Category Archives: SOX Whistleblower Decisions

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Tenth Circuit Vacates ARB Whistleblower Decision

On October 17, 2017, the Tenth Circuit overturned the ARB’s decision in favor of complainant for want of protected activity under SOX.  Dietz v. Cypress Semiconductor Corp., No. 16-9529 (Oct. 17, 2017).  This decision rolled back the ARB’s expansive determination that a company violated federal mail and wire fraud laws by implementing a mandatory bonus … Continue Reading

S.D. Fla. Refuses To Dismiss SOX and Dodd-Frank Whistleblower Claims

The Southern District of Florida recently denied a Rule 12(b)(6) motion to dismiss a former employee’s Sarbanes-Oxley and Dodd-Frank whistleblower retaliation claims, finding that the plaintiff sufficiently alleged that she had an objectively reasonable belief regarding alleged securities violations.  Thomas v. Tyco Int’l Mgmt. Co., LLC, No. 16-cv-80501 (Mar. 31, 2017).  This case is noteworthy … Continue Reading

UPDATE: California Federal Court Permits Former Bank Internal Auditor’s Whistleblower Claims to Proceed

A California federal court—in Erhart v. BofI Holding, Inc., 2017 U.S. Dist. LEXIS 14755, Case No. 15-cv-02287 (S.D. Cal. Sept. 11, 2017)—recently denied BofI Federal Bank’s (“BofI’s”) motion to dismiss the Sarbanes-Oxley whistleblower claims plead in their former internal auditor Charles Erhart’s amended complaint. The court also denied BofI’s motion as to Erhart’s defamation claim, … Continue Reading

DOL Allows SOX Claim Where Foreign Whistleblower Alleged Violation of US Law

The Department of Labor’s Administrative Review Board (ARB) recently held that a former employee of Exelis Systems Corporation who was employed in Afghanistan could bring a SOX claim even though he worked exclusively outside of the United States.  Blanchard v. Exelis Systems Corp./Vectrus Systems Corp., ARB Case No. 15-031 (August 29, 2017).  In so ruling, … Continue Reading

Purported Whistleblower Barred from Pursuing Illinois Retaliatory Discharge Claim

The Northern District of Illinois recently dismissed an Indiana-based employee’s claims for retaliatory discharge in violation of common law pursuant to Illinois public policy, focusing on the nature of the connection (or lack thereof) to Illinois and noting that the plaintiff possessed adequate statutory remedies under federal whistleblower laws.  O’Risky v. Mead Johnson Nutrition Co., … Continue Reading

Ninth Circuit Affirms Dismissal Of Dodd-Frank Whistleblower Case, Using Securities Fraud Standard

The Ninth Circuit recently affirmed a grant of summary judgment in an employer’s favor, dismissing a SOX and Dodd-Frank whistleblower retaliation case based on the plaintiff’s lack of an objectively reasonable belief of violations of securities law.  Rocheleau v. Microsemi Corporation, Inc., 680 Fed. Appx. 533 (2017). Background.  Defendant, a publicly traded company, hired Plaintiff … Continue Reading

Second Circuit Affirms the Dismissal of a SOX Claim for Failing to Meet the “Reasonable Belief” Standard

On June 1, 2017, the Second Circuit affirmed the dismissal of a Sarbanes-Oxley Act (“SOX”) whistleblower retaliation claim brought by a former Metropolitan Life Insurance Co. (“Company”) employee because the employee lacked a reasonable belief that the Company engaged in any fraudulent conduct.  Kantin v. Metropolitan Life Insurance Co., No. 16-1091-cv (2d Cir. June 1, … Continue Reading

The Northern District of New York Applies the “Reasonable Belief” Standard

On May 11, 2017, the Northern District of New York applied the Second Circuit’s standard for evaluating a Dodd-Frank retaliation claim in response to a motion to dismiss under F.R.C.P. Rule 12(b)(6).  The court denied the employer’s motion to dismiss unlawful retaliation claims brought by a former employee under Dodd-Frank, finding that the whistleblower had … Continue Reading

California Federal Court Upholds $8 Million Jury Verdict In Former General Counsel’s Whistleblower Lawsuit

Recently, a California federal court denied the defendant–employer’s motion for a new trial, upholding the jury’s $7.96 million verdict finding that the Company terminated its former general counsel for reporting alleged Foreign Corrupt Practices Act violations.  See Sanford S. Wadler v. Bio-Rad Labs., Inc. et al., 2017 WL 1910057 (N.D. Cal. May 10, 2017).… Continue Reading

Third Circuit Revives In-House Attorney’s Whistleblower Claim

On April 12, 2017, the Third Circuit partially revived a former in-house attorney’s whistleblower retaliation lawsuit against his previous employer.  Danon v. Vanguard Group, Inc., No. 16-cv-2881. Plaintiff, a former in-house tax lawyer, previously raised retaliation claims against the Company in New York State Court under the New York False Claims Act, alleging he was … Continue Reading

N.D. Indiana: Employer Bears Burden of Proving Whistleblower Exhausted Administrative Remedies

On February 1, 2016, the Northern District of Indiana ruled in a case brought under the Federal Railroad Safety Act (FRSA) that whether a whistleblower has fulfilled relevant administrative requirements prior to filing suit is a “condition precedent” rather than a “jurisdictional requirement.”  King v. Ind. Harbor Belt R.R., 2017 U.S. Dist. LEXIS 43263 (N.D. … Continue Reading

Texas District Court Dismisses SOX Whistleblower Claim For Lack of Protected Activity

On March 21, 2017, the Northern District of Texas dismissed a former employee’s whistleblower retaliation claim on the ground that her allegations of fraud were too far removed from potentially harming the shareholders of a publicly-traded company to be covered under SOX’s anti-retaliation protections. Brown v. Colonial Savings, F.A., No. 4:16-cv-00884 (N.D. Tex. Mar. 21, … Continue Reading

Maryland District Court Dismisses SOX and Dodd Frank Whistleblower Claims

On March 1, 2017, the District of Maryland dismissed a Dodd Frank whistleblower retaliation claim because the plaintiff failed to allege that he had complained directly to the SEC about a violation of securities laws, and dismissed the plaintiff’s SOX whistleblower retaliation claim because the complaint did not allege that the employer was a publically … Continue Reading

Proskauer to Present on Managing Whistleblowing Employees at ABA Midwinter Meeting

On Thursday March 23, 2017 at 9:00 a.m., Lloyd Chinn will speak on “Practical Advice and Tips for Managing Whistleblowing Employees: Where Do We Go After the Volcano Blows?” at the 2017 Midwinter Meeting of the ABA Section of Labor and Employment Law’s Employment Rights and Responsibilities Committee in Puerto Vallarta, Mexico. Chinn is a partner … Continue Reading

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 & Employment practice, and co-head … Continue Reading

E.D. Pennsylvania Limits Protected Activity Under SOX

In Westawski v. Merck & Co., No. 14-cv-3239 (E.D. Pa. Oct. 18, 2016), the Eastern District of Pennsylvania granted Defendant Merck & Co. (Company) summary judgment on Plaintiff Joni Westawski’s (Plaintiff) SOX whistleblower retaliation claim, concluding that her purported belief that the Company violated securities laws was not objectively reasonable.… Continue Reading

Proskauer Joins Heads of SEC & OSHA Whistleblower Programs in Webinar

On September 27, 2016, Proskauer Partner Steven J. Pearlman, co-head of the Whistleblowing & Retaliation Practice Group, participated in a Bloomberg webinar with Jane Norberg, Acting Chief of the SEC Office of the Whistleblower, MaryAnn Garrahan, Director of OSHA’s Whistleblower Protection Program, and plaintiff-side practitioner, Jason Zuckerman.  The participants discussed: the SEC Whistleblower Reward Program; … Continue Reading

Whistleblower’s Attorney’s Communications with Regulators Found to be Protected by Work Product Doctrine

A California Magistrate Judge in BofI Federal Bank v. Erhart ruled that a whistleblower’s attorney’s communications sent to federal regulators were protected by the attorney work product doctrine.  No. 15-cv-2353 (S.D. Cal. Aug. 5, 2016).  The court concluded that the whistleblower’s attorney had not waived work product protection through her disclosure to third-party regulators, finding that she … Continue Reading

E.D. Wisconsin: SOX Does Not Protect Whistleblower Complaints Based On Immaterial, Routine Events

On August 25, 2016, the Eastern District of Wisconsin granted the Defendant’s Motion for Summary Judgment on its former CEO’s SOX whistleblower claim.  The court ruled that Plaintiff’s complaint to the Board of Directors did not implicate any securities violations or fraud, and was not a protected disclosure where it was the Board itself Plaintiff … Continue Reading

OSHA Issues New Guidance Regarding Whistleblower Settlements

OSHA has issued new guidance on approving settlement agreements in whistleblower cases, revising portions of its Whistleblower Investigations Manual.  The guidance, dated August 23 but not released until September 15, states that settlements approved by OSHA cannot contain provisions discouraging employees from making future disclosures or contacting the government.  It also sets forth other settlement … Continue Reading

S.D.N.Y. Dismisses SOX and Dodd-Frank Whistleblower Claims For Lack Of Protected Activity

On June 22, 2016, Judge Daniels of the Southern District of New York dismissed SOX and Dodd-Frank whistleblower claims, ruling that Plaintiff’s alleged internal complaints did not constitute protected activity, as they did not implicate securities laws, mail fraud, or wire fraud.  Diaz v. Transatlantic Reinsurance Co., No. 16-cv-1355.… Continue Reading
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