ruling that: (1) the heightened Rule 9(b) pleading standard for fraud claims does not apply to SOX whistleblower retaliation claims; and (2) to plead a “reasonable belief,” a SOX whistleblower plaintiff needs to show that her claim at least approximately satisfied the elements of a claim under the securities laws that allegedly were violated (i.e., that it is sufficiently “tethered” to a claim for a securities law violation). Wiggins v. ING U.S., Inc., No. 14-cv-01089. Continue Reading
On November 24, 2015, the ARB adopted an expansive interpretation of what constitutes an adverse action for claims asserted under the Federal Railroad Safety Act of 1982 (FRSA), holding that a reduced performance rating with no compensation-related consequences and a failure to pay medical bills in connection with a work-related accident are actionable. Fricka v. National Railroad Passenger Corp., ARB Case No. 14-047 (Nov. 24, 2015).
The Eastern District of Tennessee recently dismissed whistleblower claims, finding that the Plaintiff was not entitled to protection under Sarbanes-Oxley, Dodd-Frank, or the False Claims Act (“FCA”). Verble v. Morgan Stanley Smith Barney LLC et al., 3:15-cv-00074 (E.D. Tenn. Dec. 8, 2015). The court’s decision illustrates the sharp divide amongst courts regarding the scope of Dodd-Frank’s whistleblower protection provision. Continue Reading
According to figures recently released by OSHA, there has been a general increase in the number of whistleblower cases filed in fiscal year 2015 (FY 2015), in comparison to the number of cases filed in FY 2014. Here are some of the key findings from OSHA’s FY 2015 figures: Continue Reading
On November 16, 2015, the Securities and Exchange Commission’s Office of the Whistleblower (“OWB”) released its fifth Annual Report on the Dodd-Frank Whistleblower Program to Congress, which details information on OWB’s activities and bounty payouts for the fiscal year, as described in our posts on the 2012, 2013 and 2014 Annual Reports.
In its 2015 report, the SEC highlights that since the inception of the whistleblower program in 2011, the Commission has paid more than $54 million in awards to a total of 22 whistleblowers, with more than $37 million paid in 2015 alone. The SEC also stressed that increased public awareness of the whistleblower program had led to a “substantial growth” in the number of whistleblower tips it received. In addition, the Commission pointed to several important actions it took in 2015 aimed at protecting whistleblowers from unlawful retaliation or attempts to interfere with their ability to report to, and cooperate with, the SEC. Continue Reading
On November 5, 2015, the District of Kansas dismissed a whistleblower retaliation claim under Dodd-Frank, ruling that the statute’s anti-retaliation provision only protects individuals who report securities violations. Azim v. Tortoise Capital Advisors, LLC, Case No. 13-cv-2267. Continue Reading
On November 6, 2015, the DOL’s Administrative Review Board affirmed the dismissal of Consumer Financial Protection Act (“CFPA”) whistleblower claims of a terminated mortgage broker, concluding that the complainant did not engage in protected activity. Childs v Sente Mortgage, ARB Case No. 14-043. This is one of a growing number of claims being filed under the CFPA.