Tag Archives: whistleblowing

The SEC Awards $700,000 to External Whistleblower – Employment Law This Week

One of the featured stories on Employment Law This Week – Epstein Becker Green’s new video program – is the SEC reminder that their bounty program applies to external whistleblowers.

The U.S. Securities and Exchange Commission has awarded $700,000 to a whistleblower who was not employed by the company he exposed. The external whistleblower discovered the issue when he ran a detailed analysis on the company. The agency explained that analysis from “industry experts” is as valuable as insider information. The whistleblower program began after the Dodd-Frank Act was passed and has now yielded $55 million in awards. This latest award raises new questions, including how the SEC will define “industry experts.”

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ILN Today Post

Time for Heroes or Villains? – New Legislation Brings Rules for Whisteblowing in Hungary

“Whistleblowing”, i.e. the reporting of misconduct occurring in an organisation, has a considerable history in the United States and the United Kingdom. The legislation of these countries has already elaborated the process, how employees can report anomalies discovered at their workplace to their employer. More…

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Announcing Our Expanded Coverage of Whistleblowing and Compliance Law

We’re happy to announce that Epstein Becker Green’s Whistleblowing & Compliance Law Blog has joined our blog.  Readers of both blogs will benefit from our coverage of whistleblowing and compliance law, in addition to the financial services employment law topics our readers have come to expect.

This combination represents the addition of more than 40 posts dating back to April 2010, with a focus on Dodd-Frank, Sarbanes-Oxley, the False Claims Act, and whistleblowing-related topics.

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Dodd-Frank’s Ambiguous Definition of "Whistleblower" Construed Broadly to Favor Employee Protection

by Allen B. Roberts, Frank C. Morris, Jr., and Michael J. Slocum

In what has been reported to be the first decision permitting a retaliation claim under the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (“Dodd-Frank”) to survive dismissal, the U.S. District Court for the District of Connecticut (“Court”) has adopted a broad view of who qualifies as a “whistleblower” under that law. The Court rejected an employer’s request for a literal construction of Dodd-Frank’s definition and protection of whistleblowers, and instead relied upon what it saw as an ambiguity in the statutory language to endorse the Security and Exchange Commission’s (“SEC” or “Commission”) Final Rule implementing the whistleblower provisions of Dodd-Frank (“Final Rule”) that liberally expand protections to individuals who do not fit within the statutory definition of “whistleblowers.” In Kramer v. Trans-Lux Corp., 11-cv-01424 (D. Conn. Sept. 25, 2012), the Court declined to dismiss the lawsuit of an employee who claimed a “reasonable belief” of a “possible” securities law violation governed by the Sarbanes-Oxley Act but did not follow explicit statutory procedures for reporting it. 

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Minimum Pleading Standard for Whistleblower Cases Reset – ARB Rejects Supreme Court’s "Plausibility" Standard, Holds "Fair Notice" Is Sufficient for Administrative Complaints to Survive Dismissal Motion, and Gives Complainant a Chance to Amend

by Allen B. Roberts, Stuart M. Gerson, Frank C. Morris, Jr., and Michael J. Slocum

Our previous postings have noted the progression of decisions during the past two years by the U.S. Department of Labor (“DOL”) Administrative Review Board (“ARB”) that have liberally expanded substantive provisions of whistleblower statutes under its jurisdiction. Now, the ARB has enabled whistleblowers to maintain their administrative complaints and survive dismissal in circumstances where recital of the factual bases of their claims would be fatally deficient if filed in federal court instead of a DOL administrative proceeding. The currently constituted ARB has rejected the heightened pleading standards, announced by the U.S. Supreme Court and applicable in federal district courts, requiring that a complaint set forth sufficient factual allegations to “state a claim to relief that is plausible on its face.” Instead of that judicial standard, the ARB has elected to require that an administrative whistleblower complaint filed before the Occupational Safety and Health Administration (“OSHA”) and the DOL’s Office of Administrative Law Judges (“OALJ”) need only “give ‘fair notice’ of the protected activity and adverse action” in order to withstand a motion to dismiss; and complainants are afforded “sufficient opportunity to amend or supplement” a complaint that does not measure up in the first instance. Evans v. U.S. Environmental Protection Agency, ARB Case No. 08-059 (July 31, 2012).     

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OSHA’s Final Rule Implementing Whistleblower Protections of Surface Transportation Assistance Act Impacts Employers That Own, Lease, or Operate Commercial Motor Vehicles

by Allen B. Roberts and Michael J. Slocum

Under a final rule (“Final Rule”) issued by the Occupational Safety and Health Administration (“OSHA”), commercial motor carriers that own or lease a vehicle in a business affecting interstate commerce or assign employees to operate such a vehicle are impacted by Surface Transportation Assistance Act of 1982 (“STAA”) whistleblower protections available to drivers of commercial motor vehicles (including independent contractors when personally operating a commercial motor vehicle), mechanics, and freight handlers, as well as others who directly affect commercial motor vehicle safety or security in the course of employment. OSHA explained that the Final Rule, issued and published in the Federal Register on July 27, 2012, implements amendments to the STAA made by the Implementing Recommendations of the 9/11 Commission Act of 2007 (the “9/11 Commission Act”), and also seeks to “clarify and improve OSHA’s procedures for handling STAA whistleblower claims, as well as to set forth interpretations of STAA.”  

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District Court Holds That Dodd-Frank’s Extension of Sarbanes-Oxley Whistleblower Protection to Employees of Subsidiaries of Public Companies Applies Retroactively

by Allen B. Roberts, Frank C. Morris, Jr., Stuart M. Gerson, and Michael J. Slocum

The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (“Dodd-Frank”) extended Sarbanes-Oxley’s whistleblower protection provision beyond employees of publicly-traded companies to reach the employees of their privately-held subsidiaries as well.  Reasoning that this extension was “a clarification of Congress’s intent with respect to the Sarbanes-Oxley whistleblower provision,” a federal court held that the extension applies retroactively to cover whistleblowers whose claims arise from events predating the Dodd-Frank amendments. Leshinsky v. Telvent GIT, S.A., No. 10-4511, (S.D.N.Y. July 9, 2012).

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District Court Holds That Dodd-Frank Whistleblower Protection Does Not Have Extraterritorial Reach–Longstanding Presumption Against Extraterritoriality May Also Apply to Other Statutes

by Allen B. Roberts and Michael J. Slocum

Global whistleblowers cannot look to the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (“Dodd-Frank”) for protection against retaliation, according to a recent federal court decision.  Taking an important step towards clarifying the reach of Dodd-Frank, and potentially impacting other statutes having similar provisions, the court ruled that the “Anti-Retaliation Provision” protecting whistleblowers under Dodd-Frank does not apply outside the territorial United States. Asadi v. G.E. Energy (USA), LLC, No. 12-345 (S.D. Tex. June 28, 2012).

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District Court Holds That Dodd-Frank Whistleblower Protection Does Not Have Extraterritorial Reach–Longstanding Presumption Against Extraterritoriality May Also Apply to Other Statutes

by Allen B. Roberts and Michael J. Slocum

Global whistleblowers cannot look to the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (“Dodd-Frank”) for protection against retaliation, according to a recent federal court decision.  Taking an important step towards clarifying the reach of Dodd-Frank, and potentially impacting other statutes having similar provisions, the court ruled that the “Anti-Retaliation Provision” protecting whistleblowers under Dodd-Frank does not apply outside the territorial United States. Asadi v. G.E. Energy (USA), LLC, No. 12-345 (S.D. Tex. June 28, 2012).

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Sarbanes-Oxley Whistleblower Coverage Expanded by Department of Labor to Private Firms Serving Publicly Traded Companies – Accountants, Lawyers, Consultants, and Advisors, Beware!

by Frank C. Morris, Jr., and Allen B. Roberts

The U.S. Department of Labor (“DOL”) Administrative Review Board (“ARB”) has sounded an alarm that needs to be heard by accounting firms, law firms, and other consultants, advisors, and providers of services to publicly traded companies.  With its recent decision in Spinner v. David Landau & Associates, LLC, ARB Case Nos. 10-111, 10-115 (May 31, 2012), the ARB continued its expansion of whistleblower protection, holding that Sarbanes-Oxley (“SOX”) whistleblower protections extend to employees of privately held businesses that merely contract with publicly traded companies.  The ARB’s decision significantly expands the number and type of organizations whose employees it says are covered by SOX whistleblower protections.  But the result was accomplished by direct rejection of the opposite conclusion reached by the U.S. Court of Appeals for the First Circuit in its well-reasoned recent decision in Lawson v. FMR LLC, 670 F.3d 61 (1st Cir. 2012).  While this is not the first instance of contrasting administrative and judicial interpretations of the definition and reach of SOX protections, it clearly indicates the current climate in which a wide swath of employers need to reassess their compliance programs, provisions for receipt of whistleblower reports, and procedures for addressing claims and avoiding retaliation.

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