On May 22, 2017, the U.S. Commodity Futures Trading Commission (“CFTC” or the “Commission”) adopted several additions to its whistleblower rules. Among other things, the amendments expand the Commission’s power to pursue anti-retaliation claims on behalf of whistleblowers and, like the SEC, now prohibit confidentiality agreements that “impede” a whistleblower’s communications with the CFTC. The CFTC first proposed some form of these amendments to its Whistleblower Rules last year. Continue Reading
On May 11, 2017, the Northern District of New York applied the Second Circuit’s standard for evaluating a Dodd-Frank retaliation claim in response to a motion to dismiss under F.R.C.P. Rule 12(b)(6). The court denied the employer’s motion to dismiss unlawful retaliation claims brought by a former employee under Dodd-Frank, finding that the whistleblower had sufficiently alleged a reasonable belief of plausible securities law violations in his complaint. McManus v. Tetra Tech Construction, Inc., et al., 2017 U.S. Dist. LEXIS 71838 (N.D.N.Y. May 11, 2017). Continue Reading
Recently, a California federal court denied the defendant–employer’s motion for a new trial, upholding the jury’s $7.96 million verdict finding that the Company terminated its former general counsel for reporting alleged Foreign Corrupt Practices Act violations. See Sanford S. Wadler v. Bio-Rad Labs., Inc. et al., 2017 WL 1910057 (N.D. Cal. May 10, 2017). Continue Reading
On May 2, 2017, the Securities and Exchanges Commission issued a Dodd-Frank whistleblower award of more than $500,000 to an unidentified company employee. According to the SEC, the individual reported information that prompted an SEC investigation and resulted enforcement action by the agency. Jane Norberg, Chief of the SEC’s Office of the Whistleblower stated that the employee reported “hard-to-detect violations of the securities law.” Continue Reading
On April 25, 2017, Digital Realty Trust Inc. asked the United States Supreme Court to decide whether an employee who files an internal complaint (as opposed to a complaint with the SEC) is covered by the Dodd-Frank Act’s whistleblower-protection provision. Continue Reading
On April 25, 2017, the Securities and Exchange Commission issued a Dodd-Frank whistleblower award of nearly $4 million. This was the first bounty award that was issued from start-to-finish (i.e. from the preliminary determination stage through final order) since Trump’s inauguration. To maintain the whistleblower’s confidentiality, the SEC declined to disclose the organization involved. The agency did acknowledge, however, that the whistleblower submitted “detailed and specific information about serious misconduct and provided additional assistance during the ensuing investigation.” In its release, the SEC noted that enforcement actions like this one have resulted in more than $953 million in financial remedies against wrongdoers, and approximately $153 million in awards to whistleblowers. Continue Reading
On April 12, 2017, the Third Circuit partially revived a former in-house attorney’s whistleblower retaliation lawsuit against his previous employer. Danon v. Vanguard Group, Inc., No. 16-cv-2881.
Plaintiff, a former in-house tax lawyer, previously raised retaliation claims against the Company in New York State Court under the New York False Claims Act, alleging he was discharged in retaliation for informing senior employees of his belief that the Company was violating certain tax and corporate laws. The state court dismissed the case based on the plaintiff’s failure to demonstrate that the Company knew he was involved in any protected conduct at the time of his termination. Plaintiff then filed suit against the Company in the District Court for the Eastern District of Pennsylvania alleging whistleblower retaliation in violation of SOX, Dodd-Frank, and the Pennsylvania Whistleblower Law. His claims again were dismissed because the court determined he was precluded from asserting the Company’s knowledge of his allegedly protected conduct (we previously wrote about the SEC’s amicus brief to the district court in support of the plaintiff’s arguments here).
On February 1, 2016, the Northern District of Indiana ruled in a case brought under the Federal Railroad Safety Act (FRSA) that whether a whistleblower has fulfilled relevant administrative requirements prior to filing suit is a “condition precedent” rather than a “jurisdictional requirement.” King v. Ind. Harbor Belt R.R., 2017 U.S. Dist. LEXIS 43263 (N.D. Ind. Feb. 1, 2017).
Plaintiff, who was employed by the Indiana Harbor Belt Railroad (Company), filed a whistleblower retaliation claim under FRSA, a whistleblower protection statute that is similar in many respects to Section 806 of SOX. Like many other whistleblower protection statutes, the FRSA requires a whistleblower to file a complaint with OSHA within 180 days after the alleged retaliation occurred.
On March 21, 2017, the Northern District of Texas dismissed a former employee’s whistleblower retaliation claim on the ground that her allegations of fraud were too far removed from potentially harming the shareholders of a publicly-traded company to be covered under SOX’s anti-retaliation protections. Brown v. Colonial Savings, F.A., No. 4:16-cv-00884 (N.D. Tex. Mar. 21, 2017).
On Monday, March 20, 2017, the U.S. Supreme Court denied a Petition for Writ of Certiorari in Verble v. Morgan Stanley Smith Barney, LLC. (No. 16-946), thereby declining an opportunity to resolve a conflict amongst circuit courts as to whether Dodd Frank’s anti-retaliation protections extend to employees who do not report an alleged securities violation to the SEC. Continue Reading