Whistleblower Lawyer Jason Zuckerman Will Speak at ABA Conference About Developments and Trends in SOX and Dodd-Frank Whistleblower Litigation

Dodd-Frank whistleblower protection lawyer

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.

Whistleblower Lawyer Jason Zuckerman Will Chair Panel on Strategies For Representing Whistleblowers In The Federal Government

DC whistleblower lawyer Jason Zuckerman will chair a panel about Strategies For Representing Whistleblowers In The Federal Government at NELA’s October 17-18, 2014 conference titled “Representing Federal Employees Navigating A Complex Landscape.”  Panelists Thomas M. Devine, Bruce Fong & The Honorable Ronald J. Weiss will address the following topics:

After a 13-year legislative campaign, Congress finally and unanimously passed the Whistleblower Protection Enhancement Act, which broadens the scope of protected conduct under the Whistleblower Protection Act, authorizes uncapped compensatory damages in WPA actions, establishes all-circuit review, and expands Individual Right of Action rights. Our speakers will examine the impact of the WPEA, offer tips for representing whistleblowers before the U.S. Office of Special Counsel and the Merit Systems Protection Board, and discuss the role of Inspectors General in investigating whistleblower disclosures and assisting whistleblowers.

Representing Federal Employees: Navigating A Complex Landscape will provide practical tips and strategies to help you traverse the intricate labyrinth of regulatory, procedural, and substantive laws facing your federal employee clients. This two-day seminar is designed for lawyers who currently represent, or would like to represent, federal employees. It will provide you with the tools needed to advocate for and enforce federal employees’ rights before the Equal Employment Opportunity Commission (EEOC), Merit Systems Protection Board (MSPB), and in court. Panels of experts from the bench, bar, and key government agencies will discuss a wide range of cutting edge topics, such as security clearances, compensatory damages, election of remedies, settlement, class actions, emerging LGBT issues, and whistleblower rights. Primer panels on administrative practice before the EEOC and MSPB will introduce new practitioners to federal sector adjudication at these agencies.

To register for the conference, go to NELA’s website.

MSPB Whistleblower Protection Act Decision Clarifies Scope of IRA Appeal

In Benton-Flores v. Dep’t of Defense, 2014 MSPB 60 (July 31, 2014), the Board reversed an AJ’s decision holding that an IRA appellant failed to exhaust her administrative  remedies before OSC and clarified that an AJ should consider all allegations contained throughout the entire record, including the initial OSC complaint and other written correspondence.  The Board held:

We do not read the narrative of her MSPB Form 185-1 as limiting her appeal strictly to the harmful procedural error and EEO retaliation issues, to the exclusion of the whistleblower retaliation allegations contained in each of her other submissions.  The administrative judge must consider the allegations that the appellant raised throughout the entire record before deciding to dismiss an IRA appeal for lack of jurisdiction. See Hoback v. Department of the Treasury, 86 M.S.P.R. 425, ¶ 6 (2000).

This decision underscores the importance of whistleblowers documenting exhaustion of remedies before the Office of Special Counsel.  In particular, an IRA appellant should have written documentation, such as the OSC complaint or other written submissions to OSC, showing that the whistleblower alleged disclosures protected by the Whistleblower Protection Act and personnel actions covered by the WPA.

Whistleblower Lawyer Jason Zuckerman Quoted About Suspicious Investigation of Allegations of Retaliation

An article titled CFPB opens new investigation in bid to exonerate bureau managers on discrimination quotes DC whistleblower lawyer Jason Zuckerman about a suspicious investigation that appears designed to exonerate a CFPB official accused of retaliation.  An investigation conducted about one year ago by an independent investigator identified  a “toxic workplace” environment in a certain unit.  During recent Congressional testimony, the independent investigator stated that she “found that the general environment in Consumer Response is one of exclusion, retaliation, discrimination, nepotism, demoralization, devaluation, and other offensive working conditions which constitute a toxic workplace for many of its employees.”

Nearly one year following that investigation, the Bureau has retained a law firm to conduct an “independent” investigation that appears designed to exonerate a Bureau official accused of retaliation.  The article quotes whistleblower attorney Jason Zuckerman about the investigation:

“I think the outcome of the new report is pretty clear,” said Jason Zuckerman, Martin’s attorney, who successfully represented Martin. “They are trying to exonerate themselves.” “The only way this could be a legitimate investigation is if it was not influenced by people who have a stake in the outcome. I can’t see any legitimate purpose in this,” Zuckerman said in an interview.

 

Whistleblower Lawyer Jason Zuckerman Speaking at Dodd-Frank 4th Anniversary Program

Dodd-Frank whistleblower protection lawyer

Whistleblower lawyer Jason Zuckerman will be speaking on a panel titled “Dodd-Frank 4th Anniversary: Strengthening Anti-Reprisal Rights under the SEC Whistleblower Program” on Wednesday July 30, 2014.  The panel will take place on National Whistleblower Appreciation Day and will examine appropriate rule-making for the SEC to clarify and strengthen whistleblower protections available to those who report misconduct internally or externally.  Zuckerman is honored to appear on this panel with distinguished panelists Jordan Thomas, Chairman of Whistleblower Practice, Labaton Sucharow, Eric Ben-Artzi, Deutsche Bank financial whistleblower, and Lisa Donner, Executive Director, Americans for Financial Reform.  National Whistleblower Appreciation Day acknowledges and commemorates the contributions of whistleblowers to combating waste, fraud, abuse, and violations of laws, and informs workers and the public about the legal rights of citizens of the United States to blow the whistle.

FAR Amendment Bars Agencies from Subsidizing Whistleblower Retaliation

contractor whistleblower protection

For too long, taxpayers have been subsidizing whistleblower retaliation by paying legal costs incurred by contractors in defending whistleblower retaliation lawsuits.  Due to this foolish practice, government contractors had little disincentive not to retaliate against whistleblowers because the government paid the cost of defending such claims.  A FAR amendment implementing the whistleblower protection provisions of the NDAA provides that legal costs incurred in defending an NDAA whistleblower retaliation claim are presumptively unallowable until the matter is completely litigated and the contractor prevails.   If an NDAA whistleblower claim is settled, costs would be reimbursed only if the contracting officer determines that there was very little likelihood that the claimant would have been successful on the merits.  It is long overdue for the government to stop subsidizing whistleblower retaliation.

Washington Post Quotes Whistleblower Attorney Jason Zuckerman About Chilling Effect of Insider Threat Program

In a Washington Post article titled Intelligence security initiatives have chilling effect on federal whistleblowers, critics say, whistleblower lawyer Jason Zuckerman warns of the chilling effect of the Obama Administration’s Insider Threat Program.  The article leads with a description of a tense meeting between Senator Grassley and FBI officials in which Senator Grassley’s staff asked how a program designed to uncover internal security threats would at the same time protect whistleblowers.  According to the article, the FBI officials “said the FBI would protect whistleblowers by ‘registering’ them.”

The apparent plan to “register” whistleblowers is one of many troubling aspects of a program that hearkens back to the McCarthy era.  While there are legitimate reasons to safeguard against the unauthorized disclosure of classified information, the Administration should stay the implementation of the Insider Threat program until there are adequate safeguards to protect whistleblowers.

NDAA Contractor Whistleblower Protection Law Highly Effective in Rooting Out Fraud

stop-fraud

In an article titled “New law drove whistleblower complaints against DOD contractors up,” Jill Aitoro reports that the NDAA whistleblower protection provisions, which became effective one year ago, have generated a substantial increase in whistleblower complaints to the Department of Defense Office of Inspector General.  According to the article,  “the rate of complaints from Defense Department whistleblowers increased from about four to six a month as of August 2013 to more than 200 since Jan. 1.”  In addition, the article reports that whistleblower disclosures about DOD contractor fraud have resulted in several substantial recoveries for the government.

Sections 827 and 828 of the NDAA provide robust whistleblower protection to employees of most government contractors and grantees.   Under the NDAA whistleblower protection provisions, protected conduct includes the disclosure of information that the employee reasonably believes is evidence of:

  • gross mismanagement of a Federal contract or grant;
  • a gross waste of Federal funds;
  • an abuse of authority  relating to a Federal contract or grant; or
  • a substantial and specific danger to public health or safety, or a violation of law, rule, or regulation related to a Federal contract.

To be protected, the disclosure must be made to a Member of Congress or Congressional committee, an IG, the GAO, a federal employee responsible for contract or grant oversight or management at the relevant agency, an authorized official of DOJ or other law enforcement agency, a court or grand jury or a management official or other employee of the contractor or subcontractor who has the responsibility to investigate, discover, or address misconduct.

Proving NDAA Whistleblower Retaliation

The burden of proof and causation standard in NDAA whistleblower cases is very favorable to employees. The complainant prevails merely by demonstrating that the protected disclosure was a contributing factor in the personnel action, which can be met by showing knowledge and temporal proximity.

Remedies for Prevailing NDAA Whistleblowers

Remedies include reinstatement, back pay, uncapped compensatory damages (emotional distress damages) and attorney fees and costs.

Procedures for Filing a NDAA Whistleblower Retaliation Claim

An NDAA reprisal claim must be filed initially with the Office of Inspector of General of the agency that awarded the contract or grant about which the employee disclosed wrongdoing, and the statue of limitations is three years after the date of the reprisal.  The OIG will investigate the complaint and make recommendations to the agency head.  If the agency head fails to provide requested relief within 210 days, the whistleblower may bring an action in federal district court and try the case before a jury.

 

 

 

 

VA Using Patient Privacy to Stifle Whistleblowers

Official seal of the United States Department of Veterans Affairs

An article in The Washington Post titled VA uses patient privacy to go after whistleblowers, critics say reports that the VA has routinely used HIPPA to stifle whistleblowers.  And a letter from AFGE to the VA’s General Counsel provides examples of the VA disciplining or threatening to discipline whistleblowers for allegedly violating HIPPA or the Privacy Act.

Unfortunately, all too often whistleblowers are disciplined for their disclosures.  Indeed, some employers are becoming increasingly aggressive in prosecuting frivolous counterclaims against whistleblowers for engaging in “self-help discovery.”  But VA employees who make disclosures to Congress concerning substantial and specific dangers to patients will likely fall within the whistleblower exception to HIPPA.  The MSPB’s decision in Parikh v. Department of Veterans Affairs offers a cogent analysis of HIPPA’s whistleblower exception and is a good example of how the Whistleblower Protection Act can provide a strong remedy to VA whistleblowers.

 

 

DC Whistleblower Lawyer Chairing CLE About Qui Tam, SEC, and IRS Whistleblower Rewards Claims

Dodd-Frank whistleblower protection lawyer

DC whistleblower lawyer Jason Zuckerman will be chairing a DC Bar CLE titled “Recent Developments in Qui Tam, IRS, and SEC Whistleblower Rewards Claims” on July 22, 2014.   The speakers are leading experts from the government and private practice:

  • Laurence Freedman, Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
  • Reuben Guttman, Grant & Eisenhofer P.A.
  • Arian June, WilmerHale
  • Sean McKessy, Chief, Office of the Whistleblower, U.S. Securities & Exchange Commission
  • Gerard Mene, Assistant U.S. Attorney
  • Jordan Thomas, Labaton Sucharow LLP
  • Stephen Whitlock, Director, IRS Whistleblower Office
  • Jason Zuckerman, Law Office of Jason M Zuckerman PLLC (Course Chair)

The course will cover the following topics:

This class will focus on recent developments in False Claims Act litigation and claims that qualify for rewards under the SEC and IRS whistleblower rewards programs.  You will learn about best practices for investigating and preparing whistleblower submissions to DOJ, IRS, and SEC, as well as best practices for companies to employ in responding to whistleblower disclosures.  Current trends in the investigation and prosecution of civil and criminal fraud enforcement actions resulting from whistleblower disclosures will be explored.  Our faculty panel also will address the interplay between whistleblower rewards claims and whistleblower retaliation claims.

More information about this CLE is available here.