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). 

Background

Plaintiff-Appellee was the former Chief Financial Officer for the Defendant-Appellant Company, which designs, develops and distributes video games.  The Company took out a personal loan to place an order for video games, but allegedly failed to record the debt on its balance sheet or in its quarterly financial report, which was filed with the SEC.  Plaintiff-Appellee complained that the Company was engaging in fraud, and refused to sign an amendment to the quarterly financial report in which the Company denied any intentional fraud or misstatement in its earlier filing.  Plaintiff-Appellee’s employment was subsequently terminated.

Plaintiff-Appellee filed a complaint with OSHA, alleging that her termination was retaliatory.  When OSHA failed to issue an order within 180 days, Plaintiff-Appellee notified OSHA that she intended to file a federal lawsuit.  She waited two years to file suit.  The court ultimately awarded her $470,000 in back pay and $123,000 in compensatory damages, as well as attorneys’ fees.  She also received $50,000 from the CEO and $50,000 from the Chairman of the Board.  Defendants-Appellants appealed.

Fourth Circuit’s Ruling

The Fourth Circuit affirmed, ruling as follows.

  • 4-year statute of limitations applies:  First, the court considered whether the claims were timely under the applicable statute of limitations.  Rejecting Defendants’ argument that the allegations sounded in fraud, for which a two-year statute of limitations applies, the court emphasized that Plaintiff-Appellee advanced a claim of retaliation, not fraud.  The court reasoned that because the “retaliation claim can succeed without the ‘discovery of facts constituting’ securities fraud,” the federal “catch-all” four-year statute of limitations governed retaliation claims under SOX.
  • Emotional distress damages are available:  Following the Fifth and Tenth Circuit, the Fourth Circuit also held that emotional distress damages are available to a prevailing party under SOX.       The court reasoned that the statute provides that a Plaintiff “shall be entitled to all relief necessary to make the employee whole,” which includes remedies that are not specifically enumerated in the statute.

Implications

Both the expanded statute of limitations and the availability of emotional distress damages heighten the stakes for employers saddled with SOX whistleblower claims.  Though this whistleblower award may not be quite as staggering as others (such as the $2.1 million award we discussed in a prior post or the$6 million award we discussed in another post), the $693,000 awarded in this case is nevertheless substantial and sends a cautionary message to employers faced with whistleblower claims.

Posted in SOX Whistleblower Decisions
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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 Forbes.com. 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.

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Photo of Allison Martin Allison Martin

Allison Martin is a senior counsel in the Labor & Employment Law Department. Allison represents employers in a wide range of employment litigation matters, including employment discrimination and harassment lawsuits arising under Title VII and similar state and local statutes, retaliation claims, and…

Allison Martin is a senior counsel in the Labor & Employment Law Department. Allison represents employers in a wide range of employment litigation matters, including employment discrimination and harassment lawsuits arising under Title VII and similar state and local statutes, retaliation claims, and wage-and-hour claims. She represents employers in federal and state courts, arbitration tribunals, and before the EEOC and the New York City Commission on Human Rights. Allison has extensive experience litigating both single plaintiff and class action lawsuits.

Allison also counsels clients on a broad range of employment law matters, including investigations, employment policies and procedures, and employee terminations and discipline. She also has experience conducting high-profile internal investigations on behalf of employers.

Allison previously served as a federal law clerk in the U.S. District Court for the Southern District of New York.

At Seton Hall University School of Law, Allison was an Articles Editor for the Seton Hall Law Review. Allison also  interned for Chief Judge Garrett E. Brown (Ret.) of the U.S. District Court for the District of New Jersey while in law school.

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