On January 1 2017, the German Federal Financial Supervisory Authority (“BaFin”) set up an online whistleblowing system allowing anyone to anonymously report alleged violations of supervisory law. BaFin is the national supervisory authority for banks, financial service institutions, the securities market and insurance undertakings in Germany. The online whistleblowing system is part of an effort to comply with Section 32 of the 2014 European Market Abuse Regulation (MAR) which obliges EU member states to establish effective mechanisms for reporting actual or potential infringements of EU law. It is the latest addition to a central reporting platform established at BaFin in July 2016. Continue Reading
On February 24, 2017 at 10:30 am, Proskauer Partner Connie Bertram will speak on “Whistleblower Provisions of Sarbanes Oxley” at the American Bar Association Section of Labor and Employment Law’s Federal Labor Standards Legislation Committee Midwinter Meeting in Playa Del Carmen, Mexico. Bertram is the head of Proskauer’s DC Labor & Employment practice, and co-head of the Whistleblowing & Retaliation, and Government Contractor Compliance Groups. She will join co-panelists David Marshall, Partner, Katz Marshall & Banks, LLP and Harry (Hal) Wellford, Jr., Partner, Littler Mendelson P.C.
The panel will discuss legal reactions to heightened scrutiny by the Securities and Exchange Commission, Department of Labor, and Equal Employment Opportunity Commission of confidentiality agreements that limit employee communications with government agencies. The panel will also address recent developments in the Sarbanes Oxley Act’s anti-retaliation provision, including clarification of the “causation” standard for retaliation claims, and whether the Dodd-Frank Act protects internal reporting of perceived securities violations.
A copy of the Subcommittee on the Sarbanes-Oxley Act of 2002’s 2016 Midwinter Meeting Report can be found online here.
A former employee of the upscale outdoor furniture designer and manufacturer Brown Jordan recently failed in his bid to pursue whistleblower retaliation claims against the company and also found himself liable for snooping on his boss’s (and other’s) emails. A three-judge panel of the Eleventh Circuit recently affirmed the District Court’s summary judgment for the employer on the former employee’s purported whistleblower claim, concluding that his report of alleged “misconduct” by his employer’s senior management was not actionable. In their unanimous decision, the judges also affirmed the District Court’s judgment in favor of the employer under the Stored Communications Act (SCA) and Computer Fraud and Abuse Act (CFAA) due to the employee’s spying on the emails of his superiors, colleagues, and subordinates without authorization over a period of months. While both the former employee and former employer traded accusations of wrongdoing during the course of the litigation, after summary judgment, trial and appeal, it is only Carmicle, the former employee, who has been found by the district court and the circuit to have done anything improper. Carmicle v. Brown Jordan Int’l, Inc., et al., No. 16-11350 (11th Cir. Jan. 25, 2017) Continue Reading
On January 13, 2017, OSHA published the Recommended Practices for Anti-Retaliation Programs. OSHA’s guidance provides examples and suggestions of steps companies can take to implement an effective anti-retaliation program. However, it does not interpret whistleblower statutes or create legal obligations. Continue Reading
On January 13, 2017, the Sixth Circuit in Verble v. Morgan Stanley Smith Barney, LLC, declined an opportunity to be the third federal appellate court to address the definition of “whistleblower” under Dodd Frank’s anti-retaliation provision. Continue Reading
On January 6, 2017, the SEC announced the first whistleblower award this year. The award of approximately $5.5 million, comes almost exactly a month after the SEC issued two awards totaling over $4.4 million. Continue Reading
As noted in our May 2016 client alert, President Obama signed the Defend Trade Secrets Act (DTSA), which establishes a federal cause of action for misappropriation of trade secrets into law. As part of its protections, the DTSA provides an immunity defense for lawful disclosures (as defined by the law), including disclosures to an attorney for the sole purpose of reporting or investigating a suspected legal violation. On December 6, 2016, a federal court in Massachusetts clarified the burden associated with asserting the immunity defense in a DTSA action. Unum Group v. Loftus, Case No. 16-cv-40154 (D. Mass.). Continue Reading
The Securities and Exchange Commission’s Office of the Whistleblower recently released its sixth Annual Report on the Dodd-Frank Whistleblower Program to Congress, which details information on the SEC’s activities and bounty payouts. The report covers the SEC’s 2016 fiscal year, which ran from October 1, 2015 to September 30, 2016. Continue Reading
In less than one week, the SEC issued two whistleblower awards totaling over $4.4 million. On December 5, 2016, the SEC issued a whistleblower award of approximately $3.5 million. Several days later, on December 9, 2016, the SEC issued another whistleblower award of more than $900,000. Continue Reading
An ALJ at the U.S. Department of Labor (DOL) recently ruled that a former CFO was entitled to approximately $1.9 million in back pay, front pay, and compensatory damages, concluding that he was retaliated against in violation of Section 806 of SOX. Becker v. Community Health Systems Inc., 2014-SOX-00044 (ALJ Nov. 9, 2016). Continue Reading