Mike Delikat

Partner
Employment Law
Read full biography at www.orrick.com

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.

Representative clients:

  • 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.

Mike Delikat

Financial Services and Technology Companies Beware: The U.S. Office of Federal Contract Compliance Has A Target on Your Back

The President released his 2017 budget this week. Budgets are aspirational documents that Congress rarely implements in full. The current acrimony between Congress and the Administration ensures that the President’s 2017 budget will likely remain aspirational. However, Presidential budgets and their accompanying justifications can shed light on an agency’s priorities.

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Where Have You Gone Dennis Kozlowski? Third Circuit Dismisses Tyco Employee’s Whistleblower Claim Over Excessive Corporate Spending

On February 2, 2016, the Third Circuit affirmed the dismissal of a long-running SOX whistleblower suit filed by Jeffrey Wiest, a former accounts payable manager for Tyco Electronics.  The decision is the first in which the Third Circuit has defined the “contributing factor” causation standard for SOX retaliation cases and provides helpful guidance on the issue.

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Not So Final WARNing: Sixth Circuit Finds That Employment Ends with Termination of Wages, Not Notice

In Morton v. Vanderbilt Univ., 2016 WL 52439 (6th Cir. Jan. 5, 2016), the Sixth Circuit recently held that, for purposes of the Worker Adjustment and Retraining Notification Act (“WARN Act”), employment does not end at notice of termination, but rather the employment relationship continues as long as the employee continues to be paid wages and accrue benefits.

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For Whom The Whistle Blows:  SEC Whistleblower Office Issues Its 2015 Annual Report

The SEC released its Fiscal Year 2015 Annual Report (the “Report”) to Congress on the Dodd-Frank Whistleblower Program on November 16, 2015. 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 OWB’s efforts to combat retaliation against whistleblowers.

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Chief of SEC Whistleblower Office Shares Candid Assessment of Program’s Results to Date and Future Direction

On September 9, 2015, Sean McKessy, Chief of the SEC’s Office of the Whistleblower (OWB) spoke at Thomson Reuters’ 4th Annual Corporate Whistleblower Program in New York.  With the standard disclaimer that his comments and opinions were his own and not the official comments of the agency, McKessy spoke candidly about the SEC whistleblower program’s progress, challenges, and priorities as it enters FY2016.

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D.C. Circuit Confirms: Attorney-Client Privilege Applies to Internal Investigations of Whistleblower Complaints Conducted at the Direction of Counsel

The ability to preserve privilege for highly sensitive internal investigations conducted at the direction of attorneys is alive and well.  In a closely watched decision on the scope of the attorney-client privilege as applied to internal investigations, the D.C. Circuit granted defense contractor Kellogg Brown & Root’s (“KBR”) petition for a writ of mandamus and vacated a district court’s order that privileged documents from an internal investigation must be produced.

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SEC Guidance Supports its Position That Internal Whistleblowers are Protected Under Dodd-Frank

On August 4, 2015 the Securities and Exchange Commission issued interpretive guidance elaborating its view that the anti-retaliation provisions in the Dodd-Frank Wall Street Reform and Consumer Protection Act apply equally to tipsters who claim retaliation after reporting internally, as well as those who are retaliated against after reporting information to the SEC.  The guidance reflects that there is a split among federal courts over whether Dodd-Frank’s whistleblower retaliation provisions apply to internal as well as external reporting, and recognizes that the only circuit court to decide the issue to date, the Fifth Circuit, has taken a contrary position to that of the Commission in Rule 21F, the regulation the SEC adopted to implement the whistleblower legislation, holding that internal reports are not protected by Dodd-Frank. Whether internal reports qualify for Dodd-Frank coverage has important implications because, among other things, Dodd Frank provides enhanced recoveries (including two times back pay) and longer time frames (six years) for bringing a retaliation claim than would be available under the anti-retaliation provisions in the Sarbanes-Oxley Act of 2002.

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Whistle While You Work: SEC Announces First Retaliation Whistleblower Award

On June 16, 2014, the SEC issued its first-ever charge of whistleblower retaliation under section 922 of the Dodd-Frank Act, charging a hedge fund advisor and its owner with “engaging in prohibited principal transactions and then retaliating against the employee who reported the trading activity to the SEC.”

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$6 Million Verdict for SOX Whistleblower Leads to Malpractice Suit Against Defense Counsel

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.

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