S.D.N.Y. Dismisses Dodd-Frank Whistleblower Retaliation Claim

SDNY1In one of the first cases to address the standard governing a motion for summary judgment in a Dodd-Frank whistleblower retaliation case, Judge Jed S. Rakoff ruled that two former executives of Vista Outdoor Inc. (the Company) had failed to show that their terminations were causally connected to vague complaints about internal Company controls.  Vista Outdoor Inc. v. Reeves Family Trust, et. al., No. 16-cv-5766 (S.D.N.Y. Feb. 13, 2017). Continue Reading

Proskauer to Present on Modern Whistleblower Retaliation Law and the SEC Bounty Program at Bloomberg’s BNA Webinar

On Friday, March 3, 2017, Proskauer Partner Steve Pearlman will present on key aspects of modern whistleblower retaliation law, SEC enforcement actions involving “pre-taliation,” and the SEC Office of the Whistleblower bounty program. Pearlman is the co-head of the Whistleblowing & Retaliation Group.  He will join co-panelist Sean X. McKessy, Partner, Phillips & Cohen LLP, the first-ever Chief of the SEC Office of the Whistleblower.

The program will explain common claims and defenses and related issues under the whistleblower protection provisions of Sarbanes-Oxley, Dodd-Frank and similar whistleblower laws. This includes issues of (i) coverage, (ii) protected activity, (iii) causation, and (iv) damages.  Additionally, the program will cover the SEC’s involvement in whistleblower retaliation litigation in an amicus capacity and the SEC’s enforcement of Dodd-Frank’s prohibition on “pre-taliation.”  Finally, the program will address the functioning of the SEC Office of the Whistleblower, including its approach to whistleblower tips and trends in issuing bounty awards.

To register for the program, click here.


Proskauer to Present on Managing Whistleblowing Employees at ABA Midwinter Meeting

On Thursday March 23, 2017 at 9:00 a.m., Lloyd Chinn will speak on “Practical Advice and Tips for Managing Whistleblowing Employees: Where Do We Go After the Volcano Blows?” at the 2017 Midwinter Meeting of the ABA Section of Labor and Employment Law’s Employment Rights and Responsibilities Committee in Puerto Vallarta, Mexico. Chinn is a partner in Proskauer’s Labor & Employment Law Department and co-head of the Whistleblowing & Retaliation Group. He will join co- panelists Stacey A. Campbell, Campbell Litigation, P.C., Virginia “Ginger” Hardwick, Hardwick & Benfer LLC, and Gary Noah Savine, The Law Office of G. Noah Savine, Ltd.

This panel will tackle the challenges that employers and employees face when a whistleblower reports misconduct. Topics include subtle retaliation that can be actionable (such as “outing” a whistleblower), investigating a whistleblower’s disclosures without investigating the whistleblower’s motive, and holding a whistleblower accountable for performance problems without giving rise to a retaliation claim.

To register for the program, click here.

Proskauer to Present at Whistleblower Conference in NY

On Monday, February 27, 2017, Proskauer Partner Steve Pearlman, co-head of the Firm’s Whistleblowing & Retaliation Group, will present on key considerations for crafting effective employment-related agreements, including separation and settlement agreements, at a program developed by Compliance Week and Financial Research Associates. This in-depth conversation will allow senior compliance, finance, and audit executives the opportunity to discuss ways to mitigate risks.

The program will cover topics such as: enforcement trends and increased whistleblower reports and rewards; new DOL guidelines for effective whistleblower compliance programs; increased scrutiny on employee agreements, severance agreements and confidentiality; considerations when someone from your compliance or legal department is the whistleblower; unique challenges when the whistleblower is not an employee; and insights from the plaintiff bar on the profile of a whistleblower.

To register for the program, click here.


German Federal Financial Supervisory Authority (BaFin) Releases Online Whistleblowing System

200px-Bundesanstalt_für_Finanzdienstleistungsaufsicht_logo_svgOn 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

Proskauer To Present On Whistleblower Developments At ABA Midwinter Meeting

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.

Proskauer Represents Employer Against Former Executive Found Liable for Snooping on Boss’s and Others’ Emails

11th cir 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

OSHA’s Advisory Guidance on Anti-Retaliation Programs

oshaOn 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