Playboy Enterprises is suing its former defense counsel Sheppard Mullin after being hit with a $6 million jury verdict in a SOX whistleblower case, the highest jury award in a SOX case to date. In Zulfer v. Playboy Enterprises, Inc., Playboy’s former Controller Catherine Zulfer claimed her employment was terminated in part because she objected to an improper instruction by Playboy’s CFO to accrue $1 million in discretionary bonuses for executives when those bonuses had not been approved by Playboy’s Board. A jury agreed and found that Playboy unlawfully retaliated against Zulfer by firing her for her protected reports under SOX and also terminated her employment in violation of public policy under California law. The jury awarded $6 million in unspecified damages with no allocation between the SOX claim and the California wrongful termination claim.
Mike Delikat, a partner in the New York office, serves as Chair of Orrick’s Global Employment Law Practice, which has employment law teams in the European Union, Asia as well as the United States. He also is the founder of the firm’s Whistleblower Task Force. He previously served as the Managing Director of Orrick’s Litigation Division.
Under Mr. Delikat’s leadership, Orrick’s Employment Law & 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. The practice group has also been chosen as one of the top national employment law practices by Law 360.
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 litigation arising from trade secret misappropriation and the enforcement of post-employment restrictions, EEOC systemic investigations and litigations, 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 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 coauthor of the only extensive treatise published on whistleblowing and internal investigations, Corporate Whistleblowing in the Sarbanes-Oxley/Dodd-Frank Era. He is regularly retained by boards of directors and audit committees to conduct high exposure internal investigations of corporate wrongdoing.
- AllianceBernstein. Mr. Delikat has represented this client on multiple matters in court and in arbitration, including a successful defense of an ERISA class action.
- Facebook. Mr. Delikat created a single contact point solution for all of this client’s employment law needs outside the United States, which now is managed through Orrick’s unique Global HR Solutions platform.
- 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 multimillion dollar bonuses claimed by energy traders.
- Carrols Corporation. Mr. Delikat successfully represented Carrols Corporation, the largest holder of Burger King franchises, in the largest pattern and practice systemic 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.
- Microsoft. Mr. Delikat regularly advises this client on matters involving the enforcement of post-employment restrictions and restrictive covenants.
- Citigroup. Mr. Delikat regularly represents this client on a variety of employment disputes.
- 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. Mr. Delikat successfully defended Wyeth in a two-week jury trial in federal court alleging race discrimination. He also represented this client on several Sarbanes-Oxley whistleblower matters, including the successful defense of Livingston v. Wyeth, which was the first U.S. Court of Appeals decision on what constitutes protected activity under the whistleblower provisions of SOX.
- Gannett/USA Today. Mr. Delikat has represented this client on a variety of post-employment restriction and trade secret litigation.
- Oracle. Mr. Delikat represented Oracle in multiple litigations, including a preliminary injunction trial involving efforts by a competitor to enforce its noncompete 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. He obtained a seminal decision in Weir v. Holland & Knight, which held that law firm partners are not covered by statutory discrimination protections.
- Time Warner, Inc. Mr. Delikat obtained summary judgment on behalf of this client in a discrimination case brought by an in-house lawyer, affirmed on appeal by the Second Circuit, establishing the standard for retaliation claims in that Circuit.
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.
In a much-anticipated move, the SEC on April 1, 2015 commenced a cease-and-desist action against KBR (formerly Kellogg Brown & Root) alleging its confidentiality agreements violated Dodd-Frank’s whistleblower regulations. KBR simultaneously agreed to settle the matter for $130,000. This is the first such case brought by the SEC, which had indicated over the last year or more that it was actively seeking examples of such alleged violations in order to enforce its Rule 21F-17, which provides, “No person may take any action to impede an individual from communicating directly with the Commission staff about a possible securities law violation, including enforcing, or threatening to enforce, a confidentiality agreement…” In unofficial comments, SEC staff had expressed the view that standard confidentiality and non-disparagement provisions found in many employer agreements might violate the Rule to the extent they did not have express carve-outs stating that nothing in those provisions prevented employees from going directly to the Commission with concerns.
On March 2, 2015, the SEC announced a whistleblower bounty award of between $475,000 and $575,000, its 15th under the Dodd-Frank whistleblower program. While the SEC’s order is scant on detail, it does disclose that the award will go to a corporate officer, making it the first award to go to an officer under the program. This award is in keeping with the SEC’s approach to demonstrate in the relatively small number of awards made to date that a broad range of individuals can get bounties for providing original information of corporate wrongdoing under Dodd-Frank.
The new California paid sick leave law is now “in effect” (as we reported here and here) and you are ramping up your HR and payroll team to get ready for July 1 when employees can start accruing sick leave under the law. But now that you’re digging into the details, you’re realizing that this isn’t as easy as you thought. Don’t worry, you’re not alone. There are a few subtleties to the sick leave law that are catching more than a few employers off guard. But fear not, here are some tips to help you implement your sick leave plan:
The SEC released its Fiscal Year 2014 Annual Report (the “Report”) to Congress on the Dodd-Frank Whistleblower Program on November 18, 2014. The Report analyzes the tips received over the last twelve months by the SEC’s Office of the Whistleblower (“OWB”), provides additional information about the whistleblower awards to date, and discusses the Office’s efforts to combat retaliation against whistleblowers.
On November 12, 2014, the Fifth Circuit affirmed a Department of Labor finding that Halliburton retaliated against a whistleblower by including his name in a document preservation notice. The court also held that emotional distress damages are available under SOX.
In Halliburton, Inc. v. Administrative Review Board, the whistleblower, Anthony Menendez, claimed that he was ostracized and isolated in violation of SOX after Halliburton’s General Counsel sent out a litigation hold notice stating that the SEC had opened an investigation into concerns raised by Menendez about alleged accounting improprieties. Menendez had previously raised these concerns internally to management.
On October 7th, a federal district judge granted summary judgment against the U.S. Equal Employment Opportunity Commission (EEOC) in its lawsuit against CVS. The EEOC had challenged the nation’s largest integrated provider of prescriptions and health-related services for its employee separation agreement. The EEOC’s Chicago office had filed the suit in February, alleging the company’s separation agreement violated its employees’ Title VII rights to communicate with the EEOC and file discrimination charges. Read More
On September 22, 2014, the SEC announced its largest whistleblower award to date under its Dodd-Frank whistleblower bounty program. It awarded $30-$35 million to an anonymous whistleblower who the Commission said provided original information about an ongoing fraud that would otherwise have been difficult to detect. That information led to the successful enforcement of an SEC action as well as unspecified related actions. The SEC stated that the whistleblower’s award would have been even higher if he/she had not unreasonably delayed in coming forward, though the agency did not apply the unreasonable delay consideration as severely as it otherwise would have because some of the delay occurred before the whistleblower program’s inception.
OSHA’s Whistleblower Protection Advisory Committee (“WPAC”) met on September 3-4, 2014. David Michaels, Assistant Secretary of Labor, OSHA, addressed the Committee and discussed recent results and initiatives of OSHA’s whistleblower program. Some highlights:
Last week, in Liu v. Siemens, AG, the Second Circuit held that the Dodd-Frank Act’s whistleblower retaliation provision (15 U.S.C. 78u-6(h)(1)) does not apply extraterritorially, in the first Second Circuit decision to address the international scope of Dodd-Frank’s whistleblower protections against retaliation. Liu, a citizen and resident of Taiwan, was a compliance officer for Siemens China Ltd., a wholly owned subsidiary of Siemens AG. Siemens AG is a German corporation with shares listed on the New York Stock Exchange. Liu claimed Siemens wrongfully terminated his employment in retaliation for reporting that Siemens China Ltd. employees were making improper payments to Chinese officials in North Korea and China in connection with the sale of medical equipment in those countries, in violation of the Foreign Corrupt Practices Act (“FCPA”).