Image of Sarbanes-Oxley Whistleblower Obtains $2.7M in Front Pay

Sarbanes-Oxley Whistleblower Obtains $2.7M in Front Pay

SOX Whistleblower Wins at Trial

A federal jury awarded $1.6 million in compensatory damages to Julio Perez in a Sarbanes-Oxley whistleblower retaliation lawsuit.  Following extensive post-trial briefing, Judge Loretta Preska issued a decision on August 30, 2016 awarding Dr. Perez $2,706,585.00 in front pay and denying defendant Progenics Pharmaceutical’s motion for a new trial.

Read more about this case in Corporate Counsel’s article How to Help a Whistleblower.

If you have suffered retaliation for whistleblowing, contact us at 202-262-8959 to schedule a free confidential preliminary consultation.

Front Pay Can Be Awarded Until Retirement Age

Prevailing SOX whistleblowers are entitled to reinstatement.  But where reinstatement is not feasible, a court can order the employer to pay front pay in lieu of reinstatement. The court found that it was not feasible for Dr. Perez to return to work because there was “manifest hostility” between Dr. Perez and Progenics.  Indeed, at trial, Progenics’ CEO was “condescending, contemptuous, and patronizing” to Dr. Perez.

Dr. Perez asserted that his front pay should consist of earnings from his age at the time of the verdict, 58 years and 2 months, until a reasonable retirement age of 66 years and 6 months.  Progenics, however, contended that Dr. Perez’s calculation of front pay was speculative.

The court credited Dr. Perez’s testimony that he made a good-faith effort to find comparable work for over seven years and that “his prospects for future employment are unpromising in part due to Defendant’s violations of his rights.”  Accordingly, the court adopted Dr. Perez’s calculation of front pay in the amount of $2,706,585.00.  Judge Preska cited the Second Circuit’s decision in Whittlesey v. Union Carbide Corp., 742 F.2d 724, 729 (2d Cir.1984), an age discrimination case holding that when calculating front pay, the Court should “assume, absent evidence to the contrary, that the illegally discharged employee would have continued working for the employer until he or she reached normal retirement age.”

Judge Preska’s decision to award front pay through retirement age soundly reflects the reality that corporate whistleblowers often encounter substantial challenges finding comparable work and suffer significant reputational harm.

Sarbanes Oxley Whistleblower Damages

Though the whistleblower protection provision of SOX does not authorize an award of punitive damages, a SOX whistleblower can recover “all relief necessary to make the employee whole,” including reinstatement, back pay, attorney’s fees, and costs. 18 U.S.C. § 1514A(c).  “Special damages” include damages for impairment of reputation, personal humiliation, mental anguish and suffering, and other noneconomic harm resulting from retaliation.  In contrast to Title VII of the Civil Rights Act, there is no cap on an award of special damages or non-economic damages under SOX.

A recent verdict demonstrates that SOX special damages can be substantial.  In March 2014, a California jury awarded $6 million to Catherine Zulfer in her SOX whistleblower retaliation case against Playboy, Inc. (“Playboy”).  Zulfer, a former accounting executive, alleged that Playboy had terminated her in retaliation for raising concerns about executive bonuses to Playboy’s chief financial officer (“CFO”) and chief compliance officer (“CCO”). She contended that she had been instructed by Playboy’s CFO to set aside $1 million for executive bonuses that had not been approved by the board of directors.  Zulfer refused to carry out this instruction, warning Playboy’s General Counsel that the bonuses were contrary to Playboy’s internal controls over financial reporting.  Shortly after Zulfer’s disclosure, the CFO retaliated by ostracizing Zulfer, excluding her from meetings, forcing her to take on additional duties, and eventually terminating her employment. At trial, a jury awarded Zulfer $6 million in compensatory damages.

Whistleblower’s Guide to Sarbanes-Oxley Whistleblower Retaliation Law

The whistleblower protection provision of the Sarbanes-Oxley Act provides robust protection to corporate whistleblowers, and indeed some SOX whistleblowers have achieved substantial recoveries.  For example, a former in-house counsel at a biotechnology company recovered $11 million in a SOX whistleblower retaliation case alleging that the company fired him for disclosing violations of the Foreign Corrupt Practices Act.

On the fifteenth anniversary of SOX, leading whistleblower law firm Zuckerman Law released a free guide to the SOX whistleblower protection law: “Sarbanes-Oxley Whistleblower Protection: Robust Protection for Corporate Whistleblowers.”  The guide summarizes SOX whistleblower protections and offers concrete tips for corporate whistleblowers based on lessons learned during years of litigating SOX whistleblower cases.

The goal of the guide is to arm corporate whistleblowers with the knowledge to effectively combat whistleblower retaliation, avoid the pitfalls that can weaken a SOX whistleblower case, and formulate an effective strategy to obtain the maximum recovery.

Download our free guide to the Sarbanes-Oxley whistleblower protection law:

SOX whistleblower protection

Experienced Sarbanes-Oxley Whistleblower Protection Attorneys

best sexual harassment attorneys Washington DC Maryland VirginiaThe whistleblower lawyers at Zuckerman Law have substantial experience litigating Sarbanes Oxley whistleblower retaliation claims and have achieved substantial recoveries for officers, executives, accountants, auditors, and other senior professionals.  To learn more about corporate whistleblower protections, see our Sarbanes-Oxley Whistleblower Protection FAQ.  Click here to read client testimonials about the firm’s work in SOX whistleblower matters and other employment-related litigation.

To schedule a free preliminary consultation, click here or call us at 202-262-8959.

Leading whistleblower law firm Zuckerman Law has written extensively about whistleblower protections and is quoted frequently in the media on this topic. A sample of those blog posts and articles appears below:

 

sarbanes whistleblower lawyers

Avatar of Jason Zuckerman

Jason Zuckerman, Principal of Zuckerman Law, litigates whistleblower retaliation, qui tam, wrongful discharge, and other employment-related claims. He is rated 10 out of 10 by Avvo, was recognized by Washingtonian magazine as a “Top Whistleblower Lawyer” in 2015 and selected by his peers to be included in The Best Lawyers in America® and in SuperLawyers.