Whistleblower Lawyer Jason Zuckerman Quoted About Sarbanes-Oxley Whistleblower Protection

SOX whistleblower protection provision

A Law360 article titled DOL Take On SOX Getting Fed. Court Deference, Lawyers Say quotes whistleblower lawyer about recent federal court decisions construing the scope of protected whistleblower under the Sarbanes-Oxley Act.

The article reports that recent federal court decisions are deferring to the DOL Administrative Review Board’s decision in Sylvester v. Parexel Int’l broadly construing Sarbanes-Oxley whistleblowing.  The article quotes Zuckerman’s observation that “There is a clear trend emerging in which federal courts are deferring to Sylvester.”

In Sylvester, the ARB held:

  • Under the plain language of SOX, “the complainant need only show that he or she ‘reasonably believes’ that the conduct complained of constitutes a violation of the laws listed in Section 1514.”
  • An employee need not wait until the illegal conduct occurs to make a protected disclosure, so long as the employee “reasonably believes that the violation is likely to happen.”
  • A complaint need not allege shareholder fraud in order to be protected under SOX.  The ARB found that SOX was enacted, not solely to address securities fraud, but “corporate fraud generally.”  It is sufficient for an employee to form a reasonable belief that a violation of “any rule or regulation of the Securities and Exchange Commission” could lead to fraud, even if the violation itself is not fraudulent.  For example, SOX would protect a disclosure about deficient or inadequate internal controls over financial reporting, even though there is no allegation that fraud has actually taken place.
  • The reasonable belief standard requires an examination of the reasonableness of a complainant’s beliefs, but not whether the complainant actually communicated the reasonableness of those beliefs to management or the authorities.
  • The ARB overruled prior authority that had required a complainant to establish that the protected disclosure “definitively and specifically” related to one or more of the laws listed under Section 806(a).  See Platone v. FLYi, Inc., ARB 04-154, 2003-SOX-27 (ARB Sept. 29, 2006) (holding that the complainant did not engage in protected activity because she did not provide her employer with specific information regarding the conduct she believed constituted fraud).
  • A SOX complainant has engaged in protected activity if he or she simply has an objectively reasonable belief that a violation of the laws in Section 806 has occurred – the complainant does not need not establish the various elements of criminal fraud.  The ARB found that requiring a complainant to allege, prove, or approximate the elements of fraud (that the reported conduct was “material,” intentional, relied upon by shareholders, and caused a loss to shareholders) would be contrary to the purpose of the whistleblower protection provision.
  • The Iqbal/Twombly plausibility pleading standard does not apply to SOX claims.   Instead, a SOX complainant must simply provide “a full statement of the acts and omissions…which are believed to constitute the violations.”

Post-Sylevster, employers have tried to persuade federal courts to ignore the decision and instead defer to the ARB’s prior Platone decision.  Fortunately, that effort has been largely unsuccessful.  See, e.g., Wiest v. Lynch, 710 F.3d 121 (3d Cir. 2013) (holding that Sylvester is entitled to Chevron deference); Leshinsky v. Telvent GIT, S.A., 942 F. Supp. 2d 432, 443 (S.D.N.Y. 2013); Stewart v. Doral Fin. Corp., CIV. 13-1349 DRD, 2014 WL 661587 (D.P.R. Feb. 21, 2014).

In Lockheed Martin Corp. v. Administrative Review Bd., the Tenth Circuit held that “the Board explicitly disavowed the ‘definitive and specific’ evidentiary standard for Sarbanes–Oxley complainants.”  Lockheed Martin Corp. v. Admin. Review Bd., U.S. Dep’t of Labor, 717 F.3d 1121, 1132 n.7 (2013).  In August 2014, the Second Circuit held that Sylvester should be granted Skidmore deference, or “respect according to its persuasiveness.”  Nielsen v. AECOM Tech. Corp., 2014 WL 3882488 (2d Cir. Aug. 8, 2014).   Note though that some jurisdictions continue to apply PlatoneSee, e.g., Gauthier v. Shaw Group, Inc., 2012 WL 6043012 (W.D.N.C. Dec. 4, 2012) (dismissing SOX complaint because the alleged protected conduct did not relate specifically to shareholder fraud).  As federal courts increasingly defer to Sylvester, SOX whistleblowers are more likely to survive summary judgment and establish protected conduct at trial.

 

 

Whistleblower Lawyer Jason Zuckerman Will Speak About False Claims Act Litigation at Taxpayers Against Fraud Conference

contractor whistleblower protection

Whistleblower lawyer Jason Zuckerman will speak on a panel titled “Latest Trends in FCA Defense Tactics” at the Fourteenth Annual Taxpayers Against Fraud Education Fund Conference.  The other panelists are distinguished qui tam attorneys Jennifer Verkamp and Matthew Organ.

TAFEF presents the only national conference dedicated to serving those who prosecute False Claims Act qui tam actions. The TAFEF Annual Conference brings together key FCA players, including government attorneys from the U.S. Department of Justice and U.S. Attorneys offices, federal agency officials, state government attorneys and officials, relators’ counsel, and other experts, and provides valuable educational information and practical analysis in this important legal practice area.

Whistleblower Attorney Jason Zuckerman Will Speak About Sarbanes-Oxley Whistleblower Protection at VBA Conference

Whistleblower attorney Jason Zuckerman will speak about “Navigating the Maze of Private Sector Whistleblower  Protections: Recent Developments in Sarbanes-Oxley, Dodd-Frank, and False Claims Act Whistleblower Litigation” on September 12, 2014 at the 44th Annual VBA Conference on Labor Relations and Employment Law.

The panel will focus on hot topics in Sarbanes-Oxley (SOX), Dodd-Frank, and False Claims Act whistle-blower retaliation claims, including:

  • Practical implications of the recent U.S. Supreme Court’s Lawson v. FMR LLC decision;
  • Whether internal disclosures are protected under Dodd-Frank;
  • DOL and federal court decisions defining the scope of protected conduct under SOX; and
  • Practical tips for litigating whistleblower retaliation claims.

Jason Zuckerman Contributing Author to International Handbook on Whistleblowing Research

International Handbook on Whistleblowing Research

Whistleblower lawyer Jason Zuckerman is a contributing author to a new book titled International Handbook on Whistleblowing Research, which provides a comprehensive guide to existing research and blueprints for how new research should be conducted in the future. It covers conceptual and definitional fundamentals of whistleblowing and strategies for researching whistleblowing in an organizational context, as well as law reform, regulation, management practicalities and research ethics. It also charts the lessons of 30 years of empirical research and maps out new questions and projects for future decades. This Handbook, with its unique perspective on the complex, multi-faceted and often controversial nature of whistleblowing research, will be a vital resource for researchers, policymakers and organizations around the world.

Zuckerman contributed to a chapter titled “Whistleblower Support in Practice: Towards an Integrated Research Model,” which includes a discussion of whistleblower protections for federal employees, including the Whistleblower Protection Act.

The book is edited by  A.J. Brown, Griffith University, Australia, David Lewis, Middlesex University, UK, Richard Moberly, University of Nebraska College of Law, US and Wim Vandekerckhove, University of Greenwich, UK

Description
‘This Handbook is testament to the value of whistleblowing for democracy, with new research and existing knowledge probed with fresh and urgent questions. What is the impact of global technology on public accountability, journalism and whistleblower protection? If indifference is what really matters, is focus on retaliation misplaced? What stops those in authority from heeding whistleblowers? A vital resource for anyone fighting to protect whistleblowers anywhere to better articulate whose interests are really at stake and what needs to be done.’
– Anna Myers, lawyer and Expert Coordinator of the Whistleblowing International Network (WIN)

In the modern age of institutions, whistleblowing is now established as one of the most important processes – if not the single most important process – by which governments and corporations are kept accountable to the societies they are meant to serve. This essential Handbook provides researchers and policy makers from around the world with a comprehensive overview of the state of our knowledge regarding this vital process. In addition to drawing from the last 30 years of progressively more systematic research into whistleblowing, it also provides cutting-edge analysis of the conceptual and practical challenges that researchers will want to confront in the next decade.

Contents
Contributors include: B. Bjørkelo, R. Bosua, A.J. Brown, H. Bye, K. Crow, T. Devine, S. Dreyfus, T. Morehead Dworkin, B. Edwards, B. Fasterling, T. Faunce, P. Harpur, R. Lederman, D. Lewis, J. Leys, K. Loyens, J. Maesschalck, B. Martin, D. Meyer, M. Miceli, S. Milton, R. Moberly, R. Morgan, J. Near, T. Nikolic, J. Olsen, M. Rehg, P. Roberts, M. Skivenes, R. Smith, M. Spencer, J. Spencer, S. Trygstad, E. Tsahuridu, T. Uys, W. Vandekerckhove, S. Walden, C. Wheeler, J. Zuckerman

Further information

‘This Handbook is testament to the value of whistleblowing for democracy, with new research and existing knowledge probed with fresh and urgent questions. What is the impact of global technology on public accountability, journalism and whistleblower protection? If indifference is what really matters, is focus on retaliation misplaced? What stops those in authority from heeding whistleblowers? A vital resource for anyone fighting to protect whistleblowers anywhere to better articulate whose interests are really at stake and what needs to be done.’
– Anna Myers, lawyer and Expert Coordinator of the Whistleblowing International Network (WIN)

‘The International Handbook on Whistleblowing Research offers a thorough and thoughtful examination of current approaches to research regarding this important topic. The editors have included the viewpoints of highly regarded researchers from a number of different fields, including the social sciences, business, and law. Unlike some collections of comments by experts in diverse fields, the editors have created a coherent and useful structure for an analysis of the status of whistleblowing research, the appropriate design for such research and its practical applications. The book casts new light on many topics crucial to the success or failure of whistleblower laws. Researchers, activists, policy makers and anyone interested in understanding whistleblowing and improving laws that encourage and protect it should read this indispensable work. A “who’s who” of the field and a depository of insights and ideas.’
– Robert Vaughn, American University Washington College of Law, US

Whistleblowing – the disclosure of wrongdoing by organizational insiders –is vital to modern public accountability and integrity across all organizations and societies. This important Handbook offers original, cutting-edge analyses of the conceptual and practical challenges that researchers face in order to better inform the way whistleblowing is understood and confronted by organizations, regulatory authorities and governments.

Featuring contributions from scholars and policy practitioners in a number of diverse fields – including sociology, political science, psychology, information systems, media studies, business, management, criminology, public policy and several branches of law – the book provides a comprehensive guide to existing research and blueprints for how new research should be conducted in the future. It covers conceptual and definitional fundamentals of whistleblowing and strategies for researching whistleblowing in an organizational context, as well as law reform, regulation, management practicalities and research ethics. It also charts the lessons of 30 years of empirical research and maps out new questions and projects for future decades.

This Handbook, with its unique perspective on the complex, multi-faceted and often controversial nature of whistleblowing research, will be a vital resource for researchers, policymakers and organizations around the world.

Whistleblower Lawyer Jason Zuckerman Receives Martindale-Hubbell® AV® Preeminent™ Rating

Following extensive and confidential peer review by members of the Bar and Judiciary, whistleblower lawyer Jason Zuckerman received a Martindale-Hubbell® AV® PreeminentRating of 4.6 out of 5.0.  According to Martindale-Hubbell®’’s website A”V Preeminent® is a significant rating accomplishment – a testament to the fact that a lawyer’s peers rank him or her at the highest level of professional excellence.”

Zuckerman Law is a Washington, DC-based law firm that represents whistleblowers nationwide and litigates employment-related disputes on behalf of employees in the District of Columbia, Maryland, and Virginia.  The firm is dedicated to zealously advocating on behalf of workers whose rights have been violated to achieve justice and accountability.

Whistleblower Lawyer Jason Zuckerman Selected for Inclusion in 2014 Best Lawyers in America

Whistleblower lawyer Jason Zuckerman was recently selected by his peers for inclusion in the 21st Edition of Best Lawyers in America in the practice area Litigation – Labor and Employment.

Zuckerman Law is a Washington, DC-based law firm that represents whistleblowers nationwide and litigates employment-related disputes on behalf of employees in the District of Columbia, Maryland, and Virginia.  The firm is dedicated to zealously advocating on behalf of workers whose rights have been violated to achieve justice and accountability.

Whistleblower Lawyer Jason Zuckerman Will Speak at ABA Pogram about Litigating Whistleblower Claims at the U.S. Department of Labor

Whistleblower lawyer Jason Zuckerman will be speaking at a September 18, 2014 ABA program titled SOX, OSHA and Beyond: Litigating Whistleblower Claims at the U.S. Department of Labor. 

To say “there has been quite a bit of attention paid to whistleblower claims and lawsuits recently” is likely the understatement of the year. Indeed, the U.S. Senate declared July 30, 2014, as “National Whistleblower Appreciation Day” for the second year in row. This resolution came on the anniversary of the first ever whistleblower protection law enacted on July 30, 1778. Things have certainly changed since 1778 and, most significantly, within the past 10 years. It is more critical now, than ever, for labor and employment attorneys, corporate executives, human resources professionals, community and union leaders, and employees to know the evolving rights and responsibilities of whistleblowers and their employers in this ever-changing arena.

Given this backdrop, the Labor & Employment Law Section is pleased to announce it has combined forces with the United State Department of Labor to present SOX, OSHA, and Beyond: Litigating Whistleblower Claims at the DOL. This “must see” seminar will be presented in ten major cities around the country (see Save the Date at right). Watch this page for listings when registration opens for each city.

Register Now

Program Details

Thursday, September 18, 2014
12:00 p.m. – 2:00 p.m.

Arent Fox LLP, 1717 K Street, NW, Washington, DC

Program Description

From the Sarbanes-Oxley Act and the Affordable Care Act to the Occupational Safety and Health Act, more than 25 whistleblower statutes are now enforced by the United States Department of Labor. Given the rise in whistleblower protections, practitioners need to know how to navigate the DOL’s administrative adjudication process for whistleblower claims. A distinguished panel, featuring Solicitor of Labor M. Patricia Smith, along with experienced practitioners, will discuss DOL’s recently-expanded Whistleblower Protection Program and its recently-modified procedures for investigating and adjudicating whistleblower claims. In addition, the expert panel will offer practical insights on litigating before the DOL, and explore the considerations involved in deciding whether to invoke the “kick out” provisions that allow litigants to bring claims under DOL-enforced statutes in federal court.

Moderator

Louis Lopez, U.S. Office of Special Counsel, Washington, DC

Speakers

Hon. M. Patricia Smith, U.S. Department of Labor, Washington, DC

Connie N. Bertram, Proskauer, Washington, DC

Jason Zuckerman, Zuckerman Law, Washington, DC

Discounted advance registration rates are available. The fee for ABA Section of Labor and Employment Law members and National Employment Lawyers Association members to attend is $25, $40 for ABA members who are not members of the Section of Labor and Employment Law and $60 for non-ABA members. Prices will increase on September 10.

Lunch will be provided for registered participants prior to the start of the program.  Attendees who plan to eat lunch should arrive by 12:00 p.m.  Food is not permitted in the program room.

An application for continuing legal education accreditation for this session has been submitted to Virginia and Pennsylvania.

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.