It’s All a Matter of Degree – Fourth Circuit Upholds Four-Year Front Pay Award and Tuition Reimbursement in SOX Case

*This post was drafted with contribution from Ashley Gambone, law clerk.

Affirming a SOX victory for an employee, the Fourth Circuit in a 2-1 decision in Gunther v. Deltek upheld a Department of Labor award of four-years of front pay to a former financial analyst of a software firm and also affirmed an award of tuition reimbursement for a four-year, full time, college degree program.  The Fourth Circuit’s Gunther decision discusses the standards for proving or disproving a causal connection in SOX cases, for meeting the after-acquired evidence standard to cut off damages, and for proving entitlement to front pay and other damages under SOX.

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Court-Sanctioned Employee Theft? Self-Help Discovery May Be Protected Activity In Discrimination Cases

Recently in Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., No. SJC-11901, 2015 WL 10937776 (Mass. May 31, 2016), the Supreme Judicial Court of Massachusetts held, as a matter of first impression, that self-help discovery “may in certain circumstances constitute protected activity” under the state anti-retaliation statute, provided that, “the employee’s actions are reasonable in the totality of the circumstances.”

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Bonus Points: ARB Upholds Whistleblower Order Challenging Bonus Plan

The Department of Labor’s Administrative Review Board (“ARB”) recently upheld an order finding a semiconductor company had constructively discharged a manager who complained the company’s bonus plan violated state wage and hour laws, and in doing so, broadly interpreted the protections offered under the Sarbanes-Oxley Act (“SOX” or “Act”).

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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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So You Want to Accept That Board Position? One More Reason to Pause: Directors Can Be Personally Liable Under Sarbanes-Oxley and Dodd-Frank

On October 23, 2015, in a suit filed by Bio-Rad’s former general counsel Sanford Wadler, the United States District Court for the Northern District of California issued a decision granting in part and denying in part Defendants’ motion to dismiss in Wadler v. Bio-Rad Labs, Inc. (No. 15-CV-02356-JCS, 2015 WL 6438670 (N.D. Cal. Oct. 23, 2015), holding, among other things, that corporate directors may be held personally liable for retaliating against a whistleblower under both the Sarbanes-Oxley Act of 2002 (SOX) and the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank).

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Sixth Circuit Affirms $250K Victory to SOX Whistleblower and Provides Broad Interpretation of SOX

On May 28, 2015, the Sixth Circuit in Rhinehimer v. U.S. Bancorp Investments, Inc. affirmed a $250,000 jury verdict in favor of a former financial advisor for U.S. Bancorp Investments (“USBII”) who alleged that he had been terminated in violation of the Sarbanes-Oxley Act (“SOX”) whistleblower provisions.  In doing so, the Sixth Circuit rejected the “definitively and specifically” standard for proving protected activity under SOX and abrogated its prior SOX decision in Riddle v. First Tennessee Bank Nat’l Assoc., 497 F. App’x 588 (6th Cir. 2012) to the extent it relied upon the standard.

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Third Circuit Issues First Appellate Decision Compelling Arbitration of Dodd-Frank Whistleblower Claim

In Khazin v. TD Ameritrade, No. 14-1689, 2014 WL 6871393 (3rd Cir. Dec. 8, 2014), the Third Circuit affirmed a lower court’s decision compelling arbitration of a Dodd-Frank whistleblower retaliation claim.  This is the first circuit court decision to address whether such claims are arbitrable, and the decision is consistent with two district court opinions that have previously addressed the issue

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No Good Deed Goes Unpunished: Document Preservation Notices Can Lead to SOX Violation!

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.

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OSHA’s Whistleblower Protection Advisory Committee Discusses Planning, New Initiatives

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:

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Second Circuit Holds Dodd-Frank Whistleblower Provision Does Not Apply Extraterritorially

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”).

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