Whistleblowers: The Legal Landscape and How To Respond

Transcription

1 Whistleblowers: The Legal Landscape and How To Respond

2 Asbestos Hazard Emergency Response Act (AHERA) Clean Air Act (CAA) 24 Federal Whistleblower Laws Protecting Private Citizens Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) Consumer Financial Protection Act of 2010 (CFPA) Consumer Product Safety Improvement Act (CPSIA) Dodd-Frank Energy Reorganization Act (ERA) Federal Railroad Safety Act (FRSA) Federal Water Pollution Control Act (FWPCA) International Safe Container Act (ISCA) Moving Ahead for Progress in the 21st Century 2

3 WA OR NV AZ UT ID MT WY CO NM AK HI TX OK KS NE SD ND MN IA MO AR LA MS AL GA FL SC NC TN KY IL WI MI IN OH VA WV PA NY ME VT NH MA CT RI NJ MD DE CA

4 WA MT ND ME OR ID SD MN WI NY VT NH MA CA NV UT WY CO NE KS IA MO IL MI IN KY OH WV PA VA MD DE RI CT NJ AZ NM OK AR TN SC NC MS AL GA TX LA AK HI FL Montana is not an at-will employment state.

5 WA MT ND ME OR ID SD MN WI NY VT NH MA CA NV UT WY CO NE KS IA MO IL MI IN KY OH WV PA VA MD DE RI CT NJ AZ NM OK AR TN SC NC MS AL GA TX LA AK HI FL Common Law Protection Based On Public Policy

6 WA MT ND ME OR ID SD MN WI NY VT NH MA CA NV UT WY CO NE KS IA MO IL MI IN KY OH WV PA VA MD DE RI CT NJ AZ NM OK AR TN SC NC MS AL GA TX LA AK HI FL Common Law Protection If Employer Requires Unlawful Conduct Common Law Protection Based On Public Policy

7 WA MT ND ME OR ID SD MN WI NY VT NH MA CA NV UT WY CO NE KS IA MO IL MI IN KY OH WV PA VA MD DE RI CT NJ AZ NM OK AR TN SC NC MS AL GA TX LA AK HI FL Common Law Protection If Employer Violates Statute Common Law Protection If Employer Requires Unlawful Conduct Common Law Protection Based On Public Policy

8 No [public] company... may discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee in the terms and conditions of employment because of any lawful act done by the employee 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 section 1341, 1343, 1344, or 1348, 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 investment 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)

9 Lawson v. FMR Corp., 571 U.S. (2014)

10 Lawson v. FMR Corp., 571 U.S. (2014)

11 Lawson v. FMR Corp., 571 U.S. (2014)

12 1341 Mail Fraud 1343 Wire Fraud 1344 Bank Fraud 1348 Securities & Commodities Fraud

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15 WA OR NV AZ UT ID MT WY CO NM AK HI TX OK KS NE SD ND MN IA MO AR LA MS AL GA FL SC NC TN KY IL WI MI IN OH VA WV PA NY ME VT NH MA CT RI NJ MD DE CA

16 WA OR CA NV ID UT MT WY CO ND SD NE KS MN IA MO WI IL IN MI KY OH WV PA VA NY VT NH MD DE ME MA RI CT NJ AZ TN OK NM AR Livingston v. Wyeth, Inc., 520 F.3d 344, 351 n.1 (4th Cir. 2008) MS AL GA SC NC AK HI TX The SOX provision regarding any LArule or regulation of the SEC also refers to regulations prohibiting fraud. To conclude otherwise would absurdly allow a retaliation suit for an employee's complaints about administrative missteps. FL

17 WA OR NV CA ID Bishop v. PCS Admin. (USA), Inc., 2006 U.S. Dist. MT LEXIS 37230, ND at *31(N.D. Ill. 2006). NE MN The phrase relating to fraud against SD shareholders in this provision must be WY read as modifying each item in the series. UT CO KS MO IA WI IL IN MI KY OH WV PA VA NY VT NH MD DE ME MA RI CT NJ AZ TN OK NM AR Livingston v. Wyeth, Inc., 520 F.3d 344, 351 n.1 (4th Cir. 2008) MS AL GA SC NC AK HI TX The SOX provision regarding any LArule or regulation of the SEC also refers to regulations prohibiting fraud. To conclude otherwise would absurdly allow a retaliation suit for an employee's complaints about administrative missteps. FL

18 WA OR CA NV ID UT MT WY CO ND SD NE KS MN IA MO WI IL IN MI KY OH WV PA VA NY VT NH MD DE ME MA RI CT NJ AZ Lockheed Martin v. Admin. Review Board, No (10th Cir. June 4, 2013) Any allegation of suspected fraud is covered by Sarbanes-Oxley, even if it does not relate AKto fraud against shareholders. NM HI TX OK AR LA TN MS AL GA SC FL NC

19 WA OR NV CA ID UT MT WY CO O'Mahony v. Accenture Ltd.,537 F. Supp. 2d 506, 517 (S.D.N.Y.2008) ND SOX clearly MN protects an employee against retaliation regardless of whether the WI misconduct SD relates to shareholder fraud. IA NE IL IN OH WV KS MO KY MI PA VA NY VT NH MD DE ME MA RI CT NJ AZ Lockheed Martin v. Admin. Review Board, No (10th Cir. June 4, 2013) Any allegation of suspected fraud is covered by Sarbanes-Oxley, even if it does not relate AKto fraud against shareholders. NM HI TX OK AR LA TN MS AL GA SC FL NC Reyna v. ConAgra Foods, Inc., 506 F. Supp. 2d 1363, 1382 (M.D. Ga. 2007) The statute clearly protects an employee against retaliation... regardless of whether that fraud involves a shareholder of the company.

20 Reporting suspected misconduct by IRS division was not protected conduct under the Whistleblower Protection Act because plaintiff s job duties included reviewing actions taken by other IRS divisions. Langer v. Dept. of Treas., 265 F.3d 1259 (Fed. Cir. 2001).

21 Federal Courts have held that a person is not engaging in protected conduct under other Federal Whistleblower Laws if he or she is simply fulfilling job duties that require reporting suspected misconduct. Reporting retaliation under the Clean Water Act and Solid Waste Disposal Act was not protected because plaintiff s job duties included prosecuting such violations and he was merely performing his assigned duties. Sasse v. Dept. of Labor, 499 F.3d 773 (6th Cir. 2005).

22 Reversing the Administrative Law Judge, who relied on the Sixth Circuit s Sasse decision, the ARB held that, because SOX protects employees that: provide information... 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) an employee's report does not need to involve actions outside the complainant's assigned duties. Robinson v. Morgan Stanley, 2010 WL (DOL Admin. Rev., 2010).

23 Employee must file a claim with the DOL within 180days of the alleged retaliation. Upon receipt of the complaint, the DOL must provide a copy to the SEC. The DOL investigates the complaint. After receiving the DOL s findings, either party may seek review by an ALJ. Either party may appeal the ALJ decision to the Administrative Review Board. ARB Decisions are appealed to the Circuit Court of Appeals.

24 The DOL can order immediate reinstatement based on nothing more than a finding that there is reasonable cause to believe that a violation has occurred. The DOL investigates the complaint. After receiving the DOL s findings, either party may seek review by an ALJ. Either party may appeal the ALJ decision to the Administrative Review Board. ARB Decisions are appealed to the Circuit Court of Appeals.

25 If the ARB does not issue a final determination within 180 days of when the DOL complaint is made, the whistleblower can file a complaint in federal district court. After receiving the DOL s findings, either party may seek review by an ALJ. Either party may appeal the ALJ decision to the Administrative Review Board.

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27 reinstatement with the same seniority status that the employee would have had, but for the discrimination the amount of back pay, with interest compensation for any special damages sustained as a result of the discrimination, including litigation costs, expert witness fees, and reasonable attorney fees

28 $22,000 awarded to SOX plaintiff for pain, suffering, mental anguish, the effect on her credit, and the humiliation that she suffered. Kalkunte v. DVI Financial Services, Inc., ARB No , ALJ No (ARB Feb. 27, 2009) No punitive damages. Murray v. TXU Corp., 2005 WL , (N.D. Tex. June 7, 2005) No punitive or non-pecuniary damages. Walton v. Nova Info. Sys., 514 F. Supp. 2d 1031, 1035 (E.D. Tenn. 2007) $75,000 to SOX plaintiff for emotional pain and suffering, mental anguish, embarrassment, and humiliation. Brown v. Lockheed Martin Corp., Arb. No , ALJ No SOX (ALJ Jan. 15, 2010) [M]entalanguish damages, future earnings and benefits, and exemplary and punitive damages, not available under SOX as a matter of law. Hemphill v. Celanese Corp., 2009 WL (N.D. Tex. 2009)

29 Employee must file a claim with the DOL within 180days of the alleged retaliation. Upon receipt of the complaint, the DOL must provide a copy to the SEC. The DOL investigates the complaint. After receiving the DOL s findings, either party may seek review by an ALJ. Either party may appeal the ALJ decision to the Administrative Review Board. ARB Decisions are appealed to the Circuit Court of Appeals.

30 Once the DOL is involved: Employee must file a claim with the DOL within 180days of the alleged retaliation. To settle a SOX whistleblower case, the parties to the agreement must obtain the written approval of the DOL. After receiving the DOL s findings, either party may seek review by an ALJ. Upon receipt of the complaint, the DOL must provide a copy to the SEC. Either party may appeal the ALJ decision to the Administrative Review Board. The DOL investigates the complaint. Settlement agreements cannot be entered into unless they are fully reviewed by the DOL and the DOL finds that their terms are in the public interest and are fair, adequate, and reasonable. ARB Decisions are appealed to the Circuit Court of Appeals.

31 Sean McKessy, chief of the SEC's Office of the Whistleblower, declared at industry conferences that his office will be targeting companies that have entered into severance agreements requiring, among other things, confidentiality from the departing employee in exchange for payment. nothing in this Agreement shall be construed to prohibit you from reporting alleged improper or unlawful conduct to, or participating in any investigation or proceeding conducted by any federal or state government agency or self-regulatory organization.

32 Require an acknowledgement that the investigation occurred and either: (1) The employee has received the results of the investigation and is no longer concerned; or (2) The employee has reviewed the remedial measures and agrees that his or her concerns have been properly addressed

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34 No employer may discharge, demote, suspend, threaten, harass, directly or indirectly, or in any other manner discriminate against, a whistleblower in the terms and conditions of employment because of any lawful act done by the whistleblower in making disclosures that are required or protected under the Sarbanes-Oxley Act of 2002 (15 U.S.C et seq.), the Securities Exchange Act of 1934 (15 U.S.C. 78a et seq.), including section 10A(m) of such Act (15 U.S.C. 78f(m)), section 1513(e) of title 18, United States Code, and any other law, rule, or regulation subject to the jurisdiction of the Commission.

35 WA OR ID Banko v. Apple Inc.,No. 13-cv-2977, 2013 WL , at *6 (N.D. Cal. Sept. 27, 2013) Under NV Dodd-Frank, employee must report to SEC to be UT a whistleblower. CA AZ MT WY ND SD NE MN Wagner CO v. Bank of Am. Corp., No. 12-cv-00381, 2013 WL , KS at *4 (D. Colo. July 19, 2013) Must report to the SEC to be considered a whistleblower. OK NM IA MO AR Liu v. Siemens, A.G., 763 F.3d 175 (2 nd Cir. Aug. 14, 2014), Dodd Frank does not apply extra-territory to oversees employees of US publicly traded companies WI IL IN TN MI KY OH RI PA CT Kramer v. Trans-Lux Corp., NJ Case No. 11-CV-1424, DE (D. Conn. Sept. WV 25, 2013); employees need not report direct VA to the SEC MD SC NC NY VT NH ME MA MS AL GA AK HI Asadi v. G.E. Energy, TX LLC, 720 F.3d 620 (5th Cir. 2013) The employee LA must actually report to the SEC FL

36 A Whistleblower can file a Dodd-Frank claim in District Court, so long as it is no more than: six years after the violation; or three years after facts material to the right of action are known or reasonably should have been known by the employee. In any event, no action may be brought more than 10 years after the date of the violation.

37 Sarbanes- Oxley Dodd- Frank reinstatement with the same seniority status that the employee would have had, but for the discrimination reinstatement with the same seniority status that the individual would have had, but for the discrimination the amount of back pay, with interest 2 times the amount of back pay otherwise owed to the individual, with interest compensation for any special damages sustained as a result of the discrimination, including litigation costs, expert witness fees, and reasonable attorney fees compensation for litigation costs, expert witness fees, and reasonable attorneys fees

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42 Though Mr. Birkenfeld s$104 million award is far less than the billions he sought, its sheer size more than $4,600 for every hour he spent in prison could spur a surge in new whistle-blower complaints.

43 WA OR NV CA ID UT MT WY CO ND SD NE KS MN IA MO WI IL IN MI KY Liu v. Siemens, A.G., 763 F.3d 175 (2 nd Cir. Aug. 14, 2014), Dodd Frank does not apply extra-territory to oversees ME employees of US publicly VT traded companies NH NY MA OH WV PA VA MD DE RI CT NJ AZ NM OK AR TN SC NC MS AL GA TX LA AK HI FL

44 WA OR NV CA ID UT MT WY CO ND SD NE KS MN IA MO WI IL IN MI KY Liu v. Siemens, A.G., 763 F.3d 175 (2 nd Cir. Aug. 14, 2014), Dodd Frank does not apply extra-territory to oversees ME employees of US publicly VT traded companies NH NY MA OH WV PA VA MD DE RI CT NJ AZ NM OK AR TN SC NC MS AL GA TX LA AK HI FL

45 WA OR NV CA ID AZ UT MT WY CO NM ND SD NE KS MN IA MO WI IL IN NC TN OK focus than the ARanti-retaliation provisions, SC which are MI KY Liu v. Siemens, A.G., 763 F.3d 175 (2 nd Cir. Aug. 14, 2014), Dodd Frank does not apply extra-territory to oversees ME employees of US publicly VT traded companies NH NY MA OH WV we do not find that decision controlling here; the whistleblower provisions have a different Congressional PA VA MD DE RI CT NJ generally focused on preventing retaliatory employment MS AL GA actions and protecting the employment relationship. TX LA AK HI FL

46 The Complaint Closure Investigate The Report

47 The Complaint Closure Investigate The Report

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53 4/6/14 Jane Doe 4122 Church St. Ann Arbor, MI Dear Jane: Thank you for raising your concerns about certain tools and machines that Binford Tools recently sent to North Korea and whether Binford has complied with the Bureau of Industrial Safety export rules. This is a serious concern and Binford will investigate this issue and, if necessary, take any appropriate corrective measures. Binford will be conducting an internal investigation. In the next few weeks, we will ask you to meet the company so that we can understand your concerns. We will be conducting other interviews and reviewing important documents. Once the investigation is complete, we will let you know what we discovered and whether any changes to our policies are necessary. Binford truly appreciates your commitment to the company and your willingness to speak up when you think a problem exists. If you have any questions or concerns as this investigation proceeds, please call me directly at (248) Sincerely, Jeff Feeger Binford Tools 53

54 4/6/14 Jane Doe 4122 Church St. Ann Arbor, MI Dear Jane: We have received your allegations and Binford Tools is committed to complying with all applicable laws and regulations. Please be advised that some of the issues you raised concern Binford s Confidential and Proprietary Information and any disclosures that violate company policies may lead to disciplinary action, including termination. Binford will investigate this matter and take any appropriate action it deems necessary. Sincerely, Jeff Feeger Binford Tools 54

55 4/6/14 Jane Doe 4122 Church St. Ann Arbor, MI Dear Jane: We have received your allegations and Binford Tools is committed to complying How with did all it feel to applicable laws and regulations. Please be advised that some of the issues you have raised the Company concern Binford s Confidential and Proprietary Information and any disclosures tell that you violate to go fly a company policies may lead to disciplinary action, including termination. kite? Binford will investigate this matter and take any appropriate action it deems necessary. Sincerely, Jeff Feeger Binford Tools Arbitrator 55

56 The Complaint Closure Investigate The Report

57 We need a transparent investigation that shows we acted in good faith. We cloak the entire investigation with privilege in case there is an SEC or DOJ investigation. Employment Counsel Regulatory Counsel

58 Privileged Communications What do we do now? First, I think that Attorney-Client Relationship Chairman of the Board Counsel

59 I ll need to ask you a few questions. Counsel Employee

60 The Court held that because [t]he communications at issue were made by Upjohn employees to counsel for Upjohn acting as such, at the direction of corporate superiors in order to secure legal advice from counsel, the communications must be protected against compelled disclosure. Upjohn Co. v. United States, 449 U.S., 383 I ll need to ask you a few questions. Counsel Employee

61 The Court held that because [t]he communications at issue were made by Upjohn employees to counsel for Upjohn acting as such, at the direction of corporate superiors in order to secure legal advice from counsel, the communications must be protected against compelled disclosure. Upjohn Co. v. United States, 449 U.S., 383 I ll need to ask you a few questions. Investigation Is At the Direction Of Counsel (Retained to investigate and provide legal advice) + UpJohn Warning ( We represent your employer, not you ) Counsel Employee

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63 Conducting An Investigation

64 Conducting An Investigation A summary Letter Excel Witness from of the Counsel charts interview analyzing Assessing summaries with mental shipments Risk impressions

65 Conducting An Investigation A summary Excel Witness of the charts interview analyzing summaries with mental shipments impressions Letter from Counsel Assessing Risk

66 Conducting An Investigation A summary Excel of the charts interview analyzing shipments with mental impressions Witness interview summaries

67 Conducting An Investigation A summary of the interview with mental impressions

68 Conducting An Investigation Excel charts analyzing shipments

69 Conducting An Investigation Most jurisdictions recognize that when a party waivesthe attorney-client privilege, that generally waives privilege for all other privileged communication on the same subject, i.e., even work product. A number of jurisdictions have held that when a party waives privilege applicable to opinion work product, that waiver is limited to the actual document disclosed. Waiver of fact work product waives the workproduct privilege to as to all other fact work product on the same subject. The waiver does not apply upstream to opinion work product or attorneyclient privileged materials on the same subject.

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73 John, I wanted to talk with you about your performance issues. Well, I m concerned this is because I have complaining about our accounting practices Manager Employee

74 John, I wanted to talk with you about your performance issues. Well, I m concerned this is because I have complaining about our accounting practices Manager Employee

75 John, I wanted to talk with you about your performance issues. Manager/HR Handle Performance Issues Well, I m concerned this is because I have complaining about our accounting practices Legal/Compliance Handle Whistleblower Manager Employee

76 John, I wanted to talk with you about your performance issues. Manager/HR Handle Performance Issues If somebody gets in your face and calls you a c@ $* r, I want you to be nice Well, I m concerned Ask him to walk, this is be because nice, if I he have won't walk, walk him, but complaining be nice, If you about can't walk him, one of the others our will accounting help you and you will both be nice... practices Legal/Compliance Handle I want you to remember, that it's the job, it's nothing personal. Whistleblower Road House 1989 Manager Employee

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80 JANE SANDLER SJM, Inc. COMPLAINT

81 JANE SANDLER SJM, Inc. COMPLAINT 34. Plaintiff reported to Defendant that fellow in-house counsel Mr. Smith revealed to her that Defendant was in violation of federal regulations because it does not comply with legal obligations of the Federal Acquisition Regulation System. 35. Plaintiff further reported suspected violations of the False Claims Act as told to herbymr.smith.

82 JANE SANDLER SJM, Inc. COMPLAINT 34. Plaintiff reported to Defendant that fellow in-house counsel Mr. Smith revealed to her that Defendant was in violation of federal regulations because it does not comply with legal obligations of the Federal Acquisition Regulation System. Under the ABA Model Rules a lawyer can reveal privileged information to plead protected activity. ABA Comm. on Ethics and Prof'lResponsibility, Formal Op. No (2001). 35. Plaintiff further reported suspected violations of the False Claims Act as told to herbymr.smith.

83 JANE SANDLER SJM, Inc. COMPLAINT 34. Plaintiff reported to Defendant that fellow in-house counsel Mr. Smith revealed to her that Defendant was in violation of federal regulations because it does not comply with legal obligations of the Federal Acquisition Regulation System. Because the rule also requires a lawyer to make efforts to minimize disclosure, the employer may require filing under seal. Kennedy v. Gulf Coast Cancer & Diagnostic Ctr. at Southeast, Inc.,326S.W.3d352, 357(Tex.Ct.App.2010). 35. Plaintiff further reported suspected violations of the False Claims Act as told to herbymr.smith.

84 JANE SANDLER SJM, Inc. COMPLAINT 34. Plaintiff reported to Defendant that fellow in-house counsel Mr. Smith revealed to her that Defendant was in violation of federal regulations because it does not comply with legal obligations FILED of UNDER the Federal SEAL Acquisition Regulation System. Because the rule also requires a lawyer to make efforts to minimize disclosure, the employer may require filing under seal. Kennedy v. Gulf Coast Cancer & Diagnostic Ctr. at Southeast, Inc.,326S.W.3d352, 357(Tex.Ct.App.2010). 35. Plaintiff further reported suspected violations of the False Claims Act as told to herbymr.smith.

85 The Complaint Closure Investigate The Report

86 7/1/14 Jane Doe 4122 Church St. Ann Arbor, MI Dear Jane: Binford has completed its investigation into the issues you raised regarding the North Korean grinder shipments. A courtesy copy of the report is attached. As you ll see from the investigation, the company has determined that Binford does not need to label grinders shipped to North Korea as AT (controlled for anti-terrorism purposes) industrial tools. Because the grinders cannot be modified for any use other than machining the outside diameter of aluminum can press tools, Binford has been properly labeling the grinders as EX (not controlled for any purpose). Again, we appreciate your raising this issue to Binford s attention and thank you for your vigilance. If you have any further concerns, please feel free to contact me. Sincerely, Jeff Feeger Binford Tools

87 We conducted a through investigation and determined that it was not meritorious. We found an issue but we corrected it promptly.

88 An Ethics Resource Center survey found that 96 per cent of whistleblowers first make their disclosures within the Company, instead of breaking ranks.

89 Whistleblowers: The Legal Landscape and How To Respond