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On August 8, 2014, the Second Circuit affirmed the dismissal of a SOX whistleblower retaliation claim brought by a former AECOM Technology Corp. (“Company”) employee, holding that he did not engage in protected activity because he lacked a reasonable belief that the alleged conduct of which he complained violated one of the enumerated federal provisions in Section 806 of SOX.  Nielsen v. AECOM Technology Corp., No. 13-0235-CV (2d Cir. August 8, 2014).  Notably, however, the court abandoned the stricter standard – previously used by courts in the Circuit – that focuses on whether the employee’s protected communications “definitively and specifically” related to one of the listed categories of fraud or securities violations in Section 806.

As recently reported by Ed Benson of Law 360, on July 4th, 2014, the United States Securities and Exchange Commission (the “SEC” or “Commission”) issued a final order that denied a whistleblower award claim on the $18 million that the SEC recovered in a settlement agreement with Harbinger Capital Partners LLC (“Harbinger”) and the company’s chief executive Philip Falcone (“Falcone”).

The ARB recently affirmed an ALJ’s decision that American Commercial Lines Inc. (the “Company”) did not violate the whistleblower protection provision in Section 806 of SOX where the Company demonstrated by clear and convincing evidence that its decision to discharge employee Angelina Zinn, who was an in-house attorney, was based on her insubordination.  Zinn v. American Commercial Lines Inc., ARB Case No. 13-021 (ARB Dec. 17, 2013).