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.
S.D.N.Y Dismisses Former Employee’s SOX and Dodd-Frank Whistleblower Claims
The U.S. District Court for the Southern District of New York recently granted a motion for summary judgment dismissing a plaintiff’s SOX and Dodd-Frank whistleblower claims. The court ruled that the plaintiff failed to establish retaliation because: (1) almost all of the plaintiff’s alleged protected activity did not allege shareholder fraud and therefore failed; and (2) the plaintiff did not offer any evidence establishing that a single protected complaint she made concerning the defendant’s SEC proxy statements contributed to her termination. Yang v. Navigators Group, Inc., Case No. No. 13-cv-2073 (S.D.N.Y. Jan. 4, 2016).
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.
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.
Second Circuit Expands The Scope Of FLSA Protected Activity To Include Oral Complaints To Employer
In a 2-1 decision issued on April 20, 2015, the Second Circuit expanded the scope of protected activity under the Fair Labor Standard Act’s (FLSA) anti-retaliation provision.
The FLSA prohibits retaliation against an employee who “has filed any complaint . . . related to” the FLSA’s provisions. In Greathouse v. JHS Security, Inc., the Second Circuit considered whether an oral complaint of FLSA violations made by an employee to his superior met the FLSA’s definition of “fil[ing] any complaint.” Specifically, the employee complained orally to his supervisor that he had not been paid in several months. The district court entered a default judgment against the employer, but ruled that the facts alleged did not set forth a FLSA action based upon Second Circuit precedent.
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
Sixth Circuit Dismisses Whistleblower’s Claims Made By Job Applicant
This week, the U.S. Court of Appeals for the Sixth Circuit ruled that a job applicant lacks standing to bring whistle-blower claims under the Energy Reorganization Act and the False Claims Act (“FCA”) because those laws’ retaliation provisions apply only to employees. The Sixth Circuit is the first Court of Appeals to address this issue.
False Claims Act Does Not Protect An Employee Disclosing His Whistleblower History
On October 20, the United States District Court for the Southern District of Ohio found that the False Claims Act (“FCA”) did not protect an employee who was fired after revealing his history as a whistleblower and offering to help his new employer prevent overcharges on a government contract. The court held that the employee failed to state a claim under the FCA because he did not act “in furtherance of” efforts to stop one or more specific or potential FCA violations.
Federal Court in District of Columbia Dismisses Whistleblower Claims of Former Fannie Mae Employee
On August 25, 2014, the District Court for the District of Columbia dismissed a claim brought by a former employee of Fannie Mae alleging violations of the anti-retaliation provisions of the Sarbanes-Oxley Act and the Dodd-Frank Act.