Whistleblower Watch

Whistleblower Watch

Reports and Analysis of Developments in Whistleblower Law

Category Archives: Whistleblower Retaliation

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Contractor Whistleblower Protections Are Here to Stay

Posted in Legislation, Whistleblower Retaliation
President Obama has signed Public Law 114-261, which makes permanent the current government contractor whistleblower protection pilot program and standardizes its protections across agencies. Read more about this law, as well as best practices and current developments in defending whistleblower reprisal investigations run by Offices of Inspectors General, here.… Continue Reading

District Court finds SEC Regulation on Dodd-Frank Not Entitled To Deference on Whistleblower Protections

Posted in Dodd-Frank Act (Dodd-Frank), Whistleblower Retaliation
Another federal court has joined the Fifth Circuit on one side of a circuit court split, rejecting the SEC’s interpretation that a whistleblower need not report potential Dodd-Frank Act violations to the SEC to gain protection under the anti-retaliation provisions of the Dodd-Frank Act. Federal District judge Thomas A. Varlan of the Eastern District of… Continue Reading

Second Circuit Creates Circuit Split Over Internal Whistleblowers

Posted in Dodd-Frank Act (Dodd-Frank), Securities & Exchange Commission (SEC), Whistleblower Retaliation
The Second Circuit ruled in Berman v. Neo@Ogilvy LLC that a whistleblower whose employment was terminated after he raised concerns internally at his company, rather than filing a formal complaint with the SEC, was protected from retaliation under the Dodd-Frank Act. While recognizing that the statutory protections do not clearly cover internal complainants, the Second… Continue Reading

“Watch List” Update: Third Circuit Avoids Opining on Protection of Internal Whistleblowers

Posted in Dodd-Frank Act (Dodd-Frank), State Whistleblower Laws, Whistleblower Retaliation
The Third Circuit Court of Appeals recently issued its decision in Safarian v. American DG Energy Inc., a case we have been watching closely. Although the trial court sidestepped the issue, the SEC had filed an amicus curiae brief asking the Third Circuit to hold that the Dodd-Frank Act covers whistleblowers who report their concerns… Continue Reading

Senate Passes Whistleblower Protection (Again)

Posted in Department of Justice (DOJ), Department of Labor (DOL), Whistleblower Retaliation
Last week, the Senate passed legislation to extend whistleblower protections to employees that provide information to federal prosecutors related to criminal violations of antitrust law. As we reported last month, the Criminal Antitrust Anti-Retaliation Act of 2015 (“CAARA”) would protect covered employees from retaliation, and allow them to file complaints with the Secretary of Labor.… Continue Reading

“Watch List” Update: New Jersey Supreme Court Says “Watchdog” Employees Can Be CEPA Whistleblowers; No Special Requirements Imposed

Posted in State Whistleblower Laws, Whistleblower Retaliation
The New Jersey Supreme Court recently ruled that “watchdog” employees should be treated like all other employees under the state’s Conscientious Employee Protection Act (CEPA). In Lippman v. Ethicon, Inc., a case we reported on in January, the New Jersey Supreme Court upheld an intermediate appellate court’s decision that employees with compliance-related job duties, or… Continue Reading

“Watch List” Update: New Jersey Whistleblowers Can Be Prosecuted for Taking Documents

Posted in State Whistleblower Laws, Whistleblower Retaliation
On Tuesday, the New Jersey Supreme Court issued its decision in State v. Saavedra, holding that a whistleblower can face criminal charges for taking sensitive documents from her employer to support her discrimination and retaliation lawsuit. As we have discussed before, Ivonne Saavedra, a former North Bergen Board of Education employee, took hundreds of confidential… Continue Reading

Third Time’s a Charm? Senators Revive Legislation to Protect Whistleblowers in Criminal Antitrust Cases

Posted in Department of Justice (DOJ), Department of Labor (DOL), Whistleblower Retaliation
U.S. Senators Chuck Grassley (R-Iowa) and Patrick Leahy (D-Vermont) recently reintroduced legislation to extend whistleblower protections to employees who provide information to the Department of Justice related to criminal antitrust violations.  If passed, the Criminal Antitrust Anti-Retaliation Act of 2015 (“CAARA”) would protect employees who report such violations from retaliation (such as discharge, demotion, suspension, threats,… Continue Reading

Sixth Circuit Joins Other Courts in Easing Burden for SOX Whistleblowers

Posted in Occupational Health and Safety Administration (OSHA), Sarbanes-Oxley Act (SOX), Whistleblower Retaliation
The Sixth Circuit recently became the third circuit court to lessen the burden for putative SOX whistleblowers in proving they engaged in protected activity. In Rhinehimer v. U.S. Bancorp Investments, Inc., the Sixth Circuit abrogated a prior unpublished decision that required an employee’s complaint to “‘definitively and specifically relate to one of the six enumerated… Continue Reading

New Article Addressing Federal Agency Attacks on Confidentiality Policies and Agreements

Posted in Dodd-Frank Act (Dodd-Frank), Internal Investigations, Securities & Exchange Commission (SEC), Whistleblower Retaliation
Crowell attorneys Tom Gies and Chris Calsyn authored an article for Crowell’s Mining Law Monitor discussing the recent spate of government agency attacks on standard employer confidentiality policies and agreements.  The SEC in particular claims that such policies and agreements may impermissibly stifle putative whistleblowers from reporting their concerns to appropriate government agencies.  The article… Continue Reading

Fourth Circuit Revives FCA Retaliation Claims Based on Triple Canopy Principles

Posted in False Claims Act (FCA), Whistleblower Retaliation
On Thursday, the Fourth Circuit issued an unpublished opinion in Young v. CHS Middle East that reversed and remanded the dismissal of two whistleblowers’ False Claims Act (FCA) retaliation claims against a U.S. Department of State civilian medical services subcontractor. The reversal was based in part on the Fourth Circuit’s recent adoption of the “implied certification”… Continue Reading

Heightened Notice Presumption Still Applicable After Amendments to FCA Retaliation Statute

Posted in False Claims Act (FCA), Whistleblower Retaliation
Several commentators have cited the recent decision in Mikhaeil v. Walgreens (E.D. Mich. Feb. 24, 2015) as suggesting that the amendments to the anti-retaliation provision of the False Claims Act (FCA) may preclude a defense previously available in FCA retaliation cases.  But any reports about the demise of the “heightened notice presumption” are greatly exaggerated .… Continue Reading

SEC Announces Whistleblower Award in First Retaliation Enforcement Action

Posted in Dodd-Frank Act (Dodd-Frank), Securities & Exchange Commission (SEC), Whistleblower Retaliation
The SEC recently announced its first award under the Dodd-Frank anti-retaliation regulations.  The whistleblower alleged that he was demoted and stripped of his authority after his employer, Paradigm Capital Management, Inc., learned that he complained to the SEC that Paradigm engaged in improper trading practices.  The whistleblower will receive $600,000.  This amount equals 30 percent of… Continue Reading

Maryland Legislature Passes Revised State False Claims Act

Posted in State Whistleblower Laws, Whistleblower Retaliation
On Wednesday, the Maryland House of Delegates voted 89 to 51 to pass the Maryland False Claims Act, which will greatly expand Maryland’s false claims law beyond its current limited application to healthcare-related false claims, such as Medicaid fraud. The Act will now allow individuals who have knowledge of any false claims made to Maryland… Continue Reading

State Department OIG Issues Report on the Use of Confidentiality Agreements

Posted in Whistleblower Retaliation
On March 30, 2015, the Office of the Inspector General for the State Department issued a report on the use of confidentiality agreements by the thirty highest-grossing State Department contractors.  While none of the companies had policies that were “overly restrictive,” the OIG found that that 13 of the contractors had policies that contained provisions… Continue Reading

SEC Claims Employer’s Confidentiality Agreement Muzzles Whistleblowers; Orders Change to Agreement and $130,000 Fine

Posted in Internal Investigations, Securities & Exchange Commission (SEC), Whistleblower Retaliation
The SEC issued a cease and desist order to KBR, Inc. this week requiring the company to revise the confidentiality agreement it insists witnesses sign during internal investigations. The SEC also imposed a $130,000 fine. This announcement comes on the heels of a recent report that the SEC is scrutinizing non-disclosure, confidentiality and other agreements to determine… Continue Reading

Hotline Reports and Substantiated Whistleblower Retaliation Claims on the Rise

Posted in Internal Investigations, Whistleblower Retaliation
An analysis of hotline data by ethics and compliance firm NAVEX Global reveals a marked increase in hotline reports and verified whistleblower retaliation claims in 2014.  The 2015 Ethics & Compliance Hotline Benchmark Report, based on data compiled from 2.2 million reports over the past 5 years (including 730,912 in 2014), observes that the volume… Continue Reading

Update: Fifth Circuit Rejects En Banc Rehearing of Halliburton Decision

Posted in Department of Labor (DOL), Internal Investigations, Sarbanes-Oxley Act (SOX), Whistleblower Retaliation
On March 11, 2015, the Fifth Circuit voted 8-7 against rehearing en banc the court’s November decision in Halliburton Co. v. Administrative Review Board. Three Fifth Circuit judges wrote a dissenting opinion, contending that the court should have heard the appeal en banc in order to provide greater clarification and guidance on what types of… Continue Reading

Court Finds SOX Protects Post-Employment Activities of Whistleblower

Posted in Sarbanes-Oxley Act (SOX), Whistleblower Retaliation
Employers just got an important reminder that certain actions by putative whistleblowers are still protected even after they no longer work for the company. In Kshetrapal v. Dish Network, LLC, Judge Crotty of the Southern District of New York denied Dish Network’s motion to dismiss a SOX whistleblower claim based not on activities taken by… Continue Reading

Court Finds No Individual Liability Under the False Claims Act’s Retaliation Provision

Posted in False Claims Act (FCA), Whistleblower Retaliation
The tide continues to turn toward courts finding individual supervisors immune from liability under the anti-retaliation provisions of the False Claims Act (FCA). In Lampenfeld v. Pyramid Healthcare, Inc., Judge Brann of the Middle District of Pennsylvania dismissed the plaintiff’s FCA retaliation claim against her supervisor finding that the greater weight of the law held… Continue Reading

DOL Issues Final SOX Whistleblower Regulations

Posted in Sarbanes-Oxley Act (SOX), Whistleblower Retaliation
After waiting more than three years since issuing its interim final rule, DOL recently released its final rule implementing the Dodd-Frank Act revisions to the Sarbanes-Oxley Act (SOX) whistleblower regulations.  Despite the long wait, the final rule looks very similar to the interim final rule.  The most controversial provisions of the interim final rule – the preliminary… Continue Reading

New York Attorney General Announces Plans for New State Whistleblower Law

Posted in State Whistleblower Laws, Whistleblower Retaliation
On February 27, New York State Attorney General Eric Schneiderman announced that before the end of the current legislative session in June, he plans to introduce the Financial Frauds Whistleblower Act in the New York State Assembly. The bill would create a new state-level program to reward individuals who report fraud or other financial misconduct… Continue Reading

Senators Announce Formation of Whistleblower Protection Caucus

Posted in Whistleblower Retaliation
On February 25, 2015, Senator Charles Grassley (R-IA) announced the official formation of the Senate Whistleblower Protection Caucus.  According to the press release, the caucus will “foster bipartisan discussion on legislative issues affecting the treatment of whistleblowers and serve as a clearinghouse for current information on whistleblower developments of interest in the Senate.”  The caucus… Continue Reading

Tenth Circuit Enforces Whistleblower’s Release of Retaliatory Discharge Claim

Posted in False Claims Act (FCA), Whistleblower Retaliation
The Tenth Circuit recently affirmed the enforceability of releases of retaliation claims under the False Claims Act (FCA). In VanLandingham v. Grand Junction Regional Airport Authority, plaintiff, who was director of security at the Grand Junction, Colorado airport, alleged that she was demoted and ultimately terminated after refusing to comply with her supervisor’s misrepresentation to… Continue Reading