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Proskauer Whistleblower Defense

SEC Continues to Investigate Contractual Impediments to Whistleblower Complaints

Posted in SEC

secAs Rachel Louise Ensign reported earlier this week in the Wall Street Journal (subscription required), the Securities Exchange Commission (“SEC”) continues to probe obstacles to corporate employees blowing the whistle. This time, according to Ms. Ensign, the agency has requested that companies “turn over every nondisclosure agreement, confidentiality agreement, severance agreement, and settlement agreement they entered into with employees since Dodd-Frank went into effect, as well as documents related to corporate training on confidentiality.”    Continue Reading

Another SEC Whistleblower Amicus Brief On Whether Dodd-Frank Covers Internal Complaints

Posted in Dodd Frank

On February 6, the SEC filed its third amicus brief defending its interpretive rule on Dodd-Frank’s anti-retaliation provision, 15 U.S.C. §78u-6(h)(1).  The impetus is a ruling out of the Southern District of New York in Berman v. Neo@Ogilvy, No. 14-cv-523, which follows the Fifth Circuit Asadi decision concluding that the Dodd-Frank anti-retaliation provision does not cover internal complaints.  The district court in Berman dismissed the plaintiff’s lawsuit because he made only an internal report, and an appeal the Second Circuit ensued. Continue Reading

4th Circuit: 4 Year Statute Of Limitations Applies To SOX Claims

Posted in SOX Whistleblower Decisions

Seal of the United States Court of Appeals for the Fourth CircuitThe Fourth Circuit recently held that SOX whistleblower retaliation claims are subject to a four-year statute of limitations and that emotional distress damages are available in SOX actions.  Jones v. SouthPeak Interactive Corp. of Del., Case Nos. 13-2399 and 14-1765 (4th Cir. Jan. 26, 2015).  Continue Reading

Consumer Financial Product Whistleblower Complaints Up Dramatically, SOX Complaints (with OSHA) Down

Posted in OSHA Administration

Since the enactment of Dodd-Frank in 2010, the number of whistleblower complaints filed under the Consumer Financial Protection Act (“CFPA”) has risen significantly while the number of SOX complaints filed with OSHA has largely declined.  According to data provided by OSHA, the total number of whistleblower complaints has generally increased over the past ten years.  This overall trend is not surprising in light of the greater publicity around whistleblowers in the wake of the passage of Dodd-Frank, employee-favorable rulings by the DOL, and pro-employee rulings by many courts. Continue Reading

Trends in N.J. Whistleblowing and Retaliation Law – 2014 Roundup

Posted in Dodd Frank, False Claims Act, State-Specific Whistleblower Claims

2014 was another busy year for developments in whistleblowing and retaliation law in New Jersey. This blog post summarizes noteworthy state and federal cases for employers to consider in the new year. Continue Reading

New York Times: Bounty Programs Incentivize Wrongdoers to Collect

Posted in Uncategorized

We have seen a number of substantial whistleblower awards make headlines this year, but a recent article on nytimes.com discusses the potential downsides of government-sponsored bounty programs: rewarding whistleblowers by paying them millions of dollars for information may lead to perverse incentives by allowing wrongdoers to win significant sums of money with little government accountability for the awards.  Continue Reading

SDNY Follows Asadi: Internal Tipsters Not Dodd-Frank “Whistleblowers”

Posted in Dodd Frank

On December 5, 2014, the Southern District of New York in Berman v. Neo@Ogilvy, No. 14-cv-523, ruled that an employee who complains internally about securities law violations does not qualify as a “whistleblower” under the Dodd-Frank whistleblower protection provision because that statute only protects individuals who report to the SEC.  The court followed the Fifth Circuit and diverged from prior decisions from the same district. Continue Reading

New York Times Discusses the Growth of Whistleblower Programs

Posted in SEC

As federal agencies dole out record-breaking awards to tipsters (such as the SEC’s recent $30 million award), whistleblower programs remain a topic of public interest.  Earlier this month, The New York Times published an article about the growth of the whistleblower programs operated by the S.E.C., Justice Department, and I.R.S, which financially incentivize the reporting of misconduct. Continue Reading

SEC’s Second Amicus Brief On Whether Dodd-Frank Protects Internal Reports

Posted in Dodd Frank

On December 11, 2014, the SEC filed an amicus brief in support of Plaintiff-Appellant Mikael Safarian asking the Third Circuit to revive his Dodd-Frank whistleblower claim and endorse the agency’s definition of “whistleblower” as including individuals who only report internally.  If the Third Circuit addresses this issue—and it might not since it was not a basis for the district court’s ruling—and adopts the SEC’s position, that would create a circuit split, which could ultimately result in the U.S. Supreme Court issuing a final determination. Continue Reading