In a SOX whistleblower case of first impression, the U.S. District Court for the Eastern District of Virginia ruled that front pay may be ordered in lieu of reinstatement.  However, the court ultimately determined that front pay was not warranted under the facts of this case.  



Plaintiff Andrea Jones (Plaintiff) was the CFO of Southpeak Interactive (Company), a videogame publisher in Midlothian, Virginia.  The Company terminated her employment on August 14, 2009, two days after she informed the SEC of alleged discrepancies in the accounting of the inventory and costs, which she previously raised with the Board of Directors and outside counsel.  Plaintiff filed suit under Section 806 of SOX, alleging that she was discharged in retaliation for reporting the alleged discrepancies to the SEC. 


A jury found in Plaintiff’s favor, awarding her $593,000 in back pay against the Company and $178,500 in compensatory damages against two other individual defendants.  Plaintiff agreed to the Judge’s remittitur of “$470,000 in back pay and $123,000 in compensatory damages against [the Company],” and . . . awards of $50,000 against each of two individual defendants.  The court then focused on Plaintiffs’ motion for front pay in lieu of reinstatement, seeking the “difference in total compensation between Jones’ current job and her former job with [the Company].”

The court found support for a front pay award under Section 806 of SOX from the U.S. Department of Labor’s November 3, 2011 Interim Final Rule.  However, the court closely analyzed whether front pay was appropriate in this case, as the Company was no longer operational and Plaintiff would not have been employed at the Company beyond 2011.  Although Plaintiff offered evidence that she had nine interviews for similar CFO positions, the record contained “no information about the compensation levels for those position,” nor any “proof that the hypothetical, laid-off plaintiff would have been more successful in obtaining those positions than the actual, unlawfully terminated plaintiff.”  Indeed, the court recognized, even in the absence of the purported retaliation, Plaintiff would have been laid off in 2011 “in the midst of a struggling job market” and searching for “a high-ranking position with limited openings.”   Thus, the court ultimately declined to award Plaintiff front pay.


Though the court found that front pay can be available to SOX whistleblowers under certain conditions, this decision is nevertheless favorable to employers to the extent that the court took a rather strict approach to determining the conditions under which it should be awarded.

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Photo of Steven J. Pearlman Steven J. Pearlman

Steven J. Pearlman is a partner in the Labor & Employment Law Department and Co-Head of the Whistleblowing & Retaliation Group and the Restrictive Covenants, Trade Secrets & Unfair Competition Group.

Steven’s practice covers the full spectrum of employment law, with a particular…

Steven J. Pearlman is a partner in the Labor & Employment Law Department and Co-Head of the Whistleblowing & Retaliation Group and the Restrictive Covenants, Trade Secrets & Unfair Competition Group.

Steven’s practice covers the full spectrum of employment law, with a particular focus on defending companies against claims of employment discrimination, retaliation and harassment; whistleblower retaliation; restrictive covenant violations; theft of trade secrets; and wage-and-hour violations. He has successfully tried cases in multiple jurisdictions, and defended one of the largest Illinois-only class actions in the history of the U.S. District Court for the Northern District of Illinois. He also secured one of only a few ex parte seizures orders that have been issued under the Defend Trade Secrets Act, and obtained a world-wide injunction in federal litigation against a high-level executive who jumped ship to a competitor.

Reporting to boards of directors, their audit committees, CEOs and in-house counsel, Steven conducts sensitive investigations and has testified in federal court. His investigations have involved complaints of sexual harassment involving C-suite officers; systemic violations of employment laws and company policies; and fraud, compliance failures and unethical conduct.

Steven was recognized as Lawyer of the Year for Chicago Labor & Employment Litigation in the 2023 edition of The Best Lawyers in America. He is a Fellow of the College of Labor and Employment Lawyers.  Chambers describes Steven as an “outstanding lawyer” who is “very sharp and very responsive,” a “strong advocate,” and an “expert in his field.” Steven was 1 of 12 individuals selected by Compliance Week as a “Top Mind.” Earlier in his career, he was 1 of 5 U.S. lawyers selected by Law360 as a “Rising Star Under 40” in the area of employment law and 1 of “40 Illinois Attorneys Under Forty to Watch” selected by Law Bulletin Publishing Company. Steven is a Burton Award Winner (U.S. Library of Congress) for “Distinguished Legal Writing.”

Steven has served on Law360’s Employment Editorial Advisory Board and is a Contributor to He has appeared on Bloomberg News (television and radio) and Yahoo! Finance, and is regularly quoted in leading publications such as The Wall Street Journal.

The U.S. Chamber of Commerce has engaged Steven to serve as lead counsel on amicus briefs to the U.S. Supreme Court and federal circuit courts of appeal. He was appointed to serve as a Special Assistant Attorney General for the State of Illinois in employment litigation matters. He has presented with the Solicitor of the DOL, the Acting Chair of the EEOC, an EEOC Commissioner, Legal Counsel to the EEOC and heads of the SEC, CFTC and OSHA whistleblower programs. He is also a member of the Sedona Conference, focusing on trade secret matters.