Yesterday, in Lawson v. FMR LLC, a divided U.S. Supreme Court decided its first case addressing the whistleblower protections of the Sarbanes-Oxley Act (SOX). The question before the Court: do those protections extend only to the employees of public companies, or do they also reach the employees of contractors and subcontractors of public companies? You can see our prior posts on the case here (June 19, 2012), here (October 8, 2013), here (January 7, 2014), and here (January 28, 2014). Read More
Mike Delikat, a partner in the New York office, serves as Chair of Orrick’s Global Employment Law Practice and previously served as the Managing Director of Orrick’s Litigation Division.
Orrick’s Employment Law and Litigation group was recently named Labor & Employment Department of the Year in California by The Recorder, the premier source for legal news, in recognition of their significant wins on behalf of leading multinational companies on today’s most complex and challenging employment law matters.
He represents a broad range of major corporations in all facets of labor and employment law. Mr. Delikat has an active trial, arbitration and appellate practice and handles a number of high-visibility class action and impact cases. Mr. Delikat has extensive experience with issues arising from trade secret misappropriation and the enforcement of post-employment restrictions, wage-and-hour collective actions and other class actions based on gender and race, with particular expertise representing companies in the financial services industry. He is also called upon by a number of major corporations to handle high exposure internal investigations.
He currently has an active practice representing a number of major corporations in the defense of Sarbanes-Oxley Act and other whistleblower claims and is the co-author of the only extensive treatise published on whistleblowing and internal investigations, Corporate Whistleblowing in the Sarbanes-Oxley/Dodd-Frank Era.
- AllianceBernstein. Mr. Delikat has represented this client on multiple matters in court and in arbitration.
- Facebook. Mr. Delikat leads a global team that represents Facebook on all of its employment law matters throughout the world.
- PG&E Corporation. Mr. Delikat obtained a complete defense verdict in a jury trial brought in the Maryland state court seeking to hold PG&E liable for multi-million dollar bonuses claimed by energy traders.
- JP Morgan Chase. Mr. Delikat has represented this client on a variety of employment litigation matters including the enforcement of post-employment restrictions involving litigation in the United States and the United Kingdom.
- Carrols Corporation. Mr. Delikat successfully represented Carrols Corporation, the largest holder of Burger King franchises, in obtaining summary judgment against the EEOC after six years of litigation in the largest pattern and practice class action for sexual harassment ever brought by the EEOC in EEOC v. Carrols.
- Securities Industry and Financial Markets Association. This client regularly looks to Mr. Delikat for representation in filing amicus briefs on issues of paramount importance to SIFMA and its members.
- AIG Corporation. The Board of Directors of this company retained Mr. Delikat to conduct a high profile internal investigation of one of its senior executives.
- Wyeth/Pfizer. Mr. Delikat successfully defended Wyeth in a two-week jury trial in federal court alleging race discrimination at its Pearl River facility. He also represented this client on several Sarbanes-Oxley whistleblower matters, including Livingston v. Wyeth, which was the first U.S. Court of Appeals decision on what constitutes protected activity under the whistleblower provisions of SOX.
- Oracle. Mr. Delikat represented Oracle in multiple litigations, including a preliminary injunction trial involving efforts by a competitor to its enforce non-compete agreements.
- Roche. Mr. Delikat successfully represented Roche in several wage-and-hour collective actions which challenged the classification of pharmaceutical representatives as exempt from the overtime provisions of the Fair Labor Standards Act.
- Moody’s Investors Service. Mr. Delikat defended Moody's in a 400-plaintiff Title VII class action in the Southern District of New York alleging race and national origin discrimination in promotion.
- Major Law Firm Representation. Mr. Delikat represents a number of major law firms on a variety of matters relating to their partners, associates and staff.
Mr. Delikat is published and quoted frequently on a variety of employment law issues in major academic and business publications and is a frequent speaker at national and international programs.
Joining the ever growing list of opinions on the arbitrability of class claims, an NLRB Administrative Law Judge recently ruled that an arbitration agreement that did not expressly bar workers from bringing class or collective actions still violated federal labor law because the employer’s steps taken to enforce the agreement in court had the practical effect of doing so. Read More
Two new Dodd-Frank decisions over the last week contain mixed results for employers. Read More
October 2013, the San Francisco Board of Supervisors unanimously approved the “Family Friendly Workplace Ordinance,” which if signed by the mayor will expand protections for workers with family care-giving duties and require employers to take requests for flexible work arrangements seriously. The measure creates a new, “only in San Francisco” protected category of workers that employers will likely have to keep in mind when making workplace decisions, as Mayor Ed Lee has indicated his intention to sign the measure into law. Read More
Two victories for employers last week in Dodd-Frank and SOX whistleblower cases may provide a basis for at least a sliver of optimism among employers and whistleblower defense lawyers hammered by a recent series of employee-favorable decisions under the two main federal statutes covering whistleblowing activity. Read More
Today the SEC announced that it is issuing a whistleblower award of over $14 million to a whistleblower who provided information that resulted in the recovery of investor funds. The significant whistleblower award comes after many critics have questioned the success of the SEC’s whistleblower award program which, to date, has only issued two much smaller awards since the program’s inception in 2011. The first award payment was issued in August 2012 for approximately $50,000. The second award, paid to three whistleblowers for information that stopped a sham hedge fund, has paid out approximately $25,000 with an expected total payout of $125,000. Read More
Employers frequently ask whether the portion of an employment-related settlement allocated to attorneys’ fees must be treated as wages and subjected to income and employment tax withholding and Form W-2 reporting where a plaintiff’s claim is based on statute that provides for the recovery of attorneys’ fees (a so-called “fee-shifting statute”). The answer was not entirely clear based on conflicting guidance from the IRS. Fortunately the IRS recently confirmed its view in LAFA 20133501F (July 11, 2013) that where a plaintiff’s claim is based on a fee-shifting statute, the amount of the settlement that is clearly allocated to attorneys’ fees and that is reasonable in amount is not wages for employment tax purposes. Read More
A whistleblower who took sensitive company data from his employer and turned it over to the IRS has won his retaliation claim at the Department of Labor under the Sarbanes-Oxley Act’s (“SOX”) whistleblower protection provisions. In Vannoy v. Celanese Corp., ALJ Case No. 2008-SOX-00064, ARB Case No. 09-118 (ALJ July 24, 2013), an Administrative Law Judge was presented with the question of whether Vannoy’s removal of highly sensitive company data and transmission of that data to the IRS constituted protected activity under SOX. Vannoy, who was formerly employed as the administrator of Celanese’s corporate credit card program, first allegedly complained internally that the company “misstated their financial records and underestimated their required tax burden potentially in millions.” Vannoy sought legal counsel and eventually reported the company’s alleged accounting misconduct to the IRS. Read More