On October 18, 2017, a federal district judge in Alaska ordered a former employee to pay nearly $170,000 of his ex-employer’s legal fees as sanction for removing nine attorney-client privileged documents prior to his termination. The ruling was based on a decision this summer that the former employee willfully and
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
Seventh Circuit Issues Ruling Interpreting False Claim Act Whistleblower Amendments
The Seventh Circuit recently issued a decision interpreting the anti-retaliation provisions 
of the False Claims Act (FCA). The decision provides important clarifications about how courts may interpret recent amendments to this provision. Like a recent decision by the Fourth Circuit, the Seventh Circuit finds that courts may inquire whether the employee’s underlying complaint of FCA fraud was objectively and subjectively reasonable. Using that standard, the Seventh Circuit affirmed a district court’s dismissal of the whistleblower’s claim on a motion for summary judgment.
Fourth Circuit Issues Ruling Interpreting False Claim Act Whistleblower Amendments
The Fourth Circuit recently issued a decision interpreting the anti-retaliation provision of the False Claims Act (FCA). The decision provides important clarification about how courts may interpret 2009 and 2010 amendments to the anti-retaliation provision. Specifically, it finds that courts may inquire whether the employee’s underlying complaint of FCA fraud is objectively and subjectively reasonable.
Divided Sixth Circuit Dismisses Compliance Officer’s FCA Whistleblower Retaliation Claim
Last week, the U.S. Court of Appeals for the Sixth Circuit rejected a former compliance officer’s whistleblower retaliation claim because she did not establish that she had an objectively reasonable belief that she was investigating illegal conduct when her employment was terminated.
DC Circuit: Internal Investigation Documents Are Protected from Disclosure in FCA Case
Reversing a lower court decision, the D.C. Circuit recently concluded – for a second time – that certain internal audit documents are protected from disclosure by the attorney-client communication and work production privileges. On August 11, 2015, the D.C. Circuit issued a second writ of mandamus regarding the same group of documents, internal reports which the plaintiff/whistleblower sought in connection with his False Claims Act suit alleging kickbacks and overbilling related to Iraq War subcontracting. The appellate court reversed the district court’s order requiring KBR, Inc. to produce the documents, holding that permitting disclosure would “inject[] uncertainty into application of attorney-client privilege and work-product protection to internal investigations.”
Self-Help Discovery Does Not Immunize Employee from Prosecution, Says NJ Supreme Court
On June 23, 2015, the New Jersey Supreme Court ruled that Quinlan v. Curtiss-Wright Corporation, 204 N.J. 239 (2010), does not bar criminal prosecutions arising from an employee’s removal of confidential company documents to support a discrimination claim. State v. Saavedra, No. A-68-13.
Proskauer Participates With Head of SEC Whistleblower Program in 4/22/15 Webinar
Proskauer Partner Connie N. Bertram, co-head of the Whistleblowing & Retaliation Practice, participated in a webinar last week with Sean McKessy, Chief of the SEC’s Office of the Whistleblower. The webinar, sponsored by the American Bar Association, was entitled “New Developments in Whistleblower Claims and the SEC.” The participants discussed the Supreme Court’s recent decision in Lawson, the scope of protected activity and adverse employment action under SOX, and whether internal reports are protected under Dodd-Frank. The participants also discussed recent Dodd-Frank bounty recoveries, including a recovery by a controller of a publicly-traded company that had been announced that morning.
SEC Announces Enforcement Action Regarding Employee Confidentiality Agreement
On April 1, the Securities and Exchange Commission (SEC) announced its first settlement of an enforcement action under the SEC’s Rule 21F-17, which prohibits any person from taking “any action to impede an individual from communicating directly with the Commission staff about a possible securities law violation, including enforcing, or threatening to enforce, a confidentiality agreement … with respect to such communications.” The SEC’s announcement comes on the heels of prior comments by Sean McKessy, Chief of the SEC’s Office of the Whistleblower, cautioning both in-house and outside counsel who draft confidentiality agreements and company policies that the SEC will actively pursue remedies against companies and attorneys who promulgate or draft policies that the SEC might view as chilling employees’ abilities to communicate with the SEC about potential securities-law violations.
Department of State Inspector General Issues Report on Contractor Confidentiality Provisions with Employees
Yesterday, the Office of the Inspector General for the U.S. Department of State (OIG) issued a report on its review of the use of confidentiality agreements and policies by Department of State contractors. In preparing the report, OIG sent a five-question survey to the 30 contractors with the largest Department