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.
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.
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.
Banko v. Apple
In Banko v. Apple Inc., Case No. 3:13-cv-02977-RS, a Northern District of California judge dismissed a Dodd-Frank retaliation claim where the employee only made a complaint internally to management and never complained to the Securities and Exchange Commission (SEC). The court followed the reasoning of the Fifth Circuit in Asadi v. G.E. Energy (USA), L.L.C. (see Orrick’s prior blog post on Asadi) and rejected a broader interpretation of the Act adopted by four district courts and the SEC that Dodd-Frank covers internal reporting protected by the Sarbanes-Oxley Act (SOX) as well as reports to the SEC. 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
On July 17, 2013, the Fifth Circuit issued the first circuit court decision interpreting Dodd-Frank’s anti-retaliation provision. In Asadi v. G.E. Energy (USA), L.L.C., the Fifth Circuit held that, to be protected under Dodd-Frank’s anti-retaliation provision, an individual must be a “whistleblower,” which is defined by the statute as an individual who has made a report to the SEC. Notably, this holding directly conflicts with the SEC’s regulations interpreting the Act, as well as five district court decisions that had all held that employees who make internal reports to company management are protected under Dodd-Frank even if they did not make reports to the SEC.
Click here to read Orrick’s full client alert.
On November 15, 2012, the Securities and Exchange Commission released its Fiscal Year 2012 Annual Report on the Dodd-Frank Whistleblower Program (the “Report”), the first full-year report issued since the enactment of Dodd-Frank. The Report analyzes the 3,001 tips received over the last twelve months by the Commission’s Office of the Whistleblower (“OWB”) , which is responsible for the implementation and execution of the Commission’s whistleblower program. The Report also provides additional information on the whistleblower award evaluation process that resulted in its first (and only) award issuance in August 2012.
Activities of the Commission’s OWB
The OWB was created pursuant to Section 924(d) of the Dodd-Frank Act. OWB reviews and processes whistleblower tips through the Commission’s Tips, Complaints, and Referrals (“TCR”) System, leveraging resources of the Commission’s Office of Market Intelligence to evaluate tips and assign them to the appropriate division. OWB works closely with the Enforcement Division throughout the investigative process, serving as a liaison between the whistleblowers or their counsel and Enforcement staff. OWB arranges meetings between whistleblowers and investigators or subject matter experts within Enforcement to advance investigations. OWB also communicates with other agencies’ whistleblower offices, including the IRS, Department of Justice, Commodity Futures Trading Commission, and the Department of Labor’s OSHA. Read More
On August 21, 2012, the Securities and Exchange Commission (SEC) announced that it has awarded its first whistleblower bounty, just over one year after the SEC’s Dodd-Frank whistleblower rules became effective. The SEC’s Claims Review Staff issued a short order, Release No. 34-67698, granting the whistleblower’s award, which notes that the SEC declined to award a claim to a second whistleblower involved in the action.