Whistleblower lawyer Jason Zuckerman will be speaking on a panel titled “Developments and Trends in SOX and Dodd-Frank Whistleblower Litigation” at the November 2014 ABA Section of Labor and Employment Law Annual Labor and Employment Law Conference. Zuckerman is honored to appear on the panel with Professor Richard Moberly of the University of Nebraska College of Law, Jason Schwartz, a partner at Gibson, Dunn & Crutcher LLP, and Megan Guenther, Counsel for Whistleblower Programs at the DOL Office of Solicitor.
The panel will cover the following topics: SOX and Dodd-Frank jurisprudence has been rapidly developing over the past few years—from an energized ARB, to notable decisions in the federal appellate courts on the scope of protected conduct, to the Supreme Court’s Lawson decision on the scope of SOX coverage. Come for our discussion of the latest cutting-edge developments in SOX, Dodd-Frank and similar whistleblower protection laws, as well as the emerging issues we can expect to see in the future.
Zuckerman Law has extensive experience representing whistleblowers under a wide variety of corporate whistleblower protection laws. To lean more about the Sarbanes Oxley whistleblower protection law, download our free guide “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.
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?
