On March 5, 2015, the Occupational Health and Safety Administration (“OSHA”) issued its “Final Rule” establishing the procedures for handling retaliation complaints brought under Section 806 of the Sarbanes-Oxley Act (“SOX”). Section 806, as amended by Dodd-Frank, protects employees of publicly traded companies, as well as employees of contractors, subcontractors, and agents of

By John F. Fullerton III

On January 26, 2015, in an issue of first impression at the appellate level, the United States Court of Appeals for the Fourth Circuit held that a federal catch-all four year statute of limitations applies to whistleblower retaliation claims filed in federal court under Section 806 of the Sarbanes-Oxley Act

By John F. Fullerton III and Jason Kaufman

In its recent decision in Santoro v. Accenture Federal Services, LLC [pdf], the Fourth Circuit Court of Appeals has joined the Fifth Circuit [pdf] in narrowly interpreting the prohibition against predispute arbitration agreements in the Dodd Frank Wall Street Reform and Consumer Protection Act of

By John F. Fullerton III and Jason Kaufman

Almost four years after it was enacted in 2010, the full impact of the Dodd Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”) on the enforceability of predispute arbitration agreements is not completely clear.  Some whistleblower retaliation claims are still subject to mandatory arbitration agreements, while

The Supreme Court has opened up an enormous pool of potential whistleblower claimants against employers who might not otherwise be covered by the Sarbanes-Oxley Act of 2002 (“SOX”). Reversing the First Circuit Court of Appeals, the Supreme Court has held, in Lawson v. FMR (pdf), that the SOX whistleblower protection provisions set forth

By John F. Fullerton III

A New York federal district court has become the second court to hold that the Dodd-Frank anti-retaliation provision, 15 U.S.C. § 78u-6(h)(1)(a), which prohibits retaliation against a whistleblower who makes disclosures required or protected by the Sarbanes-Oxley Act, among other laws, does not apply extraterritorially.  In Meng-Lin Liu v. Siemens

By:  John F. Fullerton III

On March 5, 2013, the U.S. Second Circuit Court of Appeals clarified the burden-shifting framework applicable to whistleblower retaliation claims under Section 806 of the Sarbanes-Oxley Act, 18 U.S.C. § 1514A.  In Bechtel v. Administrative Review Board et al., (pdf), the Court issued a decision, consistent with prior decisions of

by Allen B. Roberts, Frank C. Morris, Jr., and Michael J. Slocum

In what has been reported to be the first decision permitting a retaliation claim under the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (“Dodd-Frank”) to survive dismissal, the U.S. District Court for the District of Connecticut (“Court”) has adopted a broad view of who qualifies as a “whistleblower” under that law. The Court rejected an employer’s request for a literal construction of Dodd-Frank’s definition and protection of whistleblowers, and instead relied upon what it saw as an ambiguity in the statutory language to endorse the Security and Exchange Commission’s (“SEC” or “Commission”) Final Rule implementing the whistleblower provisions of Dodd-Frank (“Final Rule”) that liberally expands protections to individuals who do not fit within the statutory definition of “whistleblowers.” In Kramer v. Trans-Lux Corp., 11-cv-01424 (D. Conn. Sept. 25, 2012), the Court declined to dismiss the lawsuit of an employee who claimed a “reasonable belief” of a “possible” securities law violation governed by the Sarbanes-Oxley Act but did not follow explicit statutory procedures for reporting it.

Kramer’s broad interpretation of Dodd-Frank’s whistleblower protection provisions may not carry the day upon review by a Circuit Court of Appeals and in other district courts, but for now, it can be anticipated that employees claiming retaliation under Dodd-Frank will point to Kramer (and to two other supportive district court cases that themselves did not advance for other reasons) in an effort to survive motions to dismiss.

Kramer Claimed That He Was Fired in Retaliation for Disclosing Alleged Violations of Trans-Lux’s Employee Pension Plan to the Company’s Board and the SEC

Richard Kramer had been the Vice President of Human Resources and Administration of Trans-Lux Corp. (“Trans-Lux”) for nearly two decades. Among his responsibilities were managing his employer’s relationship with the firm, overseeing the company’s ERISA-governed employee pension plan, ensuring compliance with applicable laws and regulations, and serving as plan fiduciary.

According to Kramer’s lawsuit, starting in March 2011, he began to voice a number of alleged concerns regarding composition of the pension plan committee, potential conflicts of interest in the administration of plan investment funds, and required approval and filing of plan amendments and reports. After raising his concerns with the CFO to whom he reported and the CEO, Kramer notified the audit committee of Trans-Lux’s board of directors in May 2011, and followed that with a letter to the SEC. Kramer claims that he began receiving letters of reprimand within hours of sending his communication to the audit committee and that a loss of support and stripping of job responsibilities followed. In July 2011, Trans-Lux announced that July 22, 2011, would be the last day of employment for all human resources personnel, including Kramer.

Kramer sued under, among other statutes, Dodd-Frank’s whistleblower protection provisions, codified at 15 U.S.C. § 78u-6, alleging that he had been terminated in retaliation for reporting his concerns about the company’s pension plan.

Continue Reading Dodd-Frank’s Ambiguous Definition of “Whistleblower” Construed Broadly to Favor Employee Protection

In the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank), Congress has crafted an array of bounty awards and whistleblower protections broadly affecting securities, commodities and futures, and consumer financial products firms and those associated with them. Although there was an opportunity to create incentives promoting internal reporting in aid of corporate compliance programs