Whistleblower Law Blog

March Whistleblower Rewards Include $500,000 in Cargo Price-Fixing Case

April 01, 2014

The U.S. Department of Justice announced settlements in three large qui tam cases during March — including a price-fixing case where the whistleblower earned a half-million-dollar reward.

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Supreme Court Says SOX Can Fit Almost Anyone

March 05, 2014

NOTE: A version of this post first appeared on Law360.com.  The author, R. Scott Oswald, was counsel of record on an amicus curiae brief filed in this case.

In deciding Lawson v. FMR LLC, the first whistleblower case they have heard under the Sarbanes-Oxley Act (SOX), the justices of the U.S. Supreme Court agreed that the law’s ambiguous anti-retaliation provision offered two alternatives, both somewhat unappealing:

• Either it doesn’t protect a large class of whistleblowers — in many cases, the people most likely to discover financial wrongdoing;

• Or it protects virtually anyone hired by a publicly traded company or by its employees, either directly or indirectly, and forbids reprisal for a huge range of fraud reports.

Led by Justice Ruth Bader Ginsburg, a 6-3 majority unflinchingly chose the broader interpretation, instantly giving SOX “a stunning reach,” in the words of a dumbfounded dissent by Justice Sonia Sotomayor.

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First Circuit Says Title VII Offers Workers a Broad Shield

February 19, 2014

A federal appeals court ruled that Title VII of the Civil Rights Act of 1964 offers employees broad protection against reprisal when they oppose workplace discrimination — even if they didn’t originally claim that an employer’s bias violated Title VII.

Saying it “cannot accept” a lower court’s dismissal of a retaliation claim by a female firefighter in Puerto Rico, the U.S. Court of Appeals for the First Circuit found no merit in the idea that Title VII covers only retaliation against complaints citing that law.

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Burrage v. U.S. — Can a Heroin Dealer Help to Clarify Whistleblower Law?

February 12, 2014

By R. Scott Oswald

It’s rare for a criminal appeal — let alone the appeal of a heroin dealer’s sentence for his client’s ill-fated drug binge — to guide our understanding of whistleblower protection laws.

Yet there, on January 27, was the U.S. Supreme Court’s unanimous judgment in Burrage v. United States, a mandatory-minimum drug case that ended up parsing the retaliation provisions of Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), and more.

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Obama Administration Asks Supreme Court to Review MacLean Decision

January 31, 2014

The Obama administration asked the U.S. Supreme Court to review a lower court’s 2013 ruling that a former federal air marshal could claim he was illegally fired for leaking sensitive information to the media.

The case, MacLean v. Department of Homeland Security, raises technical — but critically important — questions about the scope of the Whistleblower Protection Act (WPA), which forbids most retaliation against federal employees who disclose suspected illegal or dangerous acts by the government.

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The Top Ten Whistleblower Decisions of 2013: Part 1

January 14, 2014

For whistleblowers and their advocates, 2013 was a whipsaw year: Big advances followed sharp letdowns in quick rotation — sometimes from the same source. (Ahem, Supreme Court and White House.)

Plus there was the Snowden sideshow. But since NSA leaker Edward Snowden was never a real whistleblower — he acted outside the law and fled the consequences — his headline-grabbing revelations taught us no useful legal lessons.

Instead, the true news of 2013 was choppy-but-clear progress toward more employee-friendly readings of federal whistleblower laws. After two years of success at the administrative level, retaliation victims started getting their day in ever-higher courts. The U.S. Supreme Court put a cherry on the trend by hearing arguments in Lawson v. FMR LLC, its first whistleblowing case under the crucial Sarbanes-Oxley Act (SOX).

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Justices Seek Middle Ground in Whistleblower Case

November 20, 2013

NOTE: A version of this post first appeared on Law360.com.  The author, R. Scott Oswald, was counsel of record on an amicus curiae brief filed in this case.

In oral arguments for the first whistleblower case they have heard under the Sarbanes-Oxley Act (SOX), justices of the U.S. Supreme Court quickly locked onto the important issue: How to interpret SOX’s anti-retaliation provisions without gutting the law — or expanding it without limit.

Led by Justice Stephen Breyer, the hour-long discussion on November 12 — here’s the official transcript — paid scant attention to the most extreme formulations of both sides in Lawson v. FMR LLC. Instead the Court seemed to spend its time groping toward a middle ground that would mostly favor employees.

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After Nassar: Title VII Retaliation Claims Are Tougher — But Still Viable

November 04, 2013

This June, in a blistering dissent from the bench, Justice Ruth Bader Ginsburg decried the U.S. Supreme Court’s “misguided judgment” in University of Texas Southwestern Medical Center v. Nassar and called on Congress to restore to employees the rights stripped by a decision that “defies logic.”

A law to reverse Nassar certainly would be welcome, but it’s not the sole hope for employee advocates. True, Nassar makes it harder to prove that an employer’s action amounted to unlawful retaliation against a whistleblowing employee under Title VII of the Civil Rights Act of 1964.

But, Justice Ginsburg’s pessimism notwithstanding, it’s hardly fatal to such a claim.

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SEC Makes Another Whistleblower Payout — This Time at Maximum 30%

October 31, 2013

The U.S. Securities and Exchange Commission (SEC) announced its second whistleblower award in a month, saying it will give the maximum 30% share of penalties in an unidentified case to a tipster who helped in the enforcement action.

Coming after a huge $14 million award earlier in October, the more modest payout of more than $150,000 suggests that the SEC’s whistleblower office is systematically nailing all of its prescribed metrics: Successive announcements have emphasized payout speed (payment in August on an award made in June); payout size (the $14 million award); and, here, payout percentage.

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Federal Judge Rejects Asadi Limits on Whistleblower Protection

October 21, 2013

A federal judge ruled that the Dodd-Frank Act protects whistleblowers from retaliation even if they’re punished by an employer before bringing their concerns to the Securities and Exchange Commission (SEC).

The ruling is the first explicit repudiation of July’s high-profile Asadi decision by the U.S. Court of Appeals for the Fifth Circuit, which held that Dodd-Frank starts protecting employees only after they report corporate misdeeds to the SEC.

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