Whistleblower Law Firm Publishes Sarbanes-Oxley Whistleblower Guide on 15th Anniversary of Sarbanes-Oxley Act

Call our top-rated SOX whistleblower lawyers today at 202-262-8959 for a free, confidential consultation.

On the fifteenth anniversary of the Sarbanes-Oxley Act (SOX), leading whistleblower law firm Zuckerman Law is releasing 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 more than a decade 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.

When Congress enacted SOX in 2002, it included a whistleblower protection provision to combat a “corporate code of silence,” which “discourage[d] employees from reporting fraudulent behavior not only to the proper authorities, such as the Federal Bureau of Investigation and the SEC, but even internally.”  Congress sought to empower whistleblowers to serve as an effective early warning system and help prevent corporate scandals.

Congressional hearings about the Enron scandal probed why such a massive fraud was not detected earlier.  The testimony and documents revealed that when employees of Enron and its accounting firm, Arthur Andersen, attempted to report corporate misconduct, they faced retaliation, including discharge.  And essentially no legal protection existed for whistleblowers, such as Sherron Watkins, who tried to stop the fraud.

Fifteen years after Congress enacted SOX, internal whistleblowers remain the best source of fraud detection.  For example, a 2016 survey performed by the Association of Certified Fraud Examiners found that employee tips are the most common method of fraud detection.  To illustrate, tips led to the initial detection of fraud in 39.1% of worldwide occupational fraud cases reviewed in the study.  Management review and internal audit ranked as a distant second and third.  Unfortunately, corporate whistleblowers continue to suffer retaliation, and, therefore, widespread fear of retaliation persists.  A survey performed by the Ethics Resource Center found that nearly half of employees observe misconduct each year, and one in five employees who reports misconduct perceives retaliation for doing so.

SOX provides robust protection to corporate whistleblowers, and indeed some SOX whistleblowers have achieved substantial recoveries.  Earlier this year, 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.

Corporate whistleblowers may also be eligible to receive a reward for providing original information that leads to successful SEC enforcement actions with total civil penalties exceeding $1 million. The whistleblower award may be between 10% and 30% of the monetary sanctions collected in actions by the SEC and other related regulatory or law-enforcement authorities.  Zuckerman Law recently published a guide to the program: SEC Whistleblower Program: Tips from SEC Whistleblower Attorneys to Maximize an SEC Whistleblower Award.

This guide to the SEC Whistleblower Program offers practical tips for whistleblowers and insights gained by the firm in representing whistleblowers before the SEC.  To learn more about the success of the program, read our column in Forbes: One Billion Reasons Why The SEC Whistleblower-Reward Program Is Effective.

To stay abreast of new developments under SOX and other whistleblower protection laws, subscribe to our Whistleblower Protection Law Blog.

The SOX whistleblower guide addresses the following topics:

WHISTLEBLOWERS PROTECTED BY THE SARBANES-OXLEY ACT

• Who is protected under SOX’s whistleblower-protection provision

ELEMENTS OF A SOX WHISTLEBLOWER RETALIATION CLAIM

• Can a whistleblower sue an individual under SOX?

PROTECTED WHISTLEBLOWING

• Is a SOX whistleblower required to prove shareholder fraud?
• Does SOX protect whistleblowing about potential violations of federal securities laws?
• Are SOX whistleblowers required to show that their disclosures relate “definitively and specifically” to a federal securities law?
• Does SOX-protected conduct require a showing of materiality?
• What are some types of proof to show that a disclosure is objectively reasonable?
• Are disclosures made in the course of performing one’s job duties protected?
• Is a whistleblower’s motive for engaging in protected activity relevant in a whistleblower-protection case?
• Does SOX protect disclosures about fraud on the government or gross mismanagement of a federal contract or grant?
• Are disclosures about consumer financial fraud protected under SOX?
• Is there some variation in how courts interpret the scope of SOX protected whistleblowing?

KNOWLEDGE OF PROTECTED CONDUCT

• Must a whistleblower prove that the individual who made the final decision to take the adverse action has personal knowledge of the whistleblower’s protected activity?

PROHIBITED WHISTLEBLOWER RETALIATION UNDER SOX

• What acts of retaliation are prohibited by the SOX whistleblower-protection provision?
• Is constructive discharge a prohibited act of retaliation under SOX?
• Does SOX prohibit employers from “outing” confidential whistleblowers?
• Does SOX prohibit post-termination retaliation?
• Is retaliation that occurred outside of the statute-of-limitations period relevant evidence of retaliation?

PROVING SOX WHISTLEBLOWER RETALIATION (CAUSATION)

• What is a whistleblower’s burden to prove retaliation under SOX?
• In a mixed-motive case (where there is evidence of both a lawful and unlawful motive for the adverse action), does the evidence of a legitimate justification for the adverse action negate the whistleblower’s evidence that whistleblowing partially influenced the decision to take the adverse action?
• Is a SOX whistleblower required to prove that the employer’s justification for the adverse action is false (otherwise known as pretext)?
• Is a SOX whistleblower required to prove that the employer had a retaliatory motive?
• Is close temporal proximity sufficient to establish causation?
• Does subjecting an employee to heightened scrutiny evidence retaliation?

EMPLOYER AFFIRMATIVE DEFENSE

• What is the employer’s evidentiary burden in a SOX whistleblower-retaliation case?

DAMAGES

• What damages can a whistleblower recover under SOX?
• If reinstatement is not feasible, can a judge award front pay in lieu of reinstatement?
• Does SOX authorize an award of punitive damages?

LITIGATING SOX WHISTLEBLOWER CLAIMS

• Who administers the whistleblower-protection provision of SOX?
• What is the statute of limitations for a SOX whistleblower-retaliation case?
• What level of detail is required in a SOX complaint?
• Where can a whistleblower file a SOX retaliation complaint?
• Do mandatory arbitration agreements encompass SOX whistleblower claims?
• Can OSHA order reinstatement of a SOX whistleblower?
• Where are SOX whistleblower cases litigated?
• How can a SOX whistleblower appeal an ALJ’s decision?
• If a SOX whistleblower prevails before the ALJ, can they appeal part of the ALJ’s decision?
• Where can a SOX whistleblower appeal an ARB decision?
• Can a SOX whistleblower bring a retaliation case in federal court?
• Is there a time limit for filing a SOX complaint in federal court after removing the claim from the Department of Labor?
• Does the SOX Act authorize jury trials?
• What is the scope of discovery in a SOX whistleblower case?
• Do formal rules of evidence apply in SOX whistleblower trials at the Department of Labor?
• Does Section 806 of SOX preempt other claims or remedies?

Contact Our Top-Rated Sarbanes-Oxley Whistleblower Attorneys

The whistleblower lawyers at Zuckerman Law have substantial experience litigating Sarbanes Oxley whistleblower retaliation claims, and have obtained substantial recoveries for officers, executives, accountants, auditors, and other senior professionals.

 

 

Leading whistleblower law firm Zuckerman Law writes extensively about whistleblower protections and is quoted frequently in the media on this topic. Below is a sample of those blog posts and articles:

• Sarbanes-Oxley 15 Years Later: Accountants Need to Speak Up Now More Than Ever
• Sarbanes Oxley Whistleblower Win Shows Strong Need For Whistleblower Protections
• DOL Adopts Strengthened Sarbanes-Oxley Whistleblower Regulations
• Jury Awards Former Bio-Rad Counsel $11M in Sarbanes-Oxley Whistleblower Case
• Sarbanes-Oxley Whistleblower Decision Clarifies Broad Scope of Protected Whistleblowing
• Decision Denying Motion for Summary Judgment Broadly Construes Sarbanes-Oxley Protected Whistleblowing
• Sarbanes-Oxley Protects Disclosures About Inadequate Information Security Controls
• Jury Awards Six Million Dollars to Whistleblower in Sarbanes-Oxley Case
• Sarbanes-Oxley Authorizes Damages for Reputational Harm
• OSHA Orders Bank to Reinstate Sarbanes-Oxley Whistleblower
• Sarbanes-Oxley Whistleblower Prevails on Appeal
• Sarbanes-Oxley Whistleblower Obtains $2.7M in Front Pay
• SOX Whistleblower Decision Adopts Favorable Pleading Standard for Whistleblowers
• OSHA Orders Wells Fargo to Pay $5.4M to Whistleblower
• District Court Rejects Materiality Requirement for Sarbanes-Oxley Whistleblower Actions
• Whistleblowing Fraud Investigator Defeats Motion to Dismiss Sarbanes-Oxley Whistleblower Case
• Third Circuit Decision Highlights Key Procedural Distinctions Between Sarbanes-Oxley and Dodd-Frank Whistleblower Protection Provisions
• Federal Courts Are Adopting the Administrative Review Board’s Broad Interpretation of Sarbanes-Oxley Protected Conduct
• Are cybersecurity whistleblowers protected against retaliation?
• Court Rules that Whistleblowers Can Use Confidential Company Documents to Expose Fraud
• Fifth Circuit Holds that “Outing” a Whistleblower is an Adverse Action Under SOX
• Court Rules for In-House Counsel Whistleblower
• Leading SEC Whistleblower Law Firm Featured in Article About Growing Wave of Whistleblower Lawsuits
• Pro Se Sarbanes Oxley Whistleblower Prevails in Jury Trial
• Whistleblower Lawyer Interviewed About Dodd-Frank Whistleblower Protection Provision
• A Wells Fargo whistleblower warned about fake accounts in 2011 — nobody from the government ever spoke with her
• Whistleblower Lawyer Dallas Hammer Quoted About Cybersecurity Whistleblowing
• Tax Notes Quotes Whistleblower Lawyer Zuckerman About SOX Whistleblower Case
• Article Reports on Petition to Strengthen Whistleblower Rights
• Whistleblower Lawyer Zuckerman Quoted About OSHA Whistleblower Investigations
• Whistleblower Lawyer Quoted About Sarbanes-Oxley Whistleblower Development
• Whistleblower Lawyer Jason Zuckerman Quoted About Sarbanes-Oxley Whistleblower Protection
• Forbes Quotes Whistleblower Attorney Jason Zuckerman About Self-Help Discovery in Whistleblower Litigation
• Federal Courts Are Adopting the Administrative Review Board’s Broad Interpretation of Sarbanes-Oxley Protected Conduct
• DOL Clarifies Burden-Shifting Framework For Whistleblowers, Law 360 (October 2016)
• The Evolution Of SOX: A Powerful Remedy For Retaliation, Law 360 (May 2016)
• Whistleblower Protections and Incentives for Auditors and Accountants, Accounting Today (May 2016)
• 2016 Annual Update on the Whistleblower Provisions of SOX, American Bar Association Section of Labor and Employment Law Subcommittee on the Sarbanes-Oxley Act of 2002 (February 2016)
• Sixth Circuit Hands A Landmark Victory To SOX Whistleblowers, Law 360 (June 2015)
• A Year For Whistleblower Rewards And Protections, Law 360 (December 2014)
• Congress Strengthens Whistleblower Protections for Federal Employees, ABA Section of Labor and Employment Law (December 2012)
• Whistleblowers: What Protections And Forms of Relief Are Available For Foreign-Based Employees, ABA Section Of International Law Spring 2011 Meeting (March 2011)
• Law 360 Quotes Whistleblower Attorney Jason Zuckerman About Fifth Circuit Sarbanes-Oxley Whistleblower Decision
• Law 360 Quotes Whistleblower Lawyer Jason Zuckerman on Seminal Sarbanes-Oxley Whistleblower Decision
• Whistleblower Attorney Zuckerman Quoted in Article About Sarbanes-Oxley Whistleblower Protection Decisions
• Law 360 Quotes Whistleblower Lawyer Jason Zuckerman on Seminal Sarbanes-Oxley Whistleblower Decision
• Law360 Quotes Whistleblower Lawyer Jason Zuckerman About Sarbanes-Oxley Causation Standard
• Whistleblower Attorney Jason Zuckerman Quoted in Law360 Article About Whistleblower Self-Help Discovery
• Whistleblower Advocate Jason Zuckerman Quoted in Article About In-House Attorney Whistleblower Lawsuits
• Whistleblower Lawyer Hammer Quoted by Bloomberg About Rebound in Sarbanes Oxley Whistleblower Retaliation Claims
• Whistleblower Lawyer Quoted About Sarbanes-Oxley Whistleblower Development
• Whistleblower Lawyer Interviewed About the Rise of Cybersecurity Whistleblowing

 

 

Corporate Whistleblower