III by jizhen1947

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									September 1, 2008

       THE SARBANES-OXLEY WHISTLEBLOWER PROVISIONS

The accounting scandals at Enron and Worldcom caused huge losses of
not only investment capital, but also of investors‘ confidence. In
response, President Bush signed into law the Sarbanes-Oxley Act of
2002 (the "Act"), ―SOX‖, as it is typically called, is primarily intended
to address fraud in financial reporting and the lack of oversight by self-
interested members of senior corporate management.                The Act
embodies an unprecedented effort by Congress to impose Federal
securities regulation (and liability) on the, ―inner circle,‖ of corporate
America. Section 806 of SOX protects employees who complain of
financial or other specific wrongdoing related to shareholder fraud,
and/or mail, wire, or bank fraud.

Since Congress passed the Act, over 500 corporate employees have
filed complaints with the U.S. Department of Labor (―DOL‖) alleging
violations of the Act.     Even though the vast majority of these
complaints have been dismissed or resolved in favor of the employer1,
complaining employees have received significant awards and the cost
of defending these claims has been high for the responding employer.
Below is an outline of the requirements of this Act and a discussion of
the more relevant and instructive rulings by the DOL‘s Administrative
Law Judges (―ALJ‖), Administrative Review Boards (―ARB‖) and the
Federal courts. Because the Act only recently passed, the
administrative judges and the courts have looked to other
whistleblower laws for guidance when adjudicating SOX whistleblower
claims.2 At times, Federal courts rely on ALJ and ARB decisions when
addressing SOX claims, yet note that the administrative decisions may

1       From its enactment through 2005, 491 employees filed Sarbanes-Oxley complaints with the
Occupational Safety and Health Administration (―OSHA‖), which is the agency assigned to initially
investigate these complaints.   OSHA entered findings in 361 of these cases and only found for the
employee 13 times.      See Unfilled Expectations: An Empirical Analysis of Why Sarbanes-Oxley
Whistleblowers Rarely Win, 49 Wm. & Mary L. Rev.65 (2007.)
2       Collins v. Beazer Homes USA, Inc., 334 F.Supp.2d 1365 (N.D.Ga. Sept. 2, 2004); Bozeman v.
Per-Se Technologies, Inc., 1:03-CV-3970 (N.D.Ga. Sept. 12, 2006) (citing Beazer Homes., 334 F.Supp.3d
1365, 1374 (N.D.Ga. 2004)).



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provide guidance but are not binding on them.3 This article includes a
compilation of both relevant administrative judges‘ opinions as well as
opinions from Federal courts on SOX Whistleblower claims.


                     SOX WHISTLEBLOWER CIVIL PROTECTIONS

SOX essentially protects employees of publicly traded companies who
either: (1) provide information that he or she reasonably believes
constitutes mail fraud, bank fraud, wire fraud or securities fraud; or
(2) file, participate or assist in a proceeding filed (or about to be filed)
concerning the same types of fraud. The Act affords such employees
with civil protections for any adverse employment decisions made, at
least in part, because of the employees conduct as described above.4

         I.      What Employers are Subject to Regulation by SOX?

SOX applies to companies that are required to register with the U.S.
Securities and Exchange Commission under Section 12 of the
Securities Exchange Act of 1934 (―1934 Act‖) or are required to file
reports under section 15(d) of the 1934 Act. It essentially covers
publicly traded corporations,5 ―or any officer, employee, contractor,
subcontractor, or agent of such company.‖ The courts have
consistently ruled that the Act does not apply retroactively to alleged
conduct that occurred prior to July 30, 2002.6

         1.      Application to Subsidiaries of Publicly Traded
                 Companies

In some circumstances, the DOL judges and the Federal courts have
found that employees of a privately owned subsidiary of a publicly
traded company may also be able to bring SOX7 claims. Two recent
decisions addressing the issue are RAO v. Daimler Chrysler Corp8 and


3        Collins. at 1366 & n.10; see also Livingston v. Wyeth, No. 1:03-CV-00919 (M.D.N.C. July 28,
2006).
4        See Appendix A for the actual language of the Act.
5        An ALJ has held that a privately held employer that filed a SEC registration statement, but then
withdrew it, is not covered by the Act. Roulette v. American Capital Access 2004-SOX-78 (ALJ Dec. 22,
2004).
6        Gallagher v. Granada Entm‘t. USA, 2004-SOX-74 at 51, FN3. (ALJ Oct. 19, 2004).
7        See e.g. Klopfenstein v. PCC Flow Technologies Holdings Inc., 2004-SOX-11 (ARB May 31, 2006).
8        No. 2:06-CV-13723 (E.D.Mich. May 14, 2007) (case below 2006-SOX-78).



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Savastano v. WPP Group, PLC.9 In RAO, the district court granted
summary judgment against the plaintiff employee because the publicly
traded parent of the defendant employer had not been named in the
complaint. The court emphasized that the plaintiff‘s amended
complaint only mentioned employees of the subsidiary as those who
were aware of the situation and did not assert that anyone at the
parent company had such knowledge.

In Savastano, the ALJ found that the complainant had alleged no facts
that would tend to support a finding that either her non-publicly traded
employer or its non-publicly traded holding company were acting as
agents of the publicly traded parent in connection with the termination
of her employment. The ALJ found that, while the complainant had
identified statements from the parent's annual report indicating that its
non-public subsidiaries may act as its agents for purposes of collecting
and reporting financial data, there was no factual predicate for finding
an agency relationship pertaining to employment matters. Accordingly,
the ALJ granted summary judgment in favor of the respondents.

      2.       Application to Overseas Employers or Employees

The Act is silent as to whether it applies to U.S. Citizens overseas who
work for 1) a publicly traded foreign company or 2) a privately held
foreign subsidiary of a publicly traded U.S. company. In Carnero v.
Boston Scientific Corp.10, the First Circuit affirmed a ruling that the Act
did not protect an Argentinean citizen who worked for the Argentinean
and Brazilian subsidiaries of the U.S. parent corporation. Yet, the court
specifically stated that it was not deciding ―whether Congress intended
to cover an employee based in the United States who is retaliated
against for whistle blowing while on a temporary assignment
overseas.‖11 However, in O’Mahony v. Accenture, a New York Federal
Judge found that a former senior employee of a global consulting firm
who was stationed in Paris could sue for damages under the
whistleblower protection provision of Sarbanes-Oxley.12 Rosemary
O'Mahony, a British citizen who worked for Accenture in France for 14
years, claimed the company demoted her after she accused it of
withholding more than $3 million it owed in French social security
payments. The Southern District of New York Judge rejected a motion

9     2007-SOX-34 (ALJ July 18, 2007).
10    433 F.3d 1, 23 IER Cases 1505 (1st Cir.2006).
11    Id. at 18, n.17.

12    2008 WL 344710 (S.D.N.Y. Feb. 5, 2008).




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to dismiss by co-defendants Accenture, which is based in Bermuda,
and its U.S. subsidiary.13

        3.       Privately Held Contractors or Subcontractors of
                 Publicly Traded Companies

Section 806 of SOX provides that no ―contractor, sub-contractor or
agent‖ of a company subject to the Act, may enter into conduct
prohibited by the Act. The legislative history of the Act reveals that
this language was intended to protect employees of privately owned
accounting, legal, or other consulting firms that provide information
about securities fraud by publicly traded companies.14

In Deremer v. Gulfmark Offshore, Inc.,15 the complainant was engaged
by the respondent as an independent contractor to serve as a project
manager coordinating SOX compliance. The contract was for a set
period. The respondent employer took the position that the
complainant was not a covered employee or person under the SOX
whistleblower provision. The ALJ disagreed and observed that the
regulation was purposely broad, and found that a contractor or sub
contractor may be ―an individual whose employment could be affected
by a company or company representative.‖16

        4.       Individual Liability

The Act specifically applies to all officers, employees, contractors,
subcontractors, or agents of a covered company. At least one ALJ has
ruled that individuals may be properly named as respondents under
Section 806.17

        II.      JUDICIAL PROCESS FOR PURSUING A SOX CLAIM

        1.       Department of Labor – OSHA

In order to pursue a SOX whistleblower claim, an employee must file a

13      Id. Other ALJ decisions have dismissed claims brought by overseas employee and have cited the
reasoning of the district ruling in Canero as its basis. See Concone v. Capital One Fin. Corp., 2005-SOX-6
(ALJ Dec. 3, 2004); Ede v. Swatch Group, 2004-SOX-68, 69 (ALJ Jan. 14, 2005).

14      S. Rep. No. 107-146 at 5 (2002).
15      2006-SOX-2 (ALJ June 29, 2007).

16      29 C.F.R. § 1980.001.

17      Granada Entm’t, 2004-SOX-74 (ALJ Oct. 19, 2004).



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written complaint with any office of the Occupational Safety and Health
Administration (―OSHA‖). The written complaint must be filed within
90 days of the adverse employment action. Unwritten complaints are
not sufficient. Respondent employers are not required to file a
response to the Complaint unless requested by OSHA.18

The 90–day statute of limitations is triggered by the ―final definitive
adverse employment action‖. A continuing violation argument to avoid
the limitation period was rejected by the administrative judge in
Walker v. Aramark Corp.19 Administrative Judges have declined to
honor the parties‘ private agreement to ―toll‖ the 90 day period.20
Judges have found ―equitable tolling‖ when certain circumstances
support it, such as when the complaining employee is actively mislead
and/or lulled into a delay by his employer21, however ignorance of the
legal requirements is not an excuse.22


18       Jordan v. Sprint Nextel Corp., 2006-SOX-41 (ALJ Mar. 14, 2006), Brady v. Direct Mail
         Management, 2006-SOX-16 (ALJ Jan. 5, 2006).
19       Walker v. Aramark Corp., 2003–SOX—4 (ALJ Aug. 26, 2003). See Rollins v. American Airlines,
Inc., ARB No. 04-140, ALJ No. 2004-AIR-9 (ARB Apr. 3, 2007) (finding that the trigger date in a AIR21
and SOX action was the date that the complaining employee was presented with a ―career decision
advisory letter). The ARB observed that under English v. Whitfield, 858 F.2d 957, 962 (4th Cir. 1988),
rev'd on other grounds, 496 U.S. 72 (1990) and Wagerle v. The Hosp. of the Univ. of Pa., 1993-ERA-1,
slip op. at 3-6 (Sec'y Mar. 17, 1995), the possibility that the Complainant could have avoided the effects
of the advisory letter by resigning voluntarily or accepting employment in another division did not negate
the effect of the advisory letter's notification of intent to terminate the Complainant's employment. See
also Salian v. Reedhycalog UK, 2007-SOX-20 (ALJ May 11, 2007) (noting an unequivocal verbal notice of
termination gave the Complainant adequate notice to trigger the running of the statute of limitations).
Moreover an event that shows a link between the ―protected activity‖ and the termination does not extend
the filing period when the credible evidence showed that the employee already knew that there was a
link. Roulett v. American Capital Access, 2004-SOX-78 (ALJ Dec. 22,        2004).
20       Szymonik v. Tymetrix, Inc., 2006-SOX-50 (ALJ Mar. 8, 2006) (stating that ―When the United
States Congress passed the Sarbanes Oxley Act, its explicit intent was for a 90-day statute of limitations
for whistleblower claims (citing 18 U.S.C. § 1514A(b)(2)(D); 29 C.F.R. § 1980.103(d))). There is no
suggestion in the language of the Act that Congress intended for private parties to enter into private,
legally binding agreements to toll the statute of limitations. The purpose of the Act is "to protect investors
by improving the accuracy and reliability of corporate disclosures made pursuant to the securities laws,
and for other purposes." Sarbanes-Oxley Act of 2002, Pub. L. No. 107-204, 116 Stat 745. To allow private
parties to contract at will out of the 90-day limitation would effectively thwart the explicit legislative intent
of Congress regarding the applicable statute of limitations. Slip op. at 5.
21       Bulls v. Chevron/Texaco, Inc., 2006-SOX-117 (ALJ Oct. 13, 2006).
22       Carter v. Champion Bus, Inc., ARB No. 05-076, ALJ No. 2005-SOX-23 (ARB Sept. 29, 2006);
Moldauer v. Canadaigua Wine Co., ARB No. 04-022, ALJ No. 2003-SOX-26 (ARB Dec. 30, 2005).



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      2.      OSHA Investigative Process

Upon receipt of the complaint, OSHA will notify the respondent(s)
named and the Securities and Exchange Commisson (the ―SEC‖). The
complaint will be dismissed if the complaint does not make a prima
facie showing that protected behavior was a ―contributing factor‖ in
the unfavorable employment action.23 A SOX Whistleblower must
prove three things to establish a prima facie case. First, that the
employee was engaged in a protected activity. Second, that the
employer took adverse employment actions against the employee.
Third, that the adverse employment action against the employee was
influenced, at least in part, by the protected activity.

The respondents may submit a written response to OSHA within 20
days including affidavits and documents to support its position. Unless
the respondent establishes by ―clear and convincing evidence‖24 that it
would have taken the same action in the absence of the protected
activity, OSHA will investigate the claim. This evidentiary standard is a
higher standard than preponderance of the evidence but less than
beyond a reasonable doubt.25

OSHA must complete its investigation within 60 days of the filing of
the complaint. If OSHA has ―reasonable cause‖ to believe that a
violation has occurred, it will provide the respondent(s) with the
evidence supporting the allegations and the respondent(s) will have 30
business days to submit a written response and/or meet with OSHA
investigators.

If OSHA substantiates the claim, it will issue written findings and a
preliminary order providing remedies to the employee. Remedies
include: reinstatement;26 back pay with interest; and special damages
sustained, including attorney fees.

The respondent may appeal the preliminary order by requesting a
hearing within 30 days. Requesting a hearing stays enforcement of the
preliminary order, except for an order of reinstatement.27


23    29 C.F.R. § 1980.104(b)(2004).
24    § 1980.104(d).
25    Welch v. Cardinal Bankshares Corp., ARB No. 05 064, ALJ No. 2003-SOX-15 (ARB May 31, 2007)
      (case below page 163 FN 38).
26    Reinstatement will not be ordered if the employee is a security risk. § 1980.105(a)(1).
27    1980.105(c).



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         3.       Hearings Before An Administrative Law Judge

SOX Whistleblower claims are tried before an ALJ in accordance with
the procedures of the Office of Administrative Law Judges (―OALJ‖). 18
USC Section 1514A(b)(2004).28       Hearings are conducted ―de novo‖
and the ALJ is not allowed to remand the case to OSHA for further
investigation.29 Formal rules of evidence do not apply.30

         (a)      Discovery

The scope of available discovery for SOX cases before an ALJ is not
settled. The rules of practice and procedure31 provide for ―depositions
upon oral examination or written questions; written interrogatories;
production of documents or other evidence for inspection and other
purposes; and requests for admissions.‖32

                  (b)      Burdens of Producing Evidence

Section 806(b) specifically provides that the evidentiary burdens that
apply in hearings before ALJs shall be as set forth in the Federal
Aviation Whistleblower statute.33 Accordingly, the following burdens
apply:

        When a whistleblower case proceeds to a formal hearing
        before an ALJ, a complainant must demonstrate by a
        preponderance of the evidence that protected behavior
        was a contributing factor in the unfavorable personnel
        action alleged in the complaint. Once a complainant meets
        this burden, he is entitled to relief unless the respondent
        demonstrates by clear and convincing evidence that it
        would have taken the same unfavorable personnel action
        in the absence of any protected behavior.


28       18 USC § 1514A(b) (2004); See 29 CFR § 1980.100-115.
29       § 1980.107(b).
30       § 1980.107(d).
31       29 C.F.R. § 18. The general rule governing subpoenas is found at § 18.24. Section 18.24(a)
provides that ―the Chief Administrative Law Judge or the presiding administrative law judge, as
appropriate, may issue subpoenas as authorized by statute or law upon written application   of   a   party
requiring attendance of witnesses and production of relevant papers, books, documents, or tangible things
in their possession and under their control.‖
32       Id.
33       18 USC § 1514A(b)(2)(C); 49 USC § 42121(b).



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Accordingly, in a Sarbanes-Oxley whistleblower case, complainant
must establish by a preponderance of the evidence that: (1) he
engaged in protected activity as defined by the Act; (2) his employer
was aware of the protected activity;34 (3) he suffered an adverse
employment action, such as discharge; and (4) circumstances exist
which are sufficient to raise an inference that the protected activity
was likely a contributing factor in the unfavorable action. The
foregoing creates an inference of unlawful discrimination. With respect
to the nexus requirement, proximity in time is sufficient to raise an
inference of causation.

                  (c)      Evidence Required to Establish Employer Awareness
                           of Whistle Blowing Activity

In Deremer v. Gulfshore, Inc.,35 the ALJ found that disclosures made
by the audit committee investigating complainant‘s allegations to the
hired law firm were disclosures to ―such other person working for the
employer who has the authority to investigate, discover or terminate
misconduct.‖36 The ALJ, applying a broad interpretation to comport
with the intent of SOX, also found that disclosures made to an external
auditor fit within the ―complaint to a proper person‖ element of a SOX
whistleblower complaint.

In Deremer, the ALJ noted that: a complainant is not required to prove
―direct personal knowledge‖ on the part of the employer making the
final decision that the employee engaged in protected activity. The law
will not permit an employer to insulate itself from liability by creating
―layers of bureaucratic ignorance‖ between a whistleblower‘s direct line
of management and the final decision maker. Therefore, constructive
knowledge of the protected activity can be attributed to the final
decision maker, whether or not he knew of the protected activity.37

                  (d) Contributing Factor to Adverse Employment Action

In Collins v. Beazer Homes USA, Inc.38 the court wrote that:

34       The regulations define the element of employer knowledge more broadly as follows: ―The named
person knew or suspected, actually or constructively, that the employee engaged in the protected
activity.‖ 29 C.F.R. § 1980.104(b)(1)(ii).
35       2006-SOX-2 (ALJ June 29, 2007).

36       See 18 U.S.C. § 1514(A)(1)(c).

37       Id.; see also Platone, supra. Slip op. at 61 62.

38       334 F.Supp.2d 1365 (N.D. Ga. 2004).




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        Under the evidentiary framework, of a SOX whistleblower
        cause of action, plaintiff must also establish that there are
        circumstances which suggest that the protected activity
        was a contributing factor to the unfavorable action.
        (Citations omitted) Under the Whistleblower Protection Act,
        5 U.S.C. § 1221(e)(1), ―[t]he words ‗a contributing
        factor‘… mean any factor which, alone or in connection
        with other factors, tends to affect in any way the outcome
        of the decision‖ and noting that ―[t]his test is specifically
        intended to overrule existing case law, which requires a
        whistleblower to prove that his protected conduct was a
        ‗significant,' ‗motivating,' ‗substantial,' or ‗predominant'
        factor in a personnel action in order to overturn that
        action.".39


The complainant is not required to prove that the protected activity
was the ―primary motive‖ for the termination, only that it was ―a‖
motive.40 While direct evidence is the most receptive form of evidence
relied upon by judges to find a ―contributing factor‖,41 judges have
looked at other factors for assessing whether the protected activity
was a contributing factor. The complainant is not required to prove
―pretext‖42 and evidence of the legality of the reported accounting
practices has been considered an evidentiary factor.43

Close temporal proximity between the employer‘s knowledge of the
protected activity and the adverse employment action has been
recognized as a factor but in and of itself does not establish retaliatory
intent.44 In fact, an Administrative Judge has found that termination
one day after the raising of concerns about inventory accounting
problems was not sufficient.45


39      See also Allen v. Stewart Enterprises, Inc., ARB No. 06-081, ALJ Nos. 2004-SOX-60 to 62 (ARB
        July 27, 2006).
40      Halloum v. Intel Corp., ARB No. 04-068, 2003-SOX-7 (ARB Jan. 31, 2006).
41      Kalkunti v. DVI Financial Services, Inc., 2004-SOX-56 (ALJ July 18, 2005).
42      Klopfenstein v. PCC Flow Technologies Holdings, Inc., ARB No. 04-149, ALJ No. 2004-SOX-11
        (ARB May 31, 2006).
43      Henrich v. Ecolab, Inc., ARB No. 05-030, ALJ No. 2004-SOX-51 (ARB June 29, 2006).
44      Taylor v. Wells Fargo Bank, NA, ARB No. 05-062, ALJ No. 2004-SOX-43 (ARB June 28, 2007).
45      Richard v. Lexmark International, Inc., 2004-SOX-49 (ALJ June 20, 2006). For a discussion on
adverse employment action, see Section III.2.



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         (e)      Clear and Convincing Evidence that Employer Would Have
                  Taken Same Employment Action Regardless of Protected
                  Activity

One of the most persuasive arguments made by employers in SOX
retaliatory discharge cases is proving by ―clear and convincing
evidence‖ that a ―legitimate non-retaliatory business reason‖ existed
for the adverse employment action.46 However, several judges have
found that the employer did not meet the ―clear and convincing‖
burden. In Platone v. Atlantic Coast Airlines Holdings, Inc.,47 the ALJ
found that the employer established a legitimate non-retaliatory
reason for the discharge48 but had failed to meet its burden of showing
by clear and convincing evidence that the employee would have been
discharged in the absence of her protected activity. The ALJ stated:

      It is not enough that the evidence proves that the employer, in
retrospect, made its employment decision on legitimate grounds. Id.

In Kalkunte v. DVI Financial Services, Inc.,49 the ALJ found that the

46       Klopfenstein, 2004-SOX-11 (ALJ July 6, 2004)(complainant‘s violations of employer‘s revenue
recognition policies); Henrich, 2004-SOX-51 (ALJ Nov. 23, 2004)(complainant‘s violation of code of
conduct by encouraging subordinates to falsify inspection records), aff’d, ARB 05-030 (ARB June 29,
2006); Hendrix v. American Airlines, Inc., 2004-AIR-10, 2004-SOX-23 (ALJ Dec. 9, 2004) (complainant‘s
history of conflict and difficulty with interpersonal relations due to ―military style‖); Barnes v. Raymond
James & Assocs., 2004-SIX-58 (ALJ Jan. 10, 2005) (complainant told employer she intended to go to work
for a competitor); Harvey v. Safeway, Inc., 2004-SOX-21 (ALJ Feb. 11, 2005) (complainant ‗s unexcused
absence from work for three consecutive days), aff’d, ARB 04-114 (ARB June 2, 2006); Taylor v. Wells
Fargo, Tex., 2004-SOX-43 (ALJ Feb. 14, 2005) (complainant engaged in series of unprofessional and
contentious actions that resulted in final written warning for breach of ethics, and ultimately termination);
Allen v. Steward Enters. Inc., 2004-SOX-60, 61, and 62 (ALJ Feb. 15, 2005) (reduction in force, including
many persons across the company, in addition to three complainants), aff’d, ARB 05-059 (ARB Aug. 17,
2005); Grant v. Dominion E. Ohio Gas, 2004-SOX-63 (ALJ Mar. 10, 2005) (complainant‘s violation of e-
mail policy by sending vulgar message to company executive); Stojicevic v. Arizona-American Water Co.,
2004-SOX-73 (ALJ Mar. 24, 2005) (complainant‘s inappropriate comments, hostile attitude, and
insubordination, resulting in suspension, and, ultimately, discharge for coming into work while suspended
and refusing to leave the work premises); Trodden v. Overnite Transp. Co., 2004-SOX-64 (ALJ Mar. 29.
2005) (complainant violated company policy by providing information about a subordinate to a third party
outside the company); Granada Entm’t 2004-SOX-74 (ALJ Apr. 1, 2005) (complainant‘s repeated refusal
to work for assigned supervisor constituted insubordination justifying non-renewal of contract).
47       2003-SOX-27 (ALJ Apr. 30, 2004).
48       The employer showed that the employee had failed to disclose the existence of a romantic
relationship with an airline pilot who was an active leader of the pilot‘s union. Id. at 28.
49       2004-SOX-56 (ALJ July 18, 2005).



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employers did not establish by clear and convincing evidence that the
complainant was laid off as a part of a reduction in force (―RIF‖)
because he was the only employee terminated between two broader
RIFs.

        4.       Removal to Federal Court

Section 806(b) provides that if the DOL has not issued a decision
within 180 days of the filing of the complaint, the complainant may
refile his or her claims in the appropriate Federal district court, without
regard for the amount in controversy. Section 806(c) and its
implementing regulation add the requirement that there must be no
―delay due to the bad faith of the complainant.‖50             Under this
provision, an employee has been granted leave to withdraw his DOL
complaint in order to pursue litigation in Federal court because the
complaint had not been resolved within 180 days.51 The filing of a
Federal action after the expiration of 180 days has been found to
deprive the DOL of jurisdiction over the claim.52 Federal courts have
issued orders staying DOL proceedings in cases in which the plaintiffs
filed lawsuits in Federal court when the DOL had not resolved their
claims within 180 days.53

The Act is not clear whether there is a right to a jury trial in SOX
Whistleblower cases brought in Federal court. It has been argued that
the Act‘s provision to afford the complainant ―all relief necessary to
make the employee whole‖ may be construed as providing for
equitable relief and therefore provide a basis for a jury trial. In Fraser
v. Fiduciary Trust Co.54, the court denied the defendant's motion to
strike a jury trial demand for a SOX Whistleblower claim without
prejudice to bring the motion again prior to trial. The court observed
that SOX was silent as to whether a litigant could demand a jury trial,
and that it had only found one published decision which considered
that issue, Murray v. TXU Corp., 03 Civ. 0888 (N.D.Tex. June 7,
2005). In Murray, the court struck the jury demand based in part on
the fact that the plaintiffs claim for punitive damages and reputational

50      29 C.F.R. § 1980.114(a); 18 U.S.C. § 1514A(b)(1)(B) (2004).
51      Willy v. Ameritron Properties, Inc., 2003–SOX—9 (ALJ June 7, 2003) fn 130.
52      Williams v. Borden Chem., fn131.
53      Stone v. Duke Energy Corp., 432 F.3d 320 (4th Cir. 2005) (case below 2003-SOX-12). (holding
that once the qualifying complainant files his complaint with a federal district court under section
1514A(b)(1)(B) of the SOX, jurisdiction vests in the district court and an ALJ no longer has jurisdiction.
See also Corrada v. McDonald‘s Corp., No. 04- 1029 (JAG) (D.P.R Jan. 22, 204).
54      Fraser v. Fiduciary Trust Co., 417 F.Supp.2d 310 (S.D.N.Y. 2006).



                                                   322
damages were not allowed in a SOX action.55


         5.       Arbitration

The Act does not speak to whether it preempts arbitration agreements.
However, the legislative history of the Act as well as several cases,
have determined that arbitration agreements may be enforced to
compel arbitration of SOX Whistleblower claims.56

In Kimpson,57 the plaintiff did not deny the existence of a valid
agreement to arbitrate employment disputes with the defendant, but
argued that he did not consent to arbitrate SOX claims because SOX
was not listed among the statutes stated to be covered by the dispute
resolution policy. The defendant responded that the comprehensive
language of the policy applied to the plaintiff‘s SOX claims. The court
agreed with the defendant. Even though SOX had not yet been passed
when the arbitration contract was entered into, the court found that
the language in the agreement regarding the inclusion of ―any claims
involving rights protected by any Federal statute‖ captured the
plaintiff's SOX claim. Pursuant to the Federal Arbitration Act, 9 U.S.C.
§ 3, the court stayed the district court suit pending the conclusion of


55       But see Mahony v. Keyspan Corp., No. 06CV00554 (E.D.N.Y. Mar. 12, 2007) (case below 2004-
SOX-24) (disagreeing with the Murray court's interpretation and found that § 1514A(c)(2)(C) comprises
an illustrative list of the types of special damages that may be recovered rather than an exhaustive list.
The court indicated that it agreed with the reasoning of the court in Hanna v. WCI Communities, Inc., 348
F.Supp.2d 1332 (S.D.Fla.2004), where the court held that the SOX whistleblower provision includes
damages for loss of reputation).

56       See Guyden v. Aetna Inc., 3:05-CV-1652 (D.Conn. Sept. 25, 2006) in which the Court granted a
motion to compel arbitration because the Plaintiff had signed an employment contract with a provision
calling for mandatory arbitration of employment-related disputes. See also Ulibarri v. Affliated Computer
Services, 2005-SOX-46 and 47 (ALJ Jan. 13, 2006) (observing that the Federal Arbitration           Act        (FAA)
enforces contractual waivers of the right to judicial resolution of disputes in favor of arbitration. It
provides that "[a] written provision in … a contract evidencing a transaction involving commerce to settle
by arbitration a controversy thereafter arising out of such contract … shall be valid, irrevocable, and
enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." The
FAA requires that any proceedings brought upon any issue referable to arbitration under the terms of such
a contract shall be stayed pending arbitration upon application by a party who is not in default         in     the
arbitration. The case, the ALJ found that adequate consideration had been provided for the arbitration
clause, that the clause was not unconscionable, and that the Respondent had not breached the contract.
The ALJ issued an order staying the hearing in order for the parties to enter arbitration).
57       Kimpson v. Fannie Mae Corp., No. 1:06-CV-00018 (D.D.C. Mar. 31, 2007).



                                                    323
arbitration.

        III. IMPORTANT ISSUES CONCERNING SOX CLAIMS

        1.       What Constitutes a Protected Activity Under SOX?

The Act sets forth two separate categories of protected activity.
Section 806(a)(1) protects an employee who voluntarily provides
information that the employee reasonably believes constitutes Federal
mail fraud, bank fraud, wire fraud and/or securities fraud, (hereinafter
the ―SOX Actionable Fraud‖). Section 806(a)(2) protects the employee
who files a proceeding which relates to fraud against shareholders or
assists in such a proceeding filed or about to be filed. These categories
are discussed below.

        (a)      Section 806(a)(1) – Providing Information with Reasonable
                 Belief

Section 806(a)(1) protects the employee who voluntarily provides
information within the employer‘s corporate organization ―to a person
with supervisory authority over the employee (or such other person
working for the employer who has the authority to investigate,
discover, or terminate misconduct.‖ The section also protects the
employee who blows the whistle externally to a Federal regulatory or
law enforcement agency, or to any Member of Congress or any
committee of Congress.‖ A key requirement for the application of this
section is that the employee must have a "reasonable belief‖ that he is
reporting a violation of a SOX Actionable Fraud. This Section has
been the subject of numerous reported opinions from both Federal
courts and the ALJ‘s.

                 i)       The Reasonable Belief Dichotomy

Welch v. Cardinal Bankshares Corp.58 was the first SOX Whistleblower
case to have resulted in a reported ALJ opinion, however it was
recently reversed by the ARB. Welch has provided substantial guidance
on many SOX issues but its most important contribution has been
addressing the issue of ―reasonable belief‖. In Welch, the complainant
was the CFO of the respondent and expressed concerns that the
respondent had overstated income in a quarterly SEC report because it
had improperly treated $195,000 in loan recoveries as income when

58      ARB No. 05 064, ALJ No. 2003-SOX-15 (ARB May 31, 2007) (case below page 163 FN 38), appeal
docketed, No. 07-1684 (4th Cir. July 20, 2007).



                                                  324
they should have been allocated to the ―loan reserve‖ account. The
complainant argued that the error improperly inflated the respondent's
income by 13.7%, and therefore could have materially misled
investors. The ARB reversed the ALJ's finding that this was a protected
activity. The ARB wrote: The ―reasonable belief‖ standard requires
Welch to prove both that he actually believed that the SEC report
overstated income and that a person with his expertise and knowledge
would have reasonably believed that as well. Furthermore, ―[b]ecause
the analysis for determining whether an employee reasonably believes
a practice is unlawful is an objective one, the issue may be resolved as
a matter of law.‖59 The ARB found that an experienced CPA/CFO like
the complainant could not have reasonably believed that the quarterly
SEC report presented a misleading picture of the respondent's financial
condition because whether reported as income or as a credit to
expenses, the fact remained that the respondent had $195,000 that it
previously did not have.

The ARB in Welch also found that reported violations of Generally
Accepted Accounting Principles (―GAAP‖) and Federal Financial
Institutions Examination Council (―FFIEC‖) Accounting Standards were
not ―ipso facto‖ violations of Federal securities laws and therefore the
reporting of such violations was not automatically a protected activity.
The ARB also determined that Welch‘s complaint about insufficient
access to an outside auditor did not constitute a protected activity
because

     Welch did not prove by a preponderance of evidence how
     his unhappiness about access [to the outside auditor]
     constituted a reasonable belief that Cardinal was violating
     or might violate the SOX Actionable Fraud. The ARB stated
     that to be protected, an employee's SOX complaint must
     definitively and specifically relate to the listed categories of
     fraud or securities violation.60

The recent opinion of a New York District Court in Smith v. Corning61
applied a potentially inconsistent analysis to Welch. The court denied
the defendant‘s motion to dismiss the plaintiff's SOX suit under FRCP
12(b)(6). The motion was based on a contention that the plaintiff did
not engage in protected activity when he raised concerns that a


59   Id. at 10.

60   Id. at 13.

61   Smith v. Corning, Inc., No. 06-CV-6516 2007 WL 2120375 (W.D.N.Y. July 12, 2007).



                                             325
software application was being implemented in a way that was not
correctly reporting financial data with resultant impact on the integrity
of quarterly reports. The court rejected the defendants‘ contention that
the complaint was deficient because the plaintiff had not alleged an
actual fraud against shareholders. The court found that § 1514A only
requires a plaintiff to have reasonably believed that the problem
constituted a violation of a provision of Federal law relating to fraud
against shareholders. The court found that the plaintiff's complaint met
this standard insofar as it alleged that the company was implementing
a financial reporting system that was not GAAP compliant, and that the
company was refusing to correct problems with the program, which
would have resulted in the issuance of incorrectly quarterly reports
which could have misled investors. The court also indicated that the
submission of quarterly reports that were not prepared in accordance
with GAAP would also violate a SEC rule.62 The court rejected the
defendants' contention that the plaintiff's complaints were not
protected in that they involved an internal accounting dispute, and
only pertained to a potential for fraud occurring in the future.

      The most recent opinion on protected activity under Section 806
(a)(1) is Allen v. Administrative Review Bd.63 The Fifth Circuit held ―an
employee‘s complaint must ‗definitively and specifically‘ relate to one
of the six enumerated categories found in the Act‖ 64 Further, an
employee must have a reasonable belief that the employer engaged in
one of the enumerated categories, and such reasonable belief is to be
scrutinized under both a subjective and objective standard.65 The Fifth
Circuit found that the objective standard to be applied is similar to that
of Title VII retaliation claims.        However, while the objective
reasonableness of an employee‘s belief is sometimes decided as a
matter of law, if there is a genuine issue of material fact it cannot be.66
The Fifth Circuit noted that an employee‘s mistaken belief an employer
violated one of the six categories is protected if said mistaken belief
was reasonable.67 Of particular note, when dealing with the sixth
category (any provision of federal law relating to fraud against

62       Citing Richards v. Lexmark Int'l, Inc., 2004-SOX-49 (ALJ June 20, 2006).

63       __F.3d__, 2008 WL 171588, (5th Cir. 2008)

64       Id. at *6 (noting the categories are mail fraud, wire fraud, bank fraud, securities fraud, any rule
or regulation of the SEC, and any provision of federal law relating to fraud against shareholders).

65       Id.

66       Id. at *7.

67       Id. at *6.




                                                     326
shareholders), ―the employee must reasonably believe that his or her
employer acted with a mental state embracing intent to deceive,
manipulate, or defraud its shareholders.‖68


                   ii)   Protected Activity Found

Proof of Actual Violation of Securities Laws Not Required - In Grove,69
the complainant complained to management that a new formula,
which increased revenue projections tenfold during a time when the
company was being acquired by another company, could defraud
investors. The ALJ found that, although the record did not establish
that the company recklessly or fraudulently inflated its revenue
forecasts for the purpose of drawing a higher purchase offer from an
acquiring company, the complainant was not required to prove an
actual violation of securities law. Because the complainant was a
salesman with no specialized training or expertise in the area of
corporate acquisitions, and there was no evidence that the
complainant did not actually believe that the revised revenue forecast
overstated expected income, the ALJ did not find it unreasonable for a
person in the complainant's position to believe that the new formula
presented investors with a materially misleading picture of the
company's financial condition. The ALJ thus found that the complainant
engaged in protected activity. The judge in Grove also found that
contact with the SEC in connection with a "reasonable belief of a
violation of securities law‖ was protected even if SEC did not institute
a formal proceeding.

Conducting an Internal Investigation in Response to Allegations
Evidence of a Reasonable Belief - In Johnson,70 the plaintiff had been
hired as a buyer at the defendant's corporate headquarters and was
later promoted to be a planner, in which capacity she complained to
management about (1) the collection of markdown allowances from
vendors, (2) the changing of season codes on older inventory, and (3)
the accounting for the value of inventory. The court rejected the
defendant‘s argument that the plaintiff did not have a reasonable
belief that these practices were illegal because the defendant had
treated the plaintiff's complaints reasonable enough to have warranted
an internal investigation. Thus the internal investigation was evidence

68     Id. at *9

69     Grove v. EMC Corp., 2006-SOX-99 (ALJ July 2, 2007).
70     Johnson v. Stein Mart, Inc., No. 3:06-CV-00341 2007 WL 1796265 (M.D.Fla. June 20, 2007)
(case below 2006—SOX—52).



                                               327
of a reasonable belief.

Complaints of Wire Fraud or Mail Fraud Need Not be Linked to Fraud
Against Shareholders - In Reyna,71 a district court found that reports
of mail or wire fraud need not be linked to fraud against shareholders
to be protected under SOX. Employing principles of statutory
interpretation, the court denied summary judgment holding: The
statute clearly protects an employee against retaliation based upon
that employee's reporting of mail fraud or wire fraud regardless of
whether that fraud involves a shareholder of the company. The court
rejected defendants‘ interpretation that the last phrase of the
provision, ―relating to fraud against shareholders,‖ modifies each of
the preceding phrases in the provision.72

                  iii)     Protected Activity Not Found.

In Platone v. FLYi, Inc.,73 the ARB found that billing complaints do not
rise to the level of a protected activity. The ARB found that SOX ―does
not provide whistleblower protection for all employee complaints about
how a company spends its money and pays its bills.‖ Further, ―when
allegations of mail or wire fraud arise under . . . [section 806], the
alleged fraudulent conduct must at least be of a type that would be
adverse to investors‘ interests.‖74 The ARB‘s decision in Platone
provides significant support for dismissing SOX claims that are based
on employment law issues, such as race discrimination or wage and
hour complaints, which are not directly related to shareholder or
securities fraud. The decision also serves as a reminder to document
the specifics of an employee‘s internal complaint at the time it is first
made.

Miscellaneous - Complaints by an auditor who is merely performing
duties has been found not to be a protected activity unless the auditor
goes beyond assigned duties and reports to upper management.75

71       Reyna v. Conagra Foods, Inc., No. 3:04-CV-00039 (M.D.Ga. June 11, 2007).
72       But see Section III(a)(vi) below.
73       2003-SOX-27 (Sep. 29, 2006); ARB Case No. 04-153.
74       The ARB also emphasized that at the time she complained to her employer, Platone did not claim
that her complaints were based on securities fraud. Rather, this gloss had been added later, once Platone
brought the matter to the DOL. It is an employee‘s report to her employer at the time she complains – not
theories manufactured later – which form the basis for assessing whether the employee engaged in SOX-
protected activity.
75       Robinson v. Morgan Stanley, 2005-SOX-44 (ALJ Mar. 26, 2007). The ALJ detailed the holding of
the ARB in Platone v. FLYi, Inc., ARB No. 04 154 (Sept. 29, 2006), and the Sixth Circuit in Sasse v.



                                                   328
General inquiries about potential illegalities do not ―rise to the level of
providing information [to upper management].‖76 A certain degree of
specificity is required.77 While the complaint must be expressed to
constitute a protected activity78, a formal written complaint is not
necessary.79


                  iv)      Intentional v. Unintentional Fraud.

ALJ decisions have drawn a distinction between complaints about
intentional fraud, which tends to be protected, and unintentional
accounting irregularities or mistakes. ALJ decisions have consistently
held that complaints about unintentional financial mistakes or other
inadvertent conduct does not constitute protected conduct.80


                  v)       Materiality


USDOL, No. 04 3245 (6th Cir. May 31, 2005) (cases below ARB No. 02 077 and ALJ No. 1998 CAA 7), and
summarized the components that the complainant would need to establish in order to prove that she
engaged in protected activity under SOX: First, the report or action must relate to a purported violation of
a federal law or SEC rule or regulation relating to fraud against shareholders. Second, the complainant‘s
belief about the purported violation must be subjectively and objectively reasonable. Third, the
complainant must communicate her concern to either her employer, the federal government, or a member
of Congress. Fourth, the report or complain must involve actions outside the complainant‘s assigned
duties. Slip op. at 115, 115.
76       Fraser, 417 F.Supp.2d 310, 24IER Cases 246 (S.D.N.Y.             2006) (concerns expressed by
investment manager about portfolio strategy not protected); Buca di Beppo, 2004-SOX-8 (ALJ June 15,
2004); Allen v. Stewart Enters., Inc., 2004-SOX-60, -61, and -62 (ALJ Feb. 15, 2005); Dominion E. Ohio
Gas, 2004-SOX-63 (ALJ Mar. 10, 2 2005).
77       Buca di Beppo, 2004-SOX-8 (ALJ June 15, 2004).
78       Henrich v. Ecolab, Inc., ARB 05-030 (ARB May 31, 2006); Trodden v. Overnite Transportation
Co., 2004-SOX-64 (ALJ Mar. 29, 2005).
79       Gonzalez v. Colonial Bank, 2004-SOX-39, at 4 (ALJ Aug. 20, 2004).
80       Allen, 2004-SOX-60, -61, and -62, at 85; Townsend v. Big Dog Holdings, Inc., 2006-SOX-28 (ALJ
Feb. 14, 2006) (generalized allegations of fraud not protected); Levi v. Anheuser-Busch Cos., 2006-SOX-
37 (ALJ May 3, 2006) (general concerns about poor management not protected); Johnson v. Mechanics &
Farmers Bank, 2006-SOX-19 (ALJ June 9, 2006) (concerns that customer of bank may have submitted
fraudulent documents to obtain loan not protected); Gale v. World Fin. Group, 2006-SOX-43 (ALJ June 9,
2006) (complainant who admitted he did not believe employer was committing fraud not protected); Buca
di Beppo, 2004-SOX-8, at 13 (ALJ June 15, 2004); Dominion E. Ohio Gas, 2004-SOX-63, at 39-40 (ALJ
Mar. 10, 2005).



                                                    329
The materiality of intentional fraud has become a factor in recent ALJ
decisions. While the ARB has not ruled on whether Section 806
contains a ―materiality‖ requirement, in Harvey v. Home Depot81 the
ARB ruled that complaints about alleged violations of labor laws was
not a protected activity and stated:

         The mere possibility that a challenged practice could
         adversely affect the financial condition of a corporation, and
         that the effect of the financial condition could in turn be
         intentionally withheld from investors is not enough.82

                     vi)   Latest Decisions on ―Fraud Against Shareholders‖


As stated above, the recent Fifth Circuit decision of Allen v.
Administrative Review Bd83 is instructive concerning the sixth category
of fraud enumerated in the Act (any provision of federal law relating to
fraud against shareholders), ―the employee must reasonably believe
that his or her employer acted with a mental state embracing intent to
deceive, manipulate, or defraud its shareholders‖ for his disclosure to
be considered a protected activity.84

In Deremer v. Gulfmark Offshore Inc.,85 the ALJ observed a split in
authority over whether SOX whistleblower protection is limited to fraud
―against shareholders,‖ and after reviewing the nature of that split,
found that his conclusion was consistent with that of the ARB – that an
allegation of ―shareholder fraud‖ is an essential element of a cause of
action under SOX. The ALJ concluded that materiality was required for
alleged conduct to rise to the level of shareholder fraud.

In cases where allegations of shareholder fraud are based on potential
or actual dissemination of fraudulent information, the ALJs have found
that there must exist a ―substantial likelihood‖ that the disclosure of
the omitted or misstated information would have been viewed by the
reasonable investor as having significantly altered the ‗total mix‘ of

81       ARB 04-114 (ARB June 2, 2006).
82       Most recently the ALJ in Frederickson v. The Home Depot, U.S.A., Inc., 2007-SOX-13 (ALJ July
10, 2007) found that alleged fraudulent policy involving a single store was not of sufficient magnitude to
matter to a reasonable investor.

83       __F.3d__, 2008 WL 171588, (5th Cir. 2008)

84       Id. at *9

85       Deremer, 2006-SOX-2 (ALJ June 29, 2007).



                                                    330
information made available.86 Finally, the ALJ addressed specifically
the issue of internal controls, writing, in securities fraud cases, it has
been observed that inadequacy of internal accounting controls are
probative of scienter [defendant's intent to deceive, manipulate, or
defraud] . . . and can add to the strength of a case based on other
allegations.87 Therefore, a significant deficiency in internal controls, at
least when combined with other significant issues, would constitute a
circumstance likely to be ―viewed by the reasonable investor as having
significantly altered the total mix of information made available.‖ 88


      (b)      Filing a Proceeding or Assisting in a Proceeding Under
               Section 806(a)(2)

In Miles v. Wal-Mart Stores, Inc., the court found that the Plaintiff had
created a geniune issue of material fact as to whether she engaged in
protected activity under SOX where she had provided assistance to the
FBI and an Assistant U.S. Attorney in connection with Wal-Mart's
response to a grand jury subpoena calling for production of documents
concerning union-related labor relations and the investigation of a
former executive for suspected fraud.89 The Plaintiff had objected to
an instruction to shred certain documents being digitized in her labor
relations department which might have been subject to the subpoena.
Wal-Mart argued that the Plaintiff had only aided an "investigation" as
opposed to a "proceeding." The court found that under the
circumstances, a genuine issue of material fact existed as to whether
the Plaintiff engaged in protected activity by her involvement in
responding to the subpoena.90

In Hendrix v. American Airlines, Inc.91, the complainant alleged that he
participated in an investigation of another employee who allegedly had
engaged in fraudulent activity. The ALJ observed that ―[t]he Act
protects an employee who provides information or otherwise assists in
the investigation of fraudulent activity,‖92 and ruled that the


86    Id.

87    Crowell v. Ionics, Inc., 343 F.Supp.2d 1, 12, 20 (D. Mass. 2004).

88    Deremer, 2006-SOX-2 (ALJ June 29, 2007).

89    2008 WL 222694 (W.D.Ark. Jan. 25, 2008).

90    Id.

91    2004-SOX-23; 2004-AIR-10 (ALJ Dec. 9, 2004).
92    Id. at 10 (emphasis in original).



                                                331
complainant had engaged in protected conduct by assisting in the
investigation. In a similar case involving an employee aiding a co-
worker‘s investigation, the employee provided information to the co-
worker about alleged lack of required securities licenses. The co-
worker then reported the employee‘s concerns to management. The
district court found that the employee had engaged in protected
activity, reasoning that the employee had sufficiently alleged that he
―caused information to be provided to persons with supervisory
authority over him,‖ even though the employee had not himself
reported the information.93


2.       What Is Considered Adverse Employment Action?

Section 806(a) provides that an employer subject to the Act may not
―discharge, demote, suspend, threaten, harass, or in any other
manner discriminate against an employee in the terms and conditions
of employment.‖94 Similar statutory language has been interpreted to
require a ―tangible employment action,‖ while others have taken a
more flexible approach.95

In the recent case of Allen v. Stewart Enterprises, Inc.,96 the
Administrative Review Board explained that: a ―tangible job
consequence‖ is one that ―constitutes a significant change in
employment status, such as hiring, firing, failing to promote,
reassignment with significantly different responsibilities, or a decision
causing significant change in benefits.‖ Under the ―detrimental effect‖
test, an employment action is adverse if it is reasonably likely to deter
employees from making a protected disclosure. In McClendon97, the
ALJ relied on the U.S. Supreme Court‘s ruling in a Title VII retaliation
action that, to prove an adverse action, a plaintiff ―must show that a
reasonable employee would have found the challenged action
materially adverse, ‗which in this context means it well might have
dissuaded a reasonable worker from making or supporting a charge of
discrimination.‘‖98

93       Willis v. Vie Fin. Group, Inc., 2004 U.S. Dist. LEXIS 15753 *19-20, 21 IER Cases 1111 (E.D. Pa.
2004).
94       18 USC § 1514A(a)(2004).
95       Hendrix, 2004-AIR-10, 2004-SOX-23 (ALJ Dec. 9, 2004).

96       ARB No. 06-081, ALJ Nos. 2004-SOX-60 to 62 (ARB July 27, 2007).

97       McClendon v. Hewlett Packard, Inc., 2006-SOX-29 (ALJ Oct. 5, 2006).

98       McClendon, slip op. at 76 (citing Burlington Northern & Santa Fe Railway Co. v. White, No. 05-



                                                   332
        (A)     Hostile Work Environment and Constructive Discharge

The McClendon ALJ recognized that a hostile work environment could
be prohibited conduct. The ALJ espoused the standard set forth by the
U.S. Supreme Court in Harris v. Forklift Sys.,99 stating that to establish
a hostile work environment, the conduct must be ―sufficiently severe
or pervasive to alter the conditions of . . . employment and create an
abusive working environment.‖100 The ALJ noted the difference
―between a hostile work environment, which ‗involves repeated
conduct‘ and discrete acts, which ‗are easy to identify . . . [and]
constitute a separate actionable ‗unlawful employment practice.‖101

        (B)     Adverse Employment Action Found

Layoffs/Reorganization- In Hendrix102, the ALJ thoroughly analyzed
discordant administrative decisions relative to the meaning of ―adverse
action‖ under various whistleblower laws, and specifically the concept
of tangible job consequence. She concluded that, although Title VII
decisions are not binding precedent for purposes of a whistleblower
claim, they provide helpful guidance. The ALJ also concluded that she
should look to the law of the circuit in which the claim arises. Because
the instant case alleging violations of SOX and other whistleblower
laws arose in the Tenth Circuit, she applied the expansive definition of
adverse action found in Hillig v. Rumsfeld103, in which the court held
that the fact that unlawful personnel action turned out to be
inconsequential goes to damages, not liability, although the standard
does not encompass mere inconvenience or alteration of job
responsibilities. In a footnote, the ALJ observed that the Sarbanes-
Oxley Act contains language, unlike other whistleblower laws, explicitly
prohibiting threats and harassment – acts which are not necessarily
tangible and not ultimate employment actions. Applying this standard,
the ALJ found that the complainant‘s placement on a lay-off list
constitutes an adverse action, even though the complainant suffered
no tangible consequence as his name was removed before the lay-offs


259, 2006 WL 1698953 (U.S. 2006)).

99      510 U.S. 17, 21 (1993).

100     McClendon at 80 (citing Harris, 510 U.S. 17, 21 (1993)).

101     Id. at 81 (citing to Nat’l Railroad Passenger Corp. v. Morgan, 536 U.S. 101. 114-115 (2002)).

102     Hendrix, 2004-AIR-10, 2004-SOX-23 (ALJ Dec. 9, 2004).

103             381 F.3d 1028 (10th Cir. 2004).



                                                  333
took effect.104

Transfer – In McClendon105, the ALJ ruled that complainant‘s transfer
to an entirely new position was an adverse act.106 The ALJ noted that
complainant had previously discussed with management a transfer to
another department, however, it was in the context of doing the same
type of work he had already been enjoying and succeeding in.
Complainant had only one day to decide whether to accept the new
position and faced placement on the lay-off list if he declined. In
addition, complainant‘s workload decreased significantly and the scope
of complainant‘s new position ―varied unfavorably from the scope of
the position when past employees filled it.‖ 107 Thus, the ALJ ruled that
the transfer of complainant to the new position would dissuade a
reasonable employee from engaging in protected activity, and it
therefore constituted and adverse act under SOX.108

Loss of Job Responsibilities – In Willis109, the employer argued that a
claim based on loss of job responsibilities should be dismissed because
it is not one of the enumerated acts that constitute a violation of the
SOX whistleblower provision. The court, however, held that the
complaint sufficiently alleged a change in employment conditions
within the meaning of the Act.110

Diminution in Authority and Responsibility - In Reines111, the
complainant-CFO alleged that adverse action was taken against her
because she was removed from her IT responsibilities.112 The ALJ held
that the respondent acted adversely under SOX by removing
complainant's sole authority over IT duties.113 The ALJ noted that
whether complainant's IT duties were "peripheral" rather than central

104      Later in the decision, however, the ALJ found that there was no connection between protected
activity and the placement on the lay-off list.
105      McClendon, 2006-SOX-29 (ALJ Oct. 5, 2006).
106      Id. at 80.

107      Id. at 80.

108      Id. at 79-80.
109      Vie Financial Group, Inc., No. Civ. A. 04-0435 (E.D. Pa. Aug. 6, 2004) (available at 2004 WL)

110      Citing Glanzman v. Metro. Mgmt. Corp., 290 F.Supp.2d. 571, 582 (E.D. Pa. 2003) (recognizing
that significantly diminished material responsibilities can constitute a materially adverse change in working
conditions).

111      Reines v. Venture Bank and Venture Financial Group, 2005-SOX-112 (ALJ Mar. 13. 2007)
112      Reines, slip op. at 49-56.
113      Reines, slip op. at 55.



                                                    334
to her role as CFO, as respondent asserted, was immaterial. 114 The
ALJ concluded that "the restriction imposed by [complainant's
supervisor], which represents a diminution in complainant's authority
and responsibility, is the type of action which is "reasonably likely to
deter employees from engaging in protected activity." Here, as in
McClendon, the ALJ used the standard set by the Supreme Court in
Burlington Northern: whether a reasonable employee would be
dissuaded from whistleblowing based on the alleged adverse action.115

        (C)      Action Found Not To Be Adverse

ALJ decisions have found that the following conduct does not
constitute an adverse action: i) work place relocation was not an
adverse action where the new conditions did not affect the
complainants' ability to perform their work and did not significantly
change their employment status;116 ii) removal of complainant‘s status
as an officer of respondent;117 iii)     ordinary tribulations of the
workplace;118 iv) failure to conduct a performance review;119 and v)
refusal to communicate with the complainant.120

        (D)      Litigation Conduct

Allegedly False Statements of Counsel in Prior SOX Case as an
Independent Cause of Action - In Hunter121, the complainant alleged
that certain statements made by the respondent's counsel in a motion
to dismiss filed in an earlier SOX case122 were false and retaliatory
attempts to derail his SOX complaint and to avoid rehiring him and to
blacklist him. The ALJ found that the allegedly false statements were
objected to and were, in part, a basis for a pending appeal of the
decision in the first case. Thus, the ALJ found that the complainant's
allegations were subsumed in the earlier action. The ALJ also found

114     Id. at 54.

115     See id. at 55.

116     See McClendon, 2006—SOX—29 at 80 (ALJ Oct. 5, 2006).
117     Bechtel v. Competitive Technologies, Inc., 2005-SOX-33 (ALJ Oct. 5, 2005).
118     Allen v. Stewart Enterprises, Inc., ARB No. 06-081, ALJ Nos. 2004-SOX-60 to 62 (ARB July 27,
2007; Grove v. EMC Corp., 2006-SOX-99 (ALJ July 2, 2007).
119     Bechtel v. Competitive Technologies, Inc., 2005-SOX-33 (ALJ Oct. 5, 2005); Dolan v. EMC Corp.,
2004-SOX-1 (ALJ Mar. 24, 2004).
120     Harvey v. The Home Depot, Inc., 2004-SOX-77 (ALJ Nov. 24, 2004).
121     Anheuser-Busch, 2006-SOX-108 (ALJ Oct. 18, 2006).

122     2006-SOX-37.




                                                 335
that the alleged false statements did not present an independent
action under SOX because the earlier case had been dismissed as
untimely, there had been no evidentiary development presented to the
ALJ in the prior case, and therefore the fraud or perjury alleged did not
arise in the first action.

Lawsuit to Enjoin Complainant from Violating Confidentiality
Agreement - In Vodicka123, the complainant, who had been a member
of the respondent's board of directors, filed a SOX whistleblower
complaint alleging violation of SOX by the respondent when it filed a
lawsuit seeking injunctive relief in the state of New York against the
complainant on the ground that he had allegedly violated his
confidentiality agreement with the respondent. The ALJ observed that
Section 806(a) of the Act prohibits retaliation against an employee in
regard to the terms and conditions of employment, and that the
implementing regulations at 29 C.F.R. § 1980.102 similarly provide
that a company may not discriminate against any employee with
respect to the employee's compensation, terms, conditions, or
privileges of employment. The ALJ concluded: "Here the lawsuit sought
to enforce the confidentiality agreement by compelling complainant to
return confidential documents to respondent and requiring him not to
disseminate confidential information to other persons. Complainant
has provided no explanation as to how this lawsuit could affect his
ability to obtain future employment or the terms or conditions of such
employment, and I can think of none." The ALJ, therefore, granted
summary decision in favor of the respondent.

3.      Criminal Penalties of Section 1107 of the Act –Retaliation
        Against Informants.

Section 1107 imposes severe criminal penalties124 on ―whoever
knowingly, with the intent to retaliate, takes any action harmful to any
person including interference with the lawful employment or livelihood
of any person, for providing to a law enforcement officer any truthful
information relating to the commission or possible commission of any
Federal offense.125 The section of SOX was codified with other
criminal penalties that specifically allows for ―extraterritorial Federal


123     Vodicka v. DOBI Medical International, Inc., 2005-SOX-111 (ALJ Dec. 23, 2005).
124     The penalties include a fine and/or imprisonment for up to 10 years. Id. Section 1107 has been
found not to create a private cause of action. See In Re Compact Disc Minimum Advertised Antitrust
Litigation, MDL No. 1361 (D.Me.Oct. 2, 2006).
125     18 U.S.C. § 1513(e)(2004).



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jurisdiction.‖126

This Section is not limited to publicly traded employers. It appears to
apply broadly to both individuals and corporations. The Section
prohibits retaliation against persons who provide to a law enforcement
officer ―any truthful information‖ relating to the commission or possible
commission of ―any Federal offense.‖ Thus the information is not
limited to matters involving corporate fraud or accounting abuses but
can involve ―any Federal crime‖.

Since Section 1107 also protects the communication of truthful
information relating to a ―possible‖ commission of a Federal offense
and because of the breadth of Federal crimes,127 this Section could
present many ―land mines‖ for the unwary employer. For example, a
report to a law enforcement official that a co-worker or supervisor
engaged in any of the following activities would appear to be protected
under this Section: (1) willfully creating dangerous working conditions
in violation of OSHA laws; (2) violating one of the multitude of
environmental laws; (3) copying or using software with out
permission;128 (4) storing and/or transmitting indecent material via a
company computer;129        or (5) the destruction of documents in
response to notice of a governmental investigation.130

Another concern for employers should be the risk of defending both a
civil proceeding and a criminal proceeding under the Act, with a
potential early communication to OSHA being the employer‘s first
required statement on the matter. The substantial resources required
to defend against both proceedings simultaneously could result in a
substantial drain on the employer‘s assets.

126      Id at § 1513(d).
127      Including the recently promulgated computer hacking laws and anti-terrorist laws; E.g., Digital
Millenium Copyright Act, 17 U.S.C. §§ 1201-1205 (2004); E.g., Critical Infrastructure Information Act of
2002, 6 U.S.C. §§ 131-134 (2004).
128      See A. Hugh Scott, Intellectual Property Crime: Federal and State law (2002); E.g. Economic
Espionage Act of 1996, 18 U.S.C. § 1905 (2004); See also Katherine Barr et. al. Intellectual Property
Crimes, 40 Am. Crim. L. Rev. 771 (2003).
129      Communications Decency Act of 1996, 18 U.S.C. §§ 1462, 1465, 2422 (2004); Child Online
Protection Act of 1998, 47 U.S.C. § 231 (2004); Child Pornography Prevention Act of 1996, 18 U.S.C. §§
2241, 2243, 2251, 2252, 2256 (2004) (§§ 2251(a) and 2252(a)(5)(B) found unconstitutional as applied to
intra-state production and possession of child pornography when not involved in interstate commerce by
United States v. Matthews, 300 F. Supp. 2d 1220 (N.D. Ala. 2004); § 2256(8)(B) held unconstitutional as
applied to virtual child pornography by United States v. Hilton, 363 F.3d 58 (1st Cir. 2004)).
130      18 U.S.C. § 1519 (2004).



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The final concern resulting from Section 1107 is the location of its
codification at 18 U.S.C. § 1513(e). This section is specifically listed
within the definition ―racketeering activity‖ under the Racketeer
Influenced and Corrupt Organizations Act (―RICO‖).131 The result of
this is that Section 1107 will likely be a basis for asserting civil RICO
claims in a whistleblower case.

            III. THE FUTURE OF THE SARBANES-OXLEY
                 WHISTLEBLOWER ACT.

The intent of the Sarbanes Oxley legislation was to reduce corporate
fraud by publicly traded companies. While the reviews have been
mixed as to whether this has been accomplished132, one thing is clear,
the results of SOX Whistleblower complaints filed have been very
discouraging for the complaining employees. As recently reported,
SOX Whistleblowers rarely win.133 As a result, it appears employees
are more likely to witness questionable or illegal conduct but are
unlikely to report it.134      However the legislation has affected
employers. The cost of defending these claims and the risks that exist
as a result of the Act have been material. Time will tell but the initial
impression is that the Act has had the desired ―chilling‖ effect to some
degree but has not solved all the problems identified. The question is
whether the legislatures are satisfied with the Act. The recent Federal
Whistleblower legislation135 may indicate that modification to the Act
may be in its future.136


131         Section 1107 is codified at 18 USC § 1513(e), which is specifically enumerated in the RICO
statute.
132         See Neil Weinberg, Malfeasance: Corporate Crime Wave Unabated, Forbes, Oct. 16, 2007,
available      at    http://www.forbes.com/business/2007/10/16/corporate-crime-report-cx_nw_1016.html
(discussing the continued rise of corporate fraud in America and elsewhere).
133         See Unfilled Expectations: An Empirical Analysis of Why Sarbanes-Oxley Whistleblowers Rarely
Win, 49 WM. & MARY L. REV. 65 (2007.)

134         Angus Loten, What Enron Didn‘t Teach Us, INC., Jan. 2008,
http://www.inc.com/articles/2008/01/ethics.html (―Among 2,000 public- and private-sector employees
surveyed nationwide, 56 percent of said they had personally seen at least one violation of company ethics
standards, policies of the law in the past year, up from 43 percent in 2003 . . . [and] less than 42 percent
said they reported the incident through company channels.‖).

135         Senate Bill 274 Passed Dec. 17, 2007.
136         On January 28, 2008, President Bush signed into law the National Defense Authorization Act for
Fiscal Year 2008 (H.R. 4986), which includes a provision protecting employees of defense contractors who
blow the whistle on contracting fraud. Section 846 amends 10 U.S.C. § 2409 to protect employees who



                                                     338
disclose to Congress, an Inspector General, the Government Accountability Office, or a Department of
Defense employee responsible for contract oversight or management ―information that the employee
reasonably believes is evidence of gross mismanagement of a Department of Defense contract or grant, a
gross waste of Department of Defense funds, a substantial and specific danger to public health or safety,
or a violation of law related to a Department of Defense contract (including the competition for or
negotiation of a contract) or grant.‖


         A complainant must be filed with the Inspector General (IG) of an agency, and unless the IG
determines that the complaint is frivolous, the IG will conduct an investigation. Once the complainant
exhausts administrative remedies, the complainant may bring a de novo action in federal court and is
entitled to a jury trial. Remedies at the administrative level and in federal court include reinstatement,
back pay, compensatory damages, and attorney fees and costs.




                                                     339
                              APPENDIX A

(a) WHISTLEBLOWER PROTECTION FOR EMPLOYEES OF PUBLICLY
TRADED COMPANIES - No company with a class of securities
registered under section 12 of the Securities Exchange Act of 1934, or
that is required to file reports under section 15(d) of the Securities
Exchange Act of 1934, or any officer, employee, contractor,
subcontractor, or agent of such company, may discharge, demote,
suspend, threaten, harass, or in any other manner discriminate
against an employee in terms and conditions of employment because
of any lawful act done by the employee -


     (1)   to provide information, cause information to be provided,
           or otherwise assist in an investigation regarding any
           conduct which the employee reasonably believes
           constitutes a violation of sections 1341[Mail Fraud],
           1343[Wire Fraud], 1344 [Bank Fraud], or 1348[Securities
           Fraud], any rule or regulation of the Securities and
           Exchange Commission, or any provision of Federal law
           relating to fraud against shareholders, when the
           information or assistance is provided to or the
           investigation is conducted by -
           (A)   a Federal regulatory or law enforcement agency;

           (B) any member of Congress or any committee of
           Congress; or

           (C) a person with supervisory authority over the
           employee (or such other person working for the employer
           who has the authority to investigate, discover, or
           terminate misconduct); or

     (2)   to file, cause to be filed, testify, participate in, or otherwise
           assist in a proceeding filed or about to be filed (with any




                                   340
knowledge of the employer) relating to an alleged violation
of sections 1341[Mail Fraud], 1343 [Wire Fraud], 1344
[Bank Fraud], or 1348 [Securities Fraud], any rule or
regulation of the Securities and Exchange Commission, or
any provision of Federal law relating to fraud against
shareholders. 18 U.S.C. § 1514A.




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