The SEC’s Office of the Whistleblower (“OWB”) released its Fiscal Year 2019 Annual Report (the “Report”) to Congress on the Dodd-Frank Whistleblower Program on November 15, 2019. The Report analyzes the tips received over the last twelve months by the OWB, provides additional information about the whistleblower awards to date, and discusses the OWB’s efforts to combat retaliation and other actions that muzzle whistleblowers. To date, the SEC has recovered over $2 billion in total monetary sanctions from its enforcement actions arising from whistleblower tips, including more than $1 billion in disgorgement of ill-gotten gains and interests, and it has or is scheduled to return almost $500 million to harmed investors. READ MORE
Mike litigates "bet the farm"-style class and collective actions and provides cost-effective solutions to clients with the company's overall business model in mind.
Lawsuits can undermine business strategy. Mike understands this and approaches legal solutions with a sensitivity towards how litigation may impact the client's overall business goals. He applies a creative approach in advising clients in several industries, including tech, finance, and retail.
Currently, Mike is defending a tech giant in a major class action alleging disparate impact based on gender. His involvement includes addressing novel privilege issues, strategizing eDiscovery solutions, and positioning the client for opposition to class certification. Besides litigation experience, Mike also counsels clients regarding OFCCP investigations, wage and hour compliance, and cross border human resources issues. He is also a member of the firm's Whistleblower Task Force and Blockchain Working Group. In 2017, Mike was awarded Orrick's Community Responsibility Award for his involvement with several local service projects.
Mike graduated with honors from The Ohio State University College of Law, where he was also awarded the Public Service Fellow distinction, received several CALI Excellence for the Future Awards, and competed as a member of Ohio State's National Moot Court Team. He received his undergraduate degree from Westminster College, magna cum laude, where he now serves on the College's Alumni Council.
Posts by: Michael Disotell
California Governor Gavin Newsom recently signed into law SB 142, significantly expanding employers’ obligations to provide break time and lactation room accommodations for working mothers. Following in the footsteps of San Francisco’s Lactation in the Workplace Ordinance, SB 142 imposes a host of new requirements regarding lactation accommodation spaces, policies, and break time: READ MORE
The U.S. Securities Exchange Commission (“SEC”) and Commodity Futures Trading Commission (“CFTC”) administer whistleblower claims under the Sarbanes-Oxley Act of 2002. While the SEC has jurisdiction to regulate U.S. securities markets, the CFTC regulates the U.S. derivatives markets, which includes futures, swaps, and certain types of option contracts. In October, the CFTC’s Whistleblower Office (“WBO”) released its 2019 Annual Report (the “Report”) to two congressional subcommittees to provide insights into its whistleblower program and customer education initiatives. The Report provides an overview of the tips received by the WBO from October 1, 2018-September 30, 2019 (the “reporting period”), highlights several of the whistleblower awards from the past year, and discusses the WBO’s efforts to educate stakeholders about its whistleblower program. READ MORE
On September 24, 2019, the U.S. Department of Labor (DOL) announced its final rule updating the earnings thresholds necessary to exempt executive, administrative, and professional employees from the Fair Labor Standards Act’s (FLSA) minimum wage and overtime pay requirements. According to the DOL’s press release, “[t]he increases to the salary thresholds are long overdue in light of wage and salary growth since 2004,” and the DOL estimates that 1.3 million additional workers will be entitled to minimum wage and overtime pay as a result of the new regulations. READ MORE
On May 6th, the Commodity Futures Trading Commission (“CFTC”) announced that it made a whistleblower award of approximately $1.5 million to an individual whistleblower. The individual provided information that assisted in the successful prosecution of a CFTC action and a related action brought by another federal regulator. In particular, the CFTC recognized that the whistleblower initially sought to report his or her concerns internally prior to reporting to the CFTC, and it enhanced the individual’s award as an incentive.
In making the announcement, the Director of CFTC’s Whistleblower Office Christopher Ehrman explained, “While there is no requirement that a whistleblower report internally before approaching the Commission, today’s award demonstrates that the Commission may pay enhanced awards to those that do – that is one of the positive factors set out in our rules for the Commission to consider in making its award determination.” Furthermore, the CFTC recognized that the information the claimant provided “was directly incorporated into strategy involving witness interviews, and his/her early assistance saved Commission resources through his/her explanation of a complex scheme.”
Since the beginning of the CFTC’s whistleblower program in 2014, the agency has awarded more than $85 million to whistleblowers.
In February, the Internal Revenue Service (IRS) released its FY 2018 Annual Report and announced a record-breaking year for the agency’s whistleblower program. Overall, whistleblowers provided information that contributed to the agency’s recovery of over $1.44 billion during the course of the year. As a result, the IRS awarded $312 million in bounty awards to whistleblowers in FY2018, an almost ten-fold increase from the $33.9 million in awards it made in FY2017. Of the 217 total awards the agency made to whistleblowers in FY 2018, 31 were mandatory awards under Internal Revenue Code section 7623(b) and 186 were discretionary awards under section 7623(a) (which applies to smaller cases). The average award percentage from the total amount collected was 21.7% – up from 16.6% in FY 2016 and 17.8% in FY 2017. READ MORE
The U.S. Commodity Futures Trading Commission (CFTC) announced earlier this month that it had awarded more than $2 million to an individual who provided “critical information through independent analysis of market data” contributing both to a successful CFTC action and related action brought by another federal regulator. The payout is the first of its kind for the CFTC because it is the first time the agency has awarded a whistleblower who was a company outsider. READ MORE
In April 2018, an en banc Ninth Circuit held in Rizo v. Yovino that an employer cannot justify a wage differential between male and female employees under the Equal Pay Act by relying on prior salary. Before the Ninth Circuit published its decision, though, Judge Stephen Reinhardt passed away. On February 25th, the U.S. Supreme Court vacated the Ninth Circuit’s decision, reasoning that the appellate court should not have counted Reinhardt’s vote because he passed away before the decision was issued. Instead, the Ninth Circuit should not have released the opinion. READ MORE
As part of its effort to close gender-based pay gaps, California will now require companies to increase female representation on boards of directors.
Currently, one in four publicly held corporations in California have no women on their boards of directors. SB 826, which Governor Jerry Brown signed into law at the end of September, requires that all publicly held corporations based in California have at least one woman director by December 31, 2019. That is not the end of the requirements; by December 31, 2021, companies with five authorized directors must have a minimum of two female board members, and companies with at least six directors must have a minimum of three females on the board. The California Secretary of State will publish the names of compliant and non-compliant companies on an annual basis. In addition to the “name and shame” provisions, non-compliant companies face fines of $100,000 for the first violation and $300,000 for subsequent violations.
The sponsors of the bill, Sens. Hannah-Beth Jackson (D-Santa Barbara) and Toni Atkins (D-San Diego), stated when introducing the bill: “More women directors serving on boards of directors of publicly held corporations will boost the California economy, improve opportunities for women in the workplace, and protect California taxpayers, shareholders, and retirees. . . . Yet studies predict that it will take 40 or 50 years to achieve gender parity, if something is not done proactively.” The bill cites numerous independent studies stating that publicly held companies perform better in terms of profitability, productivity, and workforce engagement when women serve on their boards of directors. It follows the lead of Germany, France, Spain, Norway, and the Netherlands that have addressed the lack of gender diversity on corporate boards by instituting quotas requiring 30 to 40 percent of seats be held by female directors.
Gov. Brown noted in his signing letter that corporations have been considered “persons” for more than a century, so they should reflect the “persons” who make up America as a result. The California Chamber of Commerce and a coalition of other businesses opposed the bill and argued that the mandate is unconstitutional and a violation of California’s civil rights statutes. While Gov. Brown acknowledged that the law could face legal challenges, he noted that “recent events . . . make it crystal clear that many are not getting the message.” Therefore, he felt signing the bill into law was a necessary measure. No lawsuits have yet been filed.
In the meantime, California-based publicly held companies should act promptly to ensure that their boards of directors include the number of women directors needed to comply with the statute.
Just over two years ago, after the passing of Justice Antonin Scalia but before the confirmation of Justice Neil Gorsuch, the U.S. Supreme Court deadlocked in a 4-4 tie over whether unions could require non-members to pay “fair share fees.” The case challenged the Supreme Court’s 1977 Abood v. Detroit Board of Education precedent that allowed public sector unions to force non-union members to pay fees covering the cost of collective bargaining so long as the workers were not made to pay for a union’s political or ideological activities.
Recently, in Janus v. AFSCME, the Supreme Court returned to the issue. Ultimately, the Court held that allowing public sector unions to require non-union workers to pay fair share fees violates workers’ First Amendment rights, thereby overturning the Abood precedent.