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One Billion Reasons Why The SEC Whistleblower-Reward Program Is Effective.

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One Billion Reasons Why The SEC Whistleblower-Reward Program Is Effective.

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If you are seeking representation in a SEC whistleblower bounty case, click here, or call us at 202-262-8959 to schedule a free, confidential consultation.

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When Congress included a whistleblower-reward program in the Dodd-Frank Act, the program faced considerable opposition. Many large banks and companies, along with the Chamber of Commerce, argued that it would undermine compliance programs and create a perverse financial incentive for employees who are responsible for identifying and investigating misconduct. Six years later, however, the program has proved to be an unmitigated success in enabling the SEC to discover fraud, protect investors, and prevent another financial crisis. Whistleblower tips have enabled the SEC to recover nearly $1 billion in financial penalties from wrongdoers.

There are several reasons for the success of the Dodd-Frank SEC Whistleblower-Reward Program.

First, the program allows whistleblowers who are represented by counsel to submit tips anonymously to the SEC. In certain circumstances, a whistleblower's identity may be withheld even from the SEC until a reward determination is made. However, even at the time of a reward, a whistleblower's identity is not made available to the public. This is a major benefit over other whistleblower-reward programs that do not allow anonymous submissions, such as the IRS Whistleblower-Reward Program. According to the SEC Whistleblower Office's 2016 Annual Report to Congress, almost one-quarter of whistleblowers who received awards reported anonymously through counsel.

Second, the program offers a substantial financial incentive for whistleblowers to assume the risk that accompanies whistleblowing. The SEC Whistleblower Office has awarded more than $154 million to whistleblowers. In 2016 alone, the office issued more than $57 million in whistleblower awards, including 6 of the 10 largest awards in the program's history. More than four years after the SEC whistleblower program announced its first award, in 2012, it appears that the program is now firing on all cylinders. The largest awards to date are:

$30 million award to a whistleblower living in a foreign country, demonstrating the program's international reach;

$22 million award to a former financial executive at Monsanto who exposed accounting violations that resulted in an $80 million penalty against the company; and

$17 million award to a company insider whose anonymous tip "substantially advanced the agency's investigation and ultimate enforcement action."

Third, the SEC stands firm against so-called "gag clauses" in confidentiality, severance, and other employment-related agreements. The SEC has concluded that such agreements violate Rule 21F-17, which forbids companies to prevent whistleblowers from reporting to the SEC. Rule 21F-17, one of the regulations implementing the Dodd-Frank SEC Whistleblower-Reward Program, states in relevant part that "[n]o person may take any action to impede an individual from communicating directly with the Commission staff about a possible securities law violation, including enforcing, or threatening to enforce, a confidentiality agreement . . . with respect to such communications."

This type of prohibition is critical to the success of any whistleblower program because companies often use overly broad confidentiality agreements to silence and punish whistleblowers. For example, on April 1, 2015, the SEC took administrative action against KBR Inc.for requiring witnesses in certain internal investigations to sign confidentiality statements with language threatening disciplinary action, including termination of their employment, if they discussed the subject of the interviews with outside parties without prior approval from the company's legal department. In a separate enforcement action, on August 10, 2016, theSEC issued a cease-and-desist order against BlueLinx Holdings Inc. for including provisions in severance agreements that would require former employees to waive the right to recover a whistleblower award and agree to notify the company's legal counsel before disclosing information to government agencies pursuant to legal process.

Fourth, the SEC pursues enforcement actions to remedy the retaliation that whistleblowers endure. On September 29, 2016, for instance, the SEC ordered International Game Technology to pay a $500,000 penalty for terminating the employment of a whistleblower because he reported to senior management and to the SEC that the company's financial statements might be distorted. In a separate enforcement action, on June 16, 2014, the SEC issued a cease-and-desist order against Paradigm Capital Management Inc., a hedge fund advisory firm, for engaging in prohibited transactions and then retaliating against a whistleblower who disclosed the unlawful trading activity to the SEC.

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One Billion Reasons Why The SEC Whistleblower-Reward Program Is Effective

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BY JASON ZUCKERMAN AND MATT STOCK -- Since its implementation, in August 2011, the SEC Whistleblower-Reward Program has steadily gained momentum. The SEC has recovered more than $1 billion in financial remedies from wrongdoers and issued more than $154 million in awards to whistleblowers.

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The SEC Whistleblower Program has awarded more than $150 million to 42 whistleblowers. The orders announcing the awards, while sparse, offer critical guidance on how to: (1) recover an award; and (2) maximize the award percentage. These five lessons are drawn from those orders and our experience representing SEC whistleblowers.  If you are seeking representation in a SEC whistleblower bounty case, click here, or call us at 202-262-8959 to schedule a free, confidential consultation.

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The SEC Whistleblower Program has awarded more than $150 million to 42 whistleblowers. The orders announcing the awards, while sparse, offer critical guidance on how to: (1) recover an award; and (2) maximize the award percentage. These five lessons are drawn from those orders and our experience representing SEC whistleblowers.

If you are seeking representation in a SEC whistleblower bounty case, click here, or call us at 202-262-8959 to schedule a free, confidential consultation. In 2017, Washingtonian magazine named two of our attorneys top whistleblower lawyers, and U.S. News and Best Lawyers® have named Zuckerman Law a Tier 1 firm in Litigation - Labor and Employment in the Washington DC metropolitan area.

Click here to read reviews from clients that we have represented in whistleblower rewards and whistleblower retaliation matters.

Tip #1: Establish a Material Violation

Many SEC whistleblower attorneys will incorrectly begin the analysis of a claim by determining a whistleblower's eligibility for an award. This puts the cart before the horse. The first step in any successful whistleblower claim is to determine whether you can establish a material violation of federal securities law. In other words, can you show the SEC that your tip concerns a violation that is serious enough to warrant the use of its limited resources?

Whistleblowers have filed more than 18,000 tips with the SEC in the past five years. In a perfect world, the SEC would be able to investigate all legitimate tips and stop even immaterial violations. However, the SEC has limited resources, so it can pursue only the best tips. (See Tip #5 on how to get the SEC's attention with your tip.)

If you have a hunch about a violation but lack any proof, then it may be worth investigating further, rather than submitting an incomplete or speculative claim to the SEC. Tips generally fall to the wayside unless they provide "specific" and "credible" information about material violations. That said, most whistleblowers should submit their tips as soon as possible. (See Tip #3.)

Tip #2: Quickly Determine Eligibility Because It May Affect Award Percentage

The next step in any successful whistleblower claim is to determine eligibility. This step follows a finding of a material violation because, while most individuals cannot establish a material violation, almost everyone can become eligible for an award, if certain steps are taken. Lawyers, external auditors, and even individuals involved in the wrongdoing are among those who may be eligible for awards.

Analyzing an individual's eligibility is complex. The analysis differs depending on the individual's relation to the company and how the individual obtained the information. For example, auditors may report to the SEC and be eligible for an award if:

they have a reasonable basis to believe the disclosure is necessary to prevent conduct that is likely to cause "substantial injury" to the financial interest or property of the entity or investors;

they have a reasonable basis to believe the entity is engaging in "conduct that will impede an investigation of the misconduct"; or

at least 120 days have passed either since they properly disclosed the information internally, or since they obtained the information under circumstances indicating that the entity's officers already knew of the information.

Auditors who obtained the information during their audit of an issuer, however, will be eligible for an award only if:

they have a reasonable basis to believe the disclosure is necessary to prevent "a material violation of the securities laws" that is likely to cause "substantial injury" to the financial interest or property of the entity or investors;

they have a reasonable basis to believe the entity is engaging in "conduct that will impede an investigation of the misconduct even if the submission does not contain an allegation of audit firm wrongdoing"; or

they report the securities-law violation to a superior in their independent public-accounting firm, and the firm fails to promptly report that information to the SEC.

Eligibility depends on various factors. If whistleblowers are uncertain about their eligibility, then they should consult with an experienced SEC whistleblower attorney. A skillful analysis may be the difference between a multimillion-dollar whistleblower award and no award at all. The analysis, moreover, may largely determine the size of an award.

Tip #3: Act Fast

It is never too early to think about maximizing your potential award. Whistleblowers may receive anywhere from 10% to 30% of the monetary sanctions collected in actions brought by the SEC and in related actions brought by other regulatory or law-enforcement authorities. And the timing of a whistleblower's tip is a significant factor that the SEC considers in determining whether, and how much, to award.

To be eligible for an award, a whistleblower must first submit "original information." Original information is any information that the SEC does not already have. Whistleblowers who wait to report information, therefore, risk that someone else will submit the same information to the SEC first. Keep in mind that even if the SEC has already opened an investigation, whistleblowers may still qualify for an award if their information "significantly contributes" to the success of an enforcement action.

Next, the whistleblower office may reduce the amount of an award if the whistleblower unreasonably delays reporting the violation to the SEC. About 20% of the awards issued through 2015 were reduced because of an unreasonable reporting delay. In making this determination, the whistleblower office considers:

whether the whistleblower failed to take reasonable steps to report the violation or prevent it from occurring or continuing;

whether the whistleblower was aware of the violation but reported to the SEC only after learning of an investigation into the misconduct; and

whether there was a legitimate reason for the whistleblower to delay reporting the violation.

For example, on February 28, 2017, the SEC issued an order reducing an award to 20% of the monetary sanctions collected "because of both the Claimant's culpability in connection with the securities law violations at issue in the Covered Action and the Claimant's unreasonable delay in reporting the wrongdoing to the Commission."

Finally, to be eligible for an award, some whistleblowers must take certain actions (e.g., the 120-day exception for auditors under certain circumstances, see Tip #2) before reporting to the SEC. Whistleblowers should therefore understand and consider the specific eligibility requirements in determining when to report to the SEC.

Tip #4: Know the Rules Before Filing with the SEC

Besides avoiding "unreasonable delay," whistleblowers should be aware of other actions that influence the size of awards. Whistleblowers must learn the rules early on because, as mentioned, some actions must be taken prior to filing with the SEC. For example, the whistleblower office may reduce the amount of an award if the whistleblower:

participated in, or was culpable for, the reported securities-law violation; or

interfered with the company's internal compliance and reporting systems.

On the other hand, the whistleblower office may increase the amount of an award based on:

the tip's significance to the success of any proceeding brought against wrongdoers;

the assistance that you and your legal representative provide in the SEC action or related action;

the SEC's law-enforcement interest in deterring the specific violation; and

whether, and the extent to which, you participated in your company's internal compliance and reporting systems.

Accordingly, whistleblowers have an incentive to report internally to their companies' compliance personnel before going to the SEC. If whistleblowers choose to report internally, then they should also report the same information to the SEC within 120 days. That way, in evaluating a potential award, the SEC will consider the date of the internal report, rather than the date that the whistleblower reported to the SEC. As the SEC puts it, the whistleblower office will "hold your place in line." This may determine, for example, whether a whistleblower submitted "original information."

Tip #5: Draft a Tip that Grabs the SEC's Attention

The SEC Whistleblower Office is relatively small, and thousands of tips are submitted annually. Whistleblowers and their attorneys should tailor their tips to quickly grab the SEC's attention. While we could write a book on this section alone, here are a few "rules" to keep in mind when drafting submissions:

1. Provide the SEC with a clear roadmap for a successful enforcement action. Do not submit a pile of documents and expect the whistleblower office to figure it out. Instead, walk the SEC, step by step, through specific and credible examples of the violation(s).

2. Demonstrate how the violation is "material." As mentioned, the SEC investigates only those violations that are serious enough to warrant the use of its limited resources. While demonstrating materiality, be sure to analyze the legal issues and tie them to the specific violations. This should include a discussion of potential challenges that the SEC may encounter and how the agency should address them.

3. If possible, provide the whistleblower office with documentation of the violation. The SEC is much more likely to act on a tip that is supported by strong evidence. The SEC does not, however, want all types of evidence. For example, the SEC does not want information that may violate the company's attorney-client privilege (e.g., documents, including emails, that involve advice from inside or outside counsel).

How to Qualify for a SEC Whistleblower Award

See our column in Forbes: One Billion Reasons Why The SEC Whistleblower-Reward Program Is Effective.

SEC Whistleblower Program

The following FAQ about the SEC Whistleblower Program identifies the key facets of the program. For more information about the SEC Whistleblower Program, feel free to call Zuckerman Law at 202-262-8959 for a free, confidential consultation.

1. What is the SEC Whistleblower Program?

2. What violations qualify for an SEC whistleblower award?

3. How can I submit a tip to the SEC?

4. Why should I choose the Zuckerman Law to represent me in my SEC whistleblower claim?

5. Can I submit an anonymous tip to the SEC Whistleblower Office?

6. When is the best time to report the fraud or misconduct to the SEC?

7. Can I submit an SEC Whistleblower claim if the SEC already has an open investigation into the matter?

8. Who is an "eligible" SEC whistleblower?

9. Can compliance personnel, auditors, officers or directors qualify for an SEC whistleblower award?

10. What is "original information"?

11. How might my information "lead to" a successful SEC enforcement action?

12. Can I submit a claim if I had involvement in the fraud or misconduct?

13. Do I have to report a securities law violations to my company before reporting the violation to the SEC?

14. Can I submit a tip if I agreed to a confidentiality provision in an employment/severance agreement?

15. What factors does the SEC consider when determining the amount of the award?

16. What employment protections are available for SEC whistleblowers?

17. What type of evidence should I provide to the SEC?

18. What happens after I submit a tip to the SEC?

19. How long does it take to receive an SEC whistleblower award?

20. What are the largest SEC whistleblower awards?

Washington DC Leading SEC Whistleblower Law Firm

The whistleblower lawyers at leading whistleblower firm Zuckerman law represent whistleblowers nationwide and abroad in disclosing fraud and other violations to the SEC Whistleblower Program, the CFTC Whistleblower Reward Program, and the IRS Tax Fraud Whistleblower Program. In addition, the firm has substantial experience litigating whistleblower protection and whistleblower retaliation claims, including Sarbanes-Oxley corporate whistleblower protection claims. If you are seeking representation in an SEC whistleblower bounty case, click here, or call us at 202-262-8959 to schedule a free, confidential consultation.

Download our free books about the SEC whistleblower program and the Sarbanes Oxley whistleblower protection law.

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5 Tips for SEC Whistleblowers and Lessons Learned from SEC Whistleblower Awards - Zuckerman Law

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The SEC Whistleblower Program has awarded more than $150 million to 42 whistleblowers. The orders announcing the awards, while sparse, offer critical guidance on how to: (1) recover an award; and (2) maximize the award percentage. These five lessons are drawn from those orders and our experience representing SEC whistleblowers.

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The Sarbanes-Oxley Act provides robust protection to corporate whistleblowers, and the Dodd-Frank Act authorizes awards or bounties for corporate whistleblowers. Call the whistleblower lawyers at Zuckerman Law to find out what damages or awards you may be entitled to receive under federal whistleblower laws. We can be reached at 202-262-8959 or via our website, www.zuckermanlaw.com.

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If you have original information about securities fraud, accounting fraud or foreign bribery, call the SEC whistleblower attorneys at Zuckerman Law at 202-262-8959 or visit our website at www.zuckermanlaw.com.

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If you have original information about securities fraud, accounting fraud or foreign bribery, call the SEC whistleblower attorneys at Zuckerman Law to find out if you might be eligible for a SEC whistleblower award or SEC whistleblower bounty.

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How Can a Whistleblower Get an Award from the SEC Whistleblower Program?

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How Can a Whistleblower Get an Award from the SEC Whistleblower Program?

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How Can a Whistleblower Get an Award from the SEC Whistleblower Program?

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For more information about whistleblower awards or bounties, call 202-930-5901 to have a free, confidential consultation with an SEC whistleblower attorney at Zuckerman Law, one of the nation's leading whistleblower law firms. You can also visit our website at www.zuckermanlaw.com. Attorney Advertising Information in this video is provided and intended for general informational purposes only.

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 SEC Whistleblower Program: Tips from SEC Whistleblower Attorneys to Maximize an SEC Whistleblower Award

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 SEC Whistleblower Program: Tips from SEC Whistleblower Attorneys to Maximize an SEC Whistleblower Award

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If you are seeking representation in a SEC whistleblower bounty case, click here, or call us at 202-262-8959 to schedule a free, confidential consultation.

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The SEC whistleblower program offers awards to eligible whistleblowers who provide original information that leads to successful SEC enforcement actions with total civil penalties exceeding $1 million. A whistleblower may receive an award of between 10% and 30% of the monetary sanctions collected in actions brought by the SEC and in related actions brought by other regulatory or law-enforcement authorities.

The SEC Whistleblower Office, in its short history, has successfully exposed violations of federal securities law and appropriately rewarded whistleblowers who provided information about those violations. Since 2011, the SEC Whistleblower Office has received over 22,000 tips, some of which led to enforcement actions resulting in nearly $1 billion in monetary sanctions from wrongdoers. Furthermore, the whistleblower office has issued well over $150 million in awards to whistleblowers for information and assistance. In 2016 alone, the SEC awarded more than $57 million to whistleblowers. Notably, many of the largest SEC whistleblower awards have been issued in the past year.

The program also offers substantial protection against retaliation. Specifically, an employer may not "discharge, demote, suspend, threaten, harass, directly or indirectly, or in any manner discriminates against, a whistleblower" for legally reporting wrongdoing. In the event that an employer retaliates against a whistleblower, the law provides for substantial relief. This may include reinstatement, double payback, and compensation for related expenses such as litigation costs and reasonable attorneys' fees.

Contact Leading SEC Whistleblower Law Firm to Find out if You May Qualify for a SEC Whistleblower Award

For more information about whistleblower rewards and bounties, contact the SEC whistleblower lawyers at Zuckerman Law at 202-262-8959.

To learn more about the SEC Whistleblower Program, download Zuckerman Law's eBook: SEC Whistleblower Program: Tips from SEC Whistleblower Attorneys to Maximize an SEC Whistleblower Award:

How to Report Information to the SEC and Qualify for a SEC Whistleblower Award

1. What is the SEC Whistleblower Program?

2. What violations qualify for an SEC whistleblower award?

3. How can I submit a tip to the SEC?

4. Why should I choose the Zuckerman Law to represent me in my SEC whistleblower claim?

5. Can I submit an anonymous tip to the SEC Whistleblower Office?

6. When is the best time to report the fraud or misconduct to the SEC?

7. Can I submit an SEC Whistleblower claim if the SEC already has an open investigation into the matter?

8. Who is an "eligible" SEC whistleblower?

9. Can compliance personnel, auditors, officers or directors qualify for an SEC whistleblower award?

10. What is "original information"?

11. How might my information "lead to" a successful SEC enforcement action?

12. Can I submit a claim if I had involvement in the fraud or misconduct?

13. Do I have to report a securities law violation to my company before reporting the violation to the SEC?

14. Can I submit a tip if I agreed to a confidentiality provision in an employment/severance agreement?

15. What factors does the SEC consider when determining the amount of the award?

16. What employment protections are available for SEC whistleblowers?

17. What type of evidence should I provide to the SEC?

18. Can I disclose secret recordings to the SEC?

19. What happens after I submit a tip to the SEC?

20. How long does it take to receive an SEC whistleblower award?

21. What happens after I apply for an SEC whistleblower award?

22. What are the largest SEC whistleblower awards?

SEC Whistleblower Attorneys

We have substantial experience investigating securities fraud schemes and preparing effective submissions to the SEC concerning a wide range of federal securities violations, including:

Top-Rated SEC Whistleblower Lawyers

We have assembled a team of leading whistleblower lawyers to provide top-notch representation to SEC whistleblowers. Recently Washingtonian magazine named two of our attorneys top whistleblower lawyers. U.S. News and Best Lawyers® have named Zuckerman Law a Tier 1 firm in Litigation - Labor and Employment in the Washington DC metropolitan area

Matt Stock is a Certified Public Accountant, Certified Fraud Examiner and former KPMG external auditor. As an auditor, Mr. Stock developed an expertise in financial statement analysis, internal controls testing and fraud recognition, and he uses his auditing experience to help whistleblowersinvestigate and disclose complex financial frauds to the government and obtain damages for retaliation. He is lead author of SEC Whistleblower Program: Tips from SEC Whistleblower Attorneys to Maximize an SEC Whistleblower Award.

Both Bachman and Zuckerman served in senior positions at the Office of Special Counsel, where they oversaw investigations of whistleblower retaliation claims and whistleblower disclosures, and enforced the Whistleblower Protection Act.

Eric Bachman has substantial experience litigating precedent-setting employment cases. His wins include a $100 million settlement in a disparate impact Title VII class action and a $16 million class action settlement against a major grocery chain. Having served as Special Litigation Counsel in the Civil Rights Division of the Department of Justice and as lead or co-counsel in numerous jury trials, Bachman is ready to go the distance to obtain the relief that you deserve.

Jason Zuckerman was recognized by Washingtonian magazine as a "Top Whistleblower Lawyer" in 2017, 2015, 2009, and 2007 selected by his peers to be included in The Best Lawyers in America® in the category of employment law (2011-2017), and selected by his peers to be listed in SuperLawyers(2012 and 2015-2017) in the category of labor and employment law. is rated 10 out of 10 by Avvo, based largely on client reviews, and rated AV Preeminent® by Martindale-Hubbell based on peer reviews.

Bachman and Zuckerman served on the Department of Labor's Whistleblower Protection Advisory Committee, which makes recommendations to the Secretary of Labor to improve OSHA's administration of federal whistleblower protections.

The firm has published extensively on whistleblower rights and protections, and regularly speaks nationwide at seminars and continuing legal education conferences. We blog about new developments in whistleblower law at the Whistleblower Protection Blog.

Resources for SEC Whistleblowers

To find out more about the SEC Whistleblower Program from a leading SEC whistleblower law firm, see the following ollowing resources:

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What is the SEC Whistleblower Program? - Zuckerman Law

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The SEC whistleblower program offers awards to eligible whistleblowers who provide original information that leads to successful SEC enforcement actions with total civil penalties exceeding $1 million. A whistleblower may receive an award of between 10% and 30% of the monetary sanctions collected in actions brought by the SEC and in related actions brought by other regulatory or law-enforcement authorities.

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SEC Whistleblower Program: What violations qualify for an award?

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SEC Whistleblower Program: What violations qualify for an award?

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Any violation of the federal securities laws qualifies. The SEC has broad jurisdiction over a wide range of industries and entities-both public and private. The most common tips involve:

The SEC also has jurisdiction over additional areas as well. Whistleblowers should contact an experienced SEC whistleblower lawyer to see if their claim qualifies.

In addition, whistleblowers can determine potential penalties for the violations here. Under the SEC Whistleblower Program, a whistleblower's tip must lead to monetary sanctions (penalties, disgorgement and interest) in excess of $1 million to be eligible for an award.

For more information about whistleblower rewards and bounties, click here and contact the SEC whistleblower lawyers at Zuckerman Law at 202-262-8959.

To learn more about the SEC Whistleblower Program, download Zuckerman Law's eBook: SEC Whistleblower Program: Tips from SEC Whistleblower Attorneys to Maximize an SEC Whistleblower Award:

Eligibility for a SEC Whistleblower Bounty and Tips for SEC Whistleblowers

SEC Whistleblower Awards

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Any violation of federal securities laws qualifies for an award under the SEC Whistleblower Program. The FCC has broad jurisdiction over both public and private entities. The most common tips that the SEC receives involve violations in public filings, investment violations, and insider trading tips. However, other notable areas of SEC enforcement include things such a foreign bribery, EB-5 fraud, and even auditor independence violations.

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SEC Whistleblower Program: What violations qualify for an award? - Zuckerman Law

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Any violation of the federal securities laws qualifies. The SEC has broad jurisdiction over a wide range of industries and entities-both public and private. The most common tips involve: The SEC also has jurisdiction over additional areas as well. Whistleblowers should contact an experienced SEC whistleblower lawyer to see if their claim qualifies.

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SEC Whistleblower Tips: What is the SEC Form TCR?

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SEC Whistleblower Tips: What is the SEC Form TCR?

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The SEC Form TCR ("Tip, Complaint, or Referral") is the form that whistleblowers and their attorneys use to submit tips to the SEC Whistleblower Office. The form has many sections-whistleblowers and their attorneys should pay close attention to several in particular:

Section B of the SEC Form TCR

Section B requests information about the whistleblower's attorney. This section is important because whistleblowers can submit their tips anonymously if represented by attorneys, allowing them to leave Section A blank. This is a critical advantage of the SEC Whistleblower Program as compared to other whistleblower programs, such as the IRS Whistleblower Program, which do not allow for anonymous reporting.

Section D of the SEC Form TCR

Eligibility for SEC Whistleblower Award

Section D asks whistleblowers to describe their complaints. Many of Section D's questions, however, are aimed at determining whether a particular whistleblower is eligible for an SEC award (even though Section E is technically the "eligibility" section). Importantly, almost all whistleblowers can become eligible for awards, if they take certain steps. This includes employees and contractors, such as compliance personnel, auditors, directors, and officers, who may incorrectly assume they are ineligible for SEC awards. Even whistleblowers who were involved in the fraud or misconduct may be eligible for awards.

External auditors, for example, generally are not eligible to receive SEC whistleblower awards. This is particularly true for external auditors who obtained their information during an audit of an issuer. However, an exception allows these external auditors to become eligible if they report the violation or fraud to a superior in their independent public accounting firms and the firms fail to promptly report the information to the SEC. If this happens, the external auditors can report immediately to the SEC and be eligible for awards.

The SEC's rules include many similar exceptions that allow otherwise-ineligible whistleblowers to become eligible by taking certain steps. Whistleblowers should consult with an experienced SEC whistleblower attorney to determine whether they are, or may become, eligible for SEC whistleblower awards. This consultation could be the difference between a multimillion-dollar whistleblower award and no award at all.

Maximize Your SEC Whistleblower Award

Many questions in Section D will also affect a whistleblower's future award percentage. Under the program, a whistleblower may receive an award of between 10% and 30% of the total sanctions imposed because of his or her tip. To maximize the size of a potential award, whistleblowers should evaluate the factors that the SEC considers when determining an award percentage and stress these factors in their submissions. This analysis must occur prior to submitting information to the SEC.

Section D, part 5b, for example, asks whether the whistleblower "reported this violation to his or her supervisor, compliance office, whistleblower hotline, ombudsman, or any other available mechanism at the entity for reporting violations." While this question may be important in determining a whistleblower's eligibility (in cases involving, e.g., the 120-day exception), it may also impact a whistleblower's award percentage. According to the SEC's Final Rules, the whistleblower office may increase the amount of an award if the whistleblower "reported the possible securities violations through internal whistleblower, legal or compliance procedures before, or at the same time as, reporting them to the Commission." So, whistleblowers should strongly consider reporting internally to their companies before reporting to the SEC. After reporting internally, however, most whistleblowers are incentivized to report to the SEC as soon as possible.

Another way to maximize a potential award lies in Section D, part 12, which asks whistleblowers to provide "any additional information [they] think may be relevant." This section offers whistleblowers an opportunity to identify and emphasize other aspects of the claim that would support an increased award percentage. The SEC may issue a larger award to a whistleblower who, for example, experienced any "unique hardships . . . as a result of his or her reporting and assisting in the enforcement action." ( Rule 21F-6(a)(2)(vi).) Whistleblowers should, on their Form TCR, discuss any retaliation they experienced and any personal risks they took to expose the fraud. Again, whistleblowers should consider these factors before submitting a tip to the SEC.

Identify the Securities Law Violations for the SEC

Section D, part 8 asks whistleblowers to explain why they believe the acts described "constitute a violation of the federal securities laws." Whistleblowers should determine what violations qualify for an SEC award, and provide the SEC with a clear roadmap describing how the reported acts establish specific qualifying violations.

Whistleblowers should also describe why the violations are material. In the past five years, whistleblowers have filed more than 18,000 tips with the SEC Whistleblower Office. The SEC will use its limited resources to investigate only the best tips. Whistleblowers should therefore explain, in detail, why their tips warrant the use of the SEC's resources. If a whistleblower is uncertain about a specific violation, he or she may benefit from reading prior SEC enforcement actions and consulting with an experienced SEC whistleblower attorney.

Provide Specific Evidence of the Violation

Section D, part 9 asks whistleblowers to "[d]escribe all supporting materials in [their] possession and the availability and location of any additional supporting materials not in [their] possession." The SEC Whistleblower Office is more likely to act on a tip if it is supported by strong evidence. Evidence is strong if it is specific, timely, and credible. For example, a whistleblower may provide documentation that walks the SEC through an example of the fraud, step by step, and explains how the fraud materially impacts the entity, its investors, or both.

Notably, recent decisions have clarified what company documents a whistleblower may use-even if the whistleblower signed a confidentiality agreement-to disclose fraud to the government. In Erhart v. BofI Holding, Inc., the U.S. District Court for the Southern District of California held that confidentiality agreements do not trump federal whistleblower rights and that whistleblowers are permitted to take an "appropriate" amount of company documents to disclose fraud to the government. According the order, a whistleblower's evidence may be considered "appropriate" when it is carefully selected, specifically related to the violation, and accessible in the ordinary course of the employee's duties. Whistleblowers who engage in "vast and indiscriminate" collection of company documents, on the other hand, may not be immune from potential liability.

Finally, whistleblowers should not provide all types of evidence. The SEC does not want, for example, information that may violate the company's attorney-client privilege. If a whistleblower has questionable evidence, he or she should consult with an attorney and should potentially notify the SEC to have its taint team handle the evidence.

Protect Your Identity

After providing a detailed explanation of the fraud and the evidence to support it, a whistleblower should identify any information in the submission that could expose him or her as the whistleblower. Section D, part 11 asks whistleblowers to "[i]dentify with particularity any documents or other information in [their] submission[s] that [they] believe could reasonably be expected to reveal [their] identit[ies] and explain the basis for [their] belief that [their] identit[ies] would be revealed if the documents were disclosed to a third party."

The SEC takes its responsibility to protect whistleblowers' identities very seriously. Whistleblowers can assist this effort by flagging any information that could potentially identify them. The SEC will then determine the best path to open an investigation without tipping off the target that a whistleblower is even involved.

Section F of the SEC Form TCR

Whistleblowers must sign the Form TCR under the penalty of perjury. Section F requires the whistleblower to affirm the following:

"I declare under penalty of perjury under the laws of the United States that the information contained herein is true, correct and complete to the best of my knowledge, information and belief. I fully understand that I may be subject to prosecution and ineligible for a whistleblower award if, in my submission of information, my other dealings with the SEC, or my dealings with another authority in connection with a related action, I knowingly and willfully make any false, fictitious, or fraudulent statements or representations, or use any false writing or document knowing that the writing or document contains any false, fictitious, or fraudulent statement or entry."

If a whistleblower submits a tip anonymously, then his or her signed declaration will not be included in the SEC filing. Rather, the anonymous whistleblower's attorney will sign Section G and keep the whistleblower's signed declaration in a private file.

If you have additional questions about the SEC Whistleblower Program, contact the SEC whistleblower attorneys at Zuckerman Law for a free, confidential consultation about your case by calling 202-262-8959.

To learn more about the SEC Whistleblower Program, download Zuckerman Law's eBook: SEC Whistleblower Program: Tips from SEC Whistleblower Attorneys to Maximize an SEC Whistleblower Award:

How to Qualify for a SEC Whistleblower Award: Tips from SEC Whistleblower Lawyers

SEC Whistleblower Awards and Bounties

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SEC Whistleblower Tips: What is the SEC Form TCR? - Zuckerman Law

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The SEC Form TCR ("Tip, Complaint, or Referral") is the form that whistleblowers and their attorneys use to submit tips to the SEC Whistleblower Office. The form has many sections-whistleblowers and their attorneys should pay close attention to several in particular: Section B requests information about the whistleblower's attorney.

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SEC Whistleblower Program: Can I submit an anonymous tip to SEC Whistleblower Office?

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SEC Whistleblower Program: Can I submit an anonymous tip to SEC Whistleblower Office?

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Yes, but only if you have an attorney represent you in connection with your submission. An experienced whistleblower attorney can skillfully guide you through the process, maximizing the likelihood that your identity is not revealed to unauthorized parties.

In addition, the SEC is committed to protecting whistleblowers' identities, to the fullest extent possible. It would be very difficult for the SEC to receive the best fraud-exposing tips if it did not take steps to protect whistleblowers' confidentiality. For example, the SEC will often issue awards and provide no information about the whistleblower or even the enforcement action. According to the SEC Whistleblower Office's 2016 Annual Report to Congress, almost 25% of whistleblowers who received awards reported anonymously.

There are limits, however, to the SEC's ability to shield your identity, and in certain circumstances the SEC must disclose it to outside entities. You should consult with an experienced whistleblower attorney for more details on your specific claim.

For more information about whistleblower rewards and bounties, contact the SEC whistleblower lawyers at Zuckerman Law at 202-262-8959.

To learn more about the SEC Whistleblower Program, download Zuckerman Law's eBook: SEC Whistleblower Program: Tips from SEC Whistleblower Attorneys to Maximize an SEC Whistleblower Award:

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Yes, you can submit an anonymous tip and still receive an award if you have an attorney represent you in connection with your submission. In these cases, your submissions will not have to include your name, and you'll be able to identify any information or evidence that you provide the SEC that could expose you as the whistleblower.

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SEC Whistleblower Program: Can I submit an anonymous tip to SEC Whistleblower Office? - Zuckerman Law

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Yes, but only if you have an attorney represent you in connection with your submission. An experienced whistleblower attorney can skillfully guide you through the process, maximizing the likelihood that your identity is not revealed to unauthorized parties. In addition, the SEC is committed to protecting whistleblowers' identities, to the fullest extent possible.

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SEC Whistleblower Program: When is the best time to report fraud or misconduct to the SEC for an award?

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SEC Whistleblower Program: When is the best time to report fraud or misconduct to the SEC for an award?

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In most cases, whistleblowers should report fraud or misconduct to the SEC as soon as possible. While some situations require a whistleblower to wait 120 days before providing information to the SEC, most prudent whistleblowers will raise concerns immediately. There are a few reasons for this:

First, to be eligible for an award, a whistleblower must provide the SEC with " original information "-i.e., information not already known to the SEC. If someone reports another individual's information to the SEC first, the latter will not be entitled to a percentage of any monetary sanctions collected.

Next, even if a whistleblower is the first to report the information, the SEC considers the timeliness of information to be a significant factor when determining the size of an award. Many whistleblowers wait too long to report to the SEC and so receive substantially reduced awards. In 2015, 20% of all awards were reduced because of an unreasonable reporting delay.

Finally, as a practical matter, the SEC is more likely to act on timely information. The SEC receives a significant number of tips and has limited resources. The best claims reveal fraud that the SEC can halt and whose impact the SEC can potentially minimize. The SEC will probably not act on tips about speculative fraud that occurred years ago.

That said, anyone who may have original information about a securities-law violation should hire a law firm that can quickly: (1) assess the claim; (2) draft a compelling tip, complaint, or referral ("TCR"); and (3) file with the SEC. In our experience, Zuckerman Law has been able to file whistleblowers' TCRs months before other law firms can even assess potential claims.

If you are aware of securities fraud and need immediate representation, contact the SEC whistleblower lawyers at Zuckerman Law at 202-262-8959.

To learn more about the SEC Whistleblower Program, download Zuckerman Law's eBook: SEC Whistleblower Program: Tips from SEC Whistleblower Attorneys to Maximize an SEC Whistleblower Award:

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It's a tough decision to become a whistle blower. However, the SEC has provided many reasons that individuals should go to the SEC as quickly as possible. First, individuals must provide original information in order to be eligible for an award. If someone provides the information about the specific violation before you, you will no longer be eligible for an award. In addition, a lot of awards are reduced because of undue delay. In 2015, 20% of awards were reduced because whistle blowers waited too long before going to the SEC with the information. Finally and as a practical matter, the SEC is most likely to act on timely information.

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SEC Whistleblower Program: When is the best time to report fraud or misconduct to the SEC for an award? - Zuckerman Law

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In most cases, whistleblowers should report fraud or misconduct to the SEC as soon as possible. While some situations require a whistleblower to wait 120 days before providing information to the SEC, most prudent whistleblowers will raise concerns immediately.

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Important notice

Information contained in this website should not be relied on as legal advice. You should consult an attorney for advice on your specific situation. Visiting this site or relying on information gleaned from the site does not create an attorney-client relationship with Zuckerman Law. Contacting Zuckerman Law or providing information to Zuckerman Law about a potential legal claim does not create an attorney-client relationship with Zuckerman Law. The content on this website is the property of Zuckerman Law and may not be used without the written consent thereof.

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Whistleblower Retaliation and Whistleblower Protection Lawyers - Zuckerman Law

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Important notice Information contained in this website should not be relied on as legal advice. You should consult an attorney for advice on your specific situation. Visiting this site or relying on information gleaned from the site does not create an attorney-client relationship with Zuckerman Law.

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SEC Whistleblower Program: Who is an “eligible” whistleblower for an award under the program?

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SEC Whistleblower Program: Who is an “eligible” whistleblower for an award under the program?

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Most individuals, regardless of citizenship, may be "eligible" whistleblowers if they voluntarily provide the SEC with original information about a possible violation of the federal securities laws that has occurred, is ongoing, or is about to occur. The information provided must lead to a successful SEC action that results in monetary sanctions exceeding $1 million. One or more people can act as a whistleblower, but companies or organizations cannot qualify as whistleblowers. Furthermore, individuals are not required to be employees of a company to submit information about that company.

Different eligibility rules apply to:

officers, directors, trustees, or partners of an entity, if another person informed them of allegations of misconduct, or if they learned the information in connection with the entity's processes for identifying, reporting, and addressing possible violations of law;

employees whose principal duties involve compliance or internal-audit responsibilities, or those employed by, or otherwise associated with, a firm retained to perform compliance or internal-audit functions for an entity;

those employed by, or otherwise associated with, a firm retained to conduct an inquiry or investigation into possible violations of law; and

employees of, and other persons associated with, a public accounting firm, if they obtained the information through the performance of an engagement required of an independent public accountant under the federal securities laws, and that information related to a violation by the engagement client or the client's directors, officers, or other employees.

Any of those individuals may be eligible for an SEC whistleblower award if:

his or her disclosure is necessary to prevent conduct that is likely to cause substantial injury to the financial interest or property of the entity or investors;

the entity is engaging in conduct that will impede an investigation of the misconduct; or

at least 120 days have elapsed since either:

the whistleblower provided the information to the entity's audit committee, chief legal officer, or chief compliance officer (or their equivalents), or to his or her supervisor; or

the whistleblower received the information, if he or she received it under circumstances indicating that the entity's audit committee, chief legal officer, or chief compliance officer (or their equivalents), or the whistleblower's supervisor was already aware of the information

For more information about whistleblower rewards and bounties, contact the SEC whistleblower lawyers at Zuckerman Law at 202-262-8959.

To learn more about the SEC Whistleblower Program, download Zuckerman Law's eBook: SEC Whistleblower Program: Tips from SEC Whistleblower Attorneys to Maximize an SEC Whistleblower Award:

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Generally anyone regardless of citizenship may be an eligible whistleblower under the SEC whistleblower program if they have original information about violations of federal securities laws. With that said there are some exclusions. Certain employees such as officers or directors or accountants, perhaps compliance personnel, different rules apply to them and an exception must apply for them to be eligible for an award.

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SEC Whistleblower Program: Who is an "eligible" whistleblower for an award under the program? - Zuckerman Law

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Most individuals, regardless of citizenship, may be "eligible" whistleblowers if they voluntarily provide the SEC with original information about a possible violation of the federal securities laws that has occurred, is ongoing, or is about to occur. The information provided must lead to a successful SEC action that results in monetary sanctions exceeding $1 million.

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SEC Whistleblower Program: What is considered “original information” to qualify for an award?

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SEC Whistleblower Program: What is considered “original information” to qualify for an award?

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"Original information" is information that is not already known to the SEC. Thus, if another whistleblower files your information with the SEC first, you will not be eligible for an award based on the same information (unless, of course, you were the original source of the information that the other person submitted).

This information can be derived from your independent knowledge (facts known to you that are not derived from publicly available sources) or independent analysis (evaluation of information that may be publicly available but which reveals information that is not generally known).

For more information about whistleblower rewards and bounties, contact the SEC whistleblower lawyers at Zuckerman Law at 202-262-8959.

To learn more about the SEC Whistleblower Program, download Zuckerman Law's eBook: SEC Whistleblower Program: Tips from SEC Whistleblower Attorneys to Maximize an SEC Whistleblower Award:

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Original information is any information that's not otherwise already known by the SEC and this is why it's important that when whistleblowers become aware of a violation, that they submit this information to the SEC as quickly as possible because if another individual submits the same information or information about the same violation, your information will no longer be considered original information and you will not be eligible for an award under the program.

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SEC Whistleblower Program: What is considered "original information" to qualify for an award? - Zuckerman Law

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"Original information" is information that is not already known to the SEC. Thus, if another whistleblower files your information with the SEC first, you will not be eligible for an award based on the same information (unless, of course, you were the original source of the information that the other person submitted).

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SEC Whistleblower Program: Can I submit a tip to the SEC if I was involved in the fraud or misconduct?

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SEC Whistleblower Program: Can I submit a tip to the SEC if I was involved in the fraud or misconduct?

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Yes, so long as you are not criminally charged. If you had any involvement in the wrongdoing, you should consult with an experienced SEC whistleblower attorney before contacting the SEC to determine your potential liability. Once you submit a tip, the SEC can forward the information to other agencies, including the Department of Justice, for potential criminal investigations.

Importantly, even though the SEC Whistleblower Program allows anonymous submissions through attorneys, the agency will issue an award only after it determines that the whistleblower is eligible for the award. The SEC may reduce the amount of an award if the whistleblower participated in, or was culpable for, the violation.

For more information about whistleblower rewards and bounties, contact the SEC whistleblower lawyers at Zuckerman Law at 202-262-8959.

To learn more about the SEC Whistleblower Program, download Zuckerman Law's eBook: SEC Whistleblower Program: Tips from SEC Whistleblower Attorneys to Maximize an SEC Whistleblower Award:

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Yes, you can still submit a claim if you had involvement in the fraud or misconduct. As a practical matter these individuals tend to have some of the best details that they can say about the specific violation or perhaps can offer some evidence that other whistleblowers may not have access to.

However with that said these individuals should know that once they submit information to the SEC, the SEC can give it to other agencies such as the Department of Justice for criminal investigation. As such these individuals should consult with an experienced SEC whistleblower attorney prior to submitting any information to the SEC.

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SEC Whistleblower Program: Can I submit a tip to the SEC if I was involved in the fraud or misconduct? - Zuckerman Law

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Yes, so long as you are not criminally charged. If you had any involvement in the wrongdoing, you should consult with an experienced SEC whistleblower attorney before contacting the SEC to determine your potential liability. Once you submit a tip, the SEC can forward the information to other agencies, including the Department of Justice, for potential criminal investigations.

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What is the Whistleblower Protection Act?

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What is the Whistleblower Protection Act?

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The Whistleblower Protection Act, is an aptly named statute that Congress passed in 1989 that protects federal whistleblowers. What it says is that if you're an employee or applicant within the federal government, and you raise an issue about government waste, fraud, or abuse, or a gross mismanagement of funds, anything that the statute covers, your employer can not turn around then and retaliate against you by, for example, firing you, demoting you, or not giving you a promotion. And the law provides a number of protections, such as, back pay if you are fired or don't get a promotion, compensatory damages for emotional distress, and equitable relief such as putting you back in the job that your federal employer fired you from.

Guide to the Whistleblower Protection Act

Whistleblower attorneys Eric Bachman and Jason Zuckerman, former senior officials at the U.S. Office of Special Counsel, have released a guide for federal employee whistleblowers titled The Whistleblower Protection Act: Empowering Federal Employees to Root Out Waste, Fraud and Abuse and is available for download by clicking here. The goal of the guide is to inform federal employees about the whistleblower rights and protections available under the Whistleblower Protection Act, as amended by the Whistleblower Protection Enhancement Act and the Follow the Rules Act.

Drawing on their experience enforcing the WPA at OSC and representing whistleblowers in private practice, the guide provides an overview of the WPA and offers practical tips for navigating some of the challenging issues that often arise in whistleblower cases. Topics covered include:

What Disclosures are Protected Under the Whistleblower Protection Act?

Does the Whistleblower Protection Act Protect Employees Who Exercise an Appeal or Grievance Right?

Prohibited Forms of Whistleblower Retaliation

Proving Knowledge of Protected Whistleblowing

Proving Causation

What is an Agency's Burden to Avoid Liability Once the Whistleblower Has Proved Causation?

Seeking Relief from Retaliation

Election of Remedies

Can OSC Seek a Stay of a Personnel Action?

Damages or Remedies for Retaliation

Gag Orders and Non-Disclosure Agreements

Washington DC Whistleblower Law Firm

If you are seeking representation in a whistleblower case, click here, or call us at 202-262-8959 to schedule a free, confidential consultation. In 2017, Washingtonian magazine named two of our attorneys top whistleblower lawyers, and U.S. News and Best Lawyers® have named Zuckerman Law a Tier 1 firm in Litigation - Labor and Employment in the Washington DC metropolitan area. Click here to read reviews from clients that we have represented in whistleblower rewards and whistleblower retaliation matters.

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What is the Whistleblower Protection Act? - Zuckerman Law

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The Whistleblower Protection Act, is an aptly named statute that Congress passed in 1989 that protects federal whistleblowers. What it says is that if you're an employee or applicant within the federal government, and you raise an issue about government waste, fraud, or abuse, or a gross mismanagement of funds, anything that the statute covers, your employer can not turn around then and retaliate against you by, for example, firing you, demoting you, or not giving you a promotion.

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What laws protect whistleblowers reporting fraud on the government?

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What laws protect whistleblowers reporting fraud on the government?

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Whistleblower Protections for Employees of Government Contractors and Grantees

The False Claims Act and Sections 827 and 828 of the Defense Authorization Act (NDAA) contain strong whistleblower protection provisions for employees of government contractors and grantees, and protect a broad range of whistleblower disclosures.

The whistleblower lawyers at Zuckerman Law have substantial experience representing whistleblowers at government contractors and grantees in whistleblower retaliation claims.

To schedule a free preliminary consultation, click here or call us at 202-262-8959.

For information about the NDAA whistleblower protection law, see our post Congress Strengthens Whistleblower Protections for Federal Employees and our Practical Law Practice Note: "Whistleblower Protections Under the National Defense Authorization Act."

Click here to learn about the qui tam or whistleblower rewards provision of the False Claims Act.

Top-Rated Whistleblower Attorneys

We have assembled a team of leading whistleblower lawyers to provide top-notch representation to whistleblowers. Recently Washingtonian magazine named Jason Zuckerman and Eric Bachman top whistleblower lawyers. Both Bachman and Zuckerman served in senior positions at the Office of Special Counsel, where they oversaw investigations of whistleblower retaliation claims and whistleblower disclosures, and enforced the Whistleblower Protection Act.

U.S. News and Best Lawyers® have named Zuckerman Law a Tier 1 firm in Litigation - Labor and Employment in the Washington DC metropolitan area

Bachman and Zuckerman served on the Department of Labor's Whistleblower Protection Advisory Committee, which makes recommendations to the Secretary of Labor to improve OSHA's administration of federal whistleblower protections.

Matt Stock is a Certified Public Accountant, Certified Fraud Examiner and former KPMG external auditor. As an auditor, Mr. Stock developed an expertise in financial statement analysis, internal controls testing and fraud recognition, and he uses his auditing experience to help whistleblowers investigate and disclose complex financial frauds to the government and obtain damages for retaliation. He is lead author of SEC Whistleblower Program: Tips from SEC Whistleblower Attorneys to Maximize an SEC Whistleblower Award.

Eric Bachman has substantial experience litigating precedent-setting employment cases. His wins include a $100 million settlement in a disparate impact Title VII class action and a $16 million class action settlement against a major grocery chain. Having served as Special Litigation Counsel in the Civil Rights Division of the Department of Justice and as lead or co-counsel in numerous jury trials, Bachman is ready to go the distance to obtain the relief that you deserve.

Jason Zuckerman was recognized by Washingtonian magazine as a "Top Whistleblower Lawyer" in 2017, 2015, 2009, and 2007 selected by his peers to be included in The Best Lawyers in America® in the category of employment law (2011-2017), and selected by his peers to be listed in SuperLawyers (2012 and 2015-2017) in the category of labor and employment law. is rated 10 out of 10 by Avvo, based largely on client reviews, and rated AV Preeminent® by Martindale-Hubbell based on peer reviews.

The firm has published extensively on whistleblower rights and protections, and regularly speaks nationwide at seminars and continuing legal education conferences. We blog about new developments in whistleblower law at the Whistleblower Protection Blog.

False Claims Act Whistleblower Retaliation Law Protecting Government Contractor Employees

The anti-retaliation provision of the False Claims Act protects steps taken in furtherance of a potential or actual qui tam action and efforts to stop 1 or more violations of the FCA. Protected conduct includes raising concerns to a supervisor about fraud on the government or opposing fraudulent billing practices. Recently the Second Circuit held that a refusal to violate the False Claims Act is protected under the FCA's anti-retaliation provision.

Prevailing in a False Claims Act retaliation claim requires a showing that:

1. the employee engaged in protected activity;

2. the employer had knowledge that the employee was engaged in protected activity;

3. the employer took an action that had a negative effect on the terms, conditions, or privileges of employment, such as termination, demotion, suspension, harassment and any other act that would dissuade a reasonable person from reporting violations of the False Claims Act; and

4. the employer retaliated against the employee because of this conduct.

Remedies for Federal Contractor Employees in False Claims Act Retaliation Claims

A prevailing whistleblower is entitled to "all relief necessary to make that employee, contractor, or agent whole," which includes:

reinstatement or front pay,

double back pay (double lost wages and benefits);

interest on the lost wage;

special damages, which includes damages for emotional distress and other non-economic harm resulting from the retaliation; and

attorney's fees and costs.

Filing a False Claims Act Whistleblower Retaliation Claim

The statute of limitations for a False Claims Act whistleblower retaliation claim is three years from the date on which the retaliation occurred. An FCA retaliation claim can be brought directly in federal court; there is no requirement to first file with an administrate agency. If a whistleblower is also filing a qui tam claim, an FCA retaliation claim can be filed under seal.

NDAA Government Contractor Whistleblower Retaliation Law

Sections 827 and 828 of the NDAA provide robust whistleblower protection to employees of most government contractors and grantees.

NDAA Protected Whistleblowing

The scope of protected whistleblowing under the NDAA whistleblower protection provision is far broader than the scope of protected conduct under the False Claims Act. Under the NDAA whistleblower protection provisions, protected conduct includes the disclosure of information that the employee reasonably believes is evidence of:

Gross mismanagement of a federal contract or grant, which is "a management action or inaction which creates a substantial risk of significant adverse impact upon the agency's ability to accomplish its mission." Kavanagh v. Merit Systems Protection Board, 176 F. App'x 133, 135 (Fed. Cir. April 10, 2006) (citing White v. Department of the Air Force, 63 M.S.P.R. 90, 95 (1994));

A gross waste of federal funds, which is "more than [a] debatable expenditure that is significantly out of proportion to the benefit reasonably expected to accrue to the government." Chambers v. Department of the Interior, 515 F.3d 1362, 1366 (Fed. Cir. 2008) (quoting Van Ee v. Environmental Protection Agency, 64 M.S.P.R. 693, 698 (1994));

An abuse of authority relating to a federal contract or grant, which is "an arbitrary or capricious exercise of power ... that adversely affects the rights of any person or that results in personal gain or advantage to ... preferred other persons." Doyle v. Department of Veterans Affairs, 273 F. App'x 961, 964 (Fed. Cir. April 11, 2008) (quoting Embree v. Department of the Treasury, 70 M.S.P.R. 79, 85 (1996)); or

A "substantial and specific danger to public health or safety" (alleging the nature and likelihood of the harm, as well as when the harm may occur), or a "violation of law, rule or regulation" related to a federal contract. See Chambers, 515 F.3d at 1367, 1369.

To be protected, the disclosure must be made to a Member of Congress or Congressional committee, an IG, the GAO, a federal employee responsible for contract or grant oversight or management at the relevant agency, an authorized official of DOJ or other law enforcement agency, a court or grand jury or a management official or other employee of the contractor or subcontractor who has the responsibility to investigate, discover, or address misconduct.

A covered person or body includes a "management official or other employee of the contractor, subcontractor, or grantee who has the responsibility to investigate, discover, or address misconduct." 41 U.S.C. § 4712(a)(2)(G).

Gross mismanagement is "a management action or inaction which creates a substantial risk of significant adverse impact upon the agency's ability to accomplish its mission." Kavanagh v. M.S.P.B., 176 F. App'x 133, 135 (Fed. Cir. 2006) (quoting White v. Dep't of Air Force, 63 M.S.P.R. 90, 95 (1994))

"An abuse of authority requires an `arbitrary or capricious exercise of power by a federal official or employee that adversely affects the rights of any person or that results in personal gain or advantage to himself or to preferred other persons.'" Elkassir v. Gen. Servs. Admin., 257 F. App'x 326, 329 (Fed. Cir. 2007)

Proving NDAA Whistleblower Retaliation

The burden of proof and causation standard in NDAA whistleblower cases are very favorable to whistleblowers. The complainant prevails merely by demonstrating that the protected disclosure was a contributing factor in the personnel action, which can be met by showing knowledge and temporal proximity.

Remedies for Prevailing NDAA Whistleblowers

Remedies for prevailing whistleblowers in NDAA whistleblower retaliation claims include reinstatement, back pay, uncapped compensatory damages (emotional distress damages) and attorney fees and costs.

If an NDAA case is being litigated federal court, the plaintiff can add a False Claims Act retaliation claim and potentially recover double back pay.

Filing a NDAA Whistleblower Retaliation Claim

An NDAA reprisal claim must be filed initially with the Office of Inspector of General of the agency that awarded the contract or grant about which the employee disclosed wrongdoing, and the statute of limitations is three years after the date of the reprisal. The OIG will investigate the complaint and make recommendations to the agency head. If the agency head fails to provide requested relief within 210 days, the whistleblower may bring an action in federal district court and try the case before a jury.

The requirement to exhaust administrative remedies in an NDAA retaliation lawsuit (filing the complaint with an OIG prior to filing the complaint in federal court) is jurisdictional. Therefore, an NDAA complaint filed initially in federal court will likely be dismissed.

The rights and remedies provided in Sections 827 and 828 may not be waived by an agreement, policy, form, or condition of employment.

The following table summarizes key distinctions between Section 3730(h) of the False Claims Act and Sections 827 and 828 of the NDAA:

Coverage

Employee, contractor, or agent

Employee of a contractor, subcontractor grantee, or subgrantee, or a personal services contractor

Lawful acts done by the employee, contractor, agent, or associated others (1) in furtherance of an action under the FCA or (2) other efforts to stop 1 or more violations

-Violation of law, rule, or regulation related to a federal contract

-Gross mismanagement of a federal contract or grant

-Gross waste of federal funds

-Abuse of authority relating to a federal contract or grant

-Substantial and specific danger to public health or safety

Damages

Double back pay, reinstatement, special damages (emotional distress and harm to reputation), attorney's fees

Back pay, reinstatement, special damages, attorney's fees

Federal Contractor Whistleblower Protection

Guide to NDAA/Defense Contractor Whistleblower Law

For more information about whistleblower protections for employees of government contractors and grantees, including Department of Defense contractors, see our Practical Law Practice Note titled Whistleblower Protections Under the National Defense Authorization Act. This Practice Note surveys the legal protections for employees of federal contractors, subcontractors, and grantees that receive federal funds who report waste, fraud, or abuse involving federal funds, a violation of law, rule, or regulation related to a federal contract, or a substantial and specific danger to public health or safety.

In addition, the outline explains the procedures that govern the filing, investigation and adjudication of National Defense Authorization Act (NDAA) whistleblower retaliation claims.

Topics covered include:

Protected whistleblowing under the NDAA.

The scope of coverage of the NDAA's whistleblower protection provisions.

The reasonable belief standard governing NDAA protected whistleblowing.

Proving "contributing factor" causation

The same-decision affirmative defense

Remedies or damages available to prevailing NDAA whistleblowers.

Testimonial from Federal Contractor Whistleblower

A former client represented by Zuckerman Law in a NDAA whistleblower retaliation claim offered the following review of Jason Zuckerman on Avvo:

"I was in a very difficult work situation dealing with the National Defense Authorization Act (NDAA) and whistleblower claims, and I needed legal representation. I was referred to Mr. Zuckerman by an attorney for a major corporation, who indicated that if they were in a similar situation, they would want Mr. Zuckerman on their side. From the get-go, Mr. Zuckerman listened to the details of my situation and believed in the merits of my case. He quickly dug into the details of my case and asked me thought-provoking questions, providing his legal expertise to help to build and shape my case. In doing so, he led me to see clearly how the employer wronged me. With his probing questions and knowledge of the relevant and applicable laws/statues, we filed a very strong NDAA and whistleblower claim, and combined with his tenacity, I was eventually able to settle with my employer and avoid a lengthy lawsuit. Mr. Zuckerman was very knowledgeable, professional, and always in my corner. He was always accessible, and always very responsive to my questions and needs. He accompanied me and represented me in official meetings, and he was always available to provide guidance, even emailing and responding to me very late in the evening. Mr. Zuckerman is competent, fair, ethical, and honest, and it was a pleasure working with him. I would not hesitate in recommending him to anyone who has experienced whistleblower retaliation."

WHEN REVIEWING INFORMATION ABOUT TESTIMONIALS OR STATEMENTS REGARDING A LAWYER'S QUALITY, CONSIDER THAT 1) THE FACTS AND CIRCUMSTANCES OF YOUR CASE MAY DIFFER FROM THE MATTERS IN WHICH RESULTS AND TESTIMONIALS HAVE BEEN PROVIDED; 2) ALL RESULTS OF CASES HANDLED BY JASON ZUCKERMAN ARE NOT PROVIDED AND NOT ALL CLIENTS HAVE GIVEN TESTIMONIALS; AND 3) THE TESTIMONIALS PROVIDED ARE NOT NECESSARILY REPRESENTATIVE OF RESULTS OBTAINED BY JASON ZUCKERMAN OR OF THE EXPERIENCE OF ALL CLIENTS OR OTHERS WITH JASON ZUCKERMAN. EVERY CASE IS DIFFERENT, AND EACH CLIENT'S CASE MUST BE EVALUATED AND HANDLED ON ITS OWN MERITS.

Experienced False Claims Act and NDAA Whistleblower Protection Attorneys

The experienced whistleblower attorneys at leading whistleblower law firm Zuckerman Law have substantial experience representing whistleblowers disclosing fraud and other wrongdoing at government contractors and grantees. To schedule a free preliminary consultation, click here or call us at 202-262-8959.

Our experience includes:

Representing whistleblowers in NDAA retaliation claims before the Department of Defense, and Department of Homeland Security, Department of Justice Offices of Inspectors General.

Litigating False Claims Act retaliation cases.

Representing qui tam relators in False Claims Act cases.

Representing whistleblowers disclosing fraud on the government in Congressional investigations.

Training judges, senior Office of Inspector General officials, and federal law enforcement about whistleblower protections.

In addition, we have substantial experience representing whistleblowers under the Whistleblower Protection Act (WPA) and enforcing the WPA, the law that the NDAA whistleblower provisions are based upon. Two of the attorneys on our team served in senior position at the U.S. Office of Special Counsel overseeing investigations of whistleblower retaliation claims and whistleblower disclosures.

Eric Bachman served as Deputy Special Counsel, Litigation and Legal Affairs, OSC, where he spearheaded an initiative to combat whistleblower retaliation at the Department of Veterans Affairs. During Bachman's tenure at OSC, the number of favorable actions for whistleblowers increased by over 50% agency-wide.

Jason Zuckerman served as Senior Legal Advisor to the Special Counsel at OSC, where he worked on implementation of the Whistleblower Protection Enhancement Act and several high-profile investigations, including a matter resulting in the removal of an Inspector General.

We have also written extensively about whistleblower protections for employees of government contractors and grantees, including the following articles and blog posts:

Frequently Asked Questions Qui Tam Whistleblower Rewards

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Government Contractor Whistleblower Protection Lawyers - Zuckerman Law

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The False Claims Act and Sections 827 and 828 of the Defense Authorization Act (NDAA) contain strong whistleblower protection provisions for employees of government contractors and grantees, and protect a broad range of whistleblower disclosures.

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What is the False Claims Act whistleblower retaliation law?

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What is the False Claims Act whistleblower retaliation law?

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False Claims Act Whistleblower Retaliation Lawyers

If you have suffered retaliation for whistleblowing, call our leading whistleblower lawyers at 202-262-8959.

If you are seeking representation in a False Claims Act case, click here, or call us at 202-262-8959 to schedule a free, confidential consultation. In 2017, Washingtonian magazine named two of our attorneys top whistleblower lawyers, and U.S. News and Best Lawyers® have named Zuckerman Law a Tier 1 firm in Litigation - Labor and Employment in the Washington DC metropolitan area. Click here to read reviews from clients that we have represented in whistleblower rewards and whistleblower retaliation matters.

Does the False Claims Act protect whistleblowers against retaliation?

Yes: the False Claims Act ("FCA") protects employees, contractors, and agents who engage in protected activity from retaliation in the form of their being "discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment." 31 U.S.C. § 3730(h)(1).

What is protected whistleblowing or protected conduct under the False Claims Act Retaliation Provision?

The FCA protects:

1. "lawful acts . . . in furtherance of an action under [the FCA]"; and

2. "other efforts to stop 1 or more [FCA] violations." 31 U.S.C. § 3730(h)(1).

Recent cases have interpreted this protected activity to include:

internal reporting of fraudulent activity to a supervisor;

steps taken in furtherance of a potential or actual qui tam action;

efforts to remedy fraudulent activity or to stop an FCA violation; and

refusal to violate the False Claims Act.

Does the False Claims Act anti-retaliation law protect efforts to stop a government contractor from defrauding the government?

Yes: the FCA protects whistleblowers who try to prevent one or more violations of the FCA, as long as they have an objectively reasonable belief that their employer is violating, or will soon violate, the FCA. Case law has clarified that efforts to stop an FCA violation are protected even if they are not meant to further a qui tam claim. For example, refusing to falsify documentation that will be submitted to Medicare is protected.

Is False Claims Act Whistleblower Protection Limited to Disclosures About the Whistleblower's Employer?

No. The whistleblower protection provision of the False Claims Act (FCA) protects "lawful acts done by the employee, contractor, agent or associated others in furtherance of an action under [the FCA] or other efforts to stop 1 or more violations of [the FCA]."

Does the False Claims Act retaliation law protect internal reporting to a government contractor or grantee?

Yes: case law has clarified that the act of internal reporting itself suffices as both the effort to stop the FCA violation and the notice to the employer that the employee is engaging in protected activity.

What must a whistleblower prove to prevail in a False Claims Act whistleblower retaliation case?

A whistleblowers must prove that:

1. the whistleblower engaged in protected activity;

2. the whistleblower's employer took an adverse employment action against him or her; and

3. the adverse employment action was taken because of the whistleblower's protected activity. 31 U.S.C. § 3730(h)(1).

What remedies or damages can a whistleblower recover under the whistleblower-protection provision of the False Claims Act?

A whistleblower who prevails in an anti-retaliation action under the FCA may recover:

reinstatement;

double back pay, plus interest;

special damages, which include litigation costs, reasonable attorney's fees, emotional distress, and other noneconomic harm from the retaliation. 31 U.S.C. § 3730(h)(2).

Recently, a jury awarded more than $2M to a whistleblower in a FCA retaliation case. As there is no cap on compensatory damages, FCA retaliation plaintiffs can potentially recover substantial damages for the retaliation that they have suffered.

Does the NDAA Whistleblower Protection Law Provide Additional Protection for Whistleblowers at Government Contractors and Grantees?

Yes, the NDAA whistleblower protection provisions provide a private right of action to an employee who suffers retaliation for disclosing information that the employee reasonably believes is evidence of:

gross mismanagement of a Federal contract or grant;

a gross waste of Federal funds;

an abuse of authority relating to a Federal contract or grant; or

a substantial and specific danger to public health or safety, or a violation of law, rule, or regulation related to a Federal contract.

To learn more about NDAA whistleblower protection, see our Practical Law Practice Note: "Whistleblower Protections Under the National Defense Authorization Act."

Whistleblower Retaliation Laws Protecting Employees of Federal Contractors

Sarbanes-Oxley Whistleblower Protection Law

In some cases, a disclosure protected under the False Claims Act might also be protected under the whistleblower protection provisions of the Sarbanes-Oxley Act. Note that the statute of limitations for SOX whistleblower retaliation claims is just 180 days.

To learn more about Sarbanes-Oxley whistleblower protection, download our free guide to the Sarbanes-Oxley whistleblower protection law.

Experienced False Claims Act Whistleblower Retaliation Attorneys

The experienced whistleblower attorneys at leading whistleblower law firm Zuckerman Law have substantial experience representing whistleblowers disclosing fraud and other wrongdoing at government contractors and grantees. In 2017, Washingtonian named two of our attorneys top whistleblower lawyers. To schedule a free preliminary consultation, click here or call us at 202-262-8959.

Our experience includes:

Representing whistleblowers in NDAA retaliation claims before the Department of Defense, and Department of Homeland Security, Department of Justice Offices of Inspectors General.

Litigating False Claims Act retaliation cases.

Representing qui tam relators in False Claims Act cases.

Representing whistleblowers disclosing fraud on the government in Congressional investigations.

Training judges, senior Office of Inspector General officials, and federal law enforcement about whistleblower protections.

In addition, we have substantial experience representing whistleblowers under the Whistleblower Protection Act (WPA) and enforcing the WPA, the law that the NDAA whistleblower provisions are based upon. Both Bachman and Zuckerman served in senior positions at the Office of Special Counsel, where they oversaw investigations of whistleblower retaliation claims and whistleblower disclosures, and enforced the Whistleblower Protection Act.

Recently Washingtonian magazine named Jason Zuckerman and Eric Bachman top whistleblower lawyers.

U.S. News and Best Lawyers® have named Zuckerman Law a Tier 1 firm in Litigation - Labor and Employment in the Washington DC metropolitan area

Bachman and Zuckerman served on the Department of Labor's Whistleblower Protection Advisory Committee, which makes recommendations to the Secretary of Labor to improve OSHA's administration of federal whistleblower protections.

Matt Stock is a Certified Public Accountant, Certified Fraud Examiner and former KPMG external auditor. As an auditor, Mr. Stock developed an expertise in financial statement analysis, internal controls testing and fraud recognition, and he uses his auditing experience to help whistleblowersinvestigate and disclose complex financial frauds to the government and obtain damages for retaliation. He is lead author of SEC Whistleblower Program: Tips from SEC Whistleblower Attorneys to Maximize an SEC Whistleblower Award.

Eric Bachman has substantial experience litigating precedent-setting employment cases. His wins include a $100 million settlement in a disparate impact Title VII class action and a $16 million class action settlement against a major grocery chain. Having served as Special Litigation Counsel in the Civil Rights Division of the Department of Justice and as lead or co-counsel in numerous jury trials, Bachman is ready to go the distance to obtain the relief that you deserve.

Jason Zuckerman was recognized by Washingtonian magazine as a "Top Whistleblower Lawyer" in 2017, 2015, 2009, and 2007 selected by his peers to be included in The Best Lawyers in America® in the category of employment law (2011-2017), and selected by his peers to be listed in SuperLawyers(2012 and 2015-2017) in the category of labor and employment law. He is rated 10 out of 10 by Avvo, based largely on client reviews, and rated AV Preeminent® by Martindale-Hubbell based on peer reviews.

False Claims Act Retaliation Lawyer Client Review

The following client review is from a former senior official at a government contractor:

"I was in a very difficult work situation dealing with the National Defense Authorization Act (NDAA) and whistleblower claims, and I needed legal representation. I was referred to Mr. Zuckerman by an attorney for a major corporation, who indicated that if they were in a similar situation, they would want Mr. Zuckerman on their side. From the get-go, Mr. Zuckerman listened to the details of my situation and believed in the merits of my case. He quickly dug into the details of my case and asked me thought-provoking questions, providing his legal expertise to help to build and shape my case. In doing so, he led me to see clearly how the employer wronged me. With his probing questions and knowledge of the relevant and applicable laws/statues, we filed a very strong NDAA and whistleblower claim, and combined with his tenacity, I was eventually able to settle with my employer and avoid a lengthy lawsuit. Mr. Zuckerman was very knowledgeable, professional, and always in my corner. He was always accessible, and always very responsive to my questions and needs. He accompanied me and represented me in official meetings, and he was always available to provide guidance, even emailing and responding to me very late in the evening. Mr. Zuckerman is competent, fair, ethical, and honest, and it was a pleasure working with him. I would not hesitate in recommending him to anyone who has experienced whistleblower retaliation."

Resources About False Claims Act and NDAA Whistleblower Protection

We have also written extensively about whistleblower protections for employees of government contractors and grantees, including the following articles and blog posts:

Yes, the False Claims Act prevents reprisal against an employee who has engaged in either of two areas of protected activity. One, did the employee take acts in furtherance of a qui tam action? The employee need not bring a qui tam action in the False Claims Act, but did they make an effort to try to collect evidence, or to perform an investigation of a possible violation of false claims act?
The other area is did the employee try to stop a violation of False Claims Act? Did they try to halt some fraud against the US government. The key is, the employee need not bring an action under the qui tam provisions, but if the employee has a reasonable belief that there is fraud on the US government and expresses that concern, that is enough for a claim under the False Claims Act, anti-retaliation provision.

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False Claims Act Whistleblower Retaliation Law (FAQs about False Claims Act Whistleblower Protection) - Zuckerman Law

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If you have suffered retaliation for whistleblowing, call our leading whistleblower lawyers at 202-262-8959. If you are seeking representation in a False Claims Act case, click here, or call us at 202-262-8959 to schedule a free, confidential consultation. In 2017, Washingtonian magazine named two of our attorneys top whistleblower lawyers, and U.S.

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Are whistleblowers in the airline industry protected against retaliation?

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Are whistleblowers in the airline industry protected against retaliation?

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Important notice

Information contained in this website should not be relied on as legal advice. You should consult an attorney for advice on your specific situation. Visiting this site or relying on information gleaned from the site does not create an attorney-client relationship with Zuckerman Law. Contacting Zuckerman Law or providing information to Zuckerman Law about a potential legal claim does not create an attorney-client relationship with Zuckerman Law. The content on this website is the property of Zuckerman Law and may not be used without the written consent thereof.

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Airline Industry Whistleblower Protection Law - Zuckerman Law

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Important notice Information contained in this website should not be relied on as legal advice. You should consult an attorney for advice on your specific situation. Visiting this site or relying on information gleaned from the site does not create an attorney-client relationship with Zuckerman Law.

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Are whistleblowers in the banking and financial service industries protected against retaliation?

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Are whistleblowers in the banking and financial service industries protected against retaliation?

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Whistleblower Lawyers Representing Employees fn the Banking Industry

The leading whistleblower lawyers at Zuckerman Law, a Washington DC firm representing whistleblowers nationwide, have extensive experience representing whistleblowers in the financial services industry, including whistleblowers at JP Morgan Chase, Wells Fargo, Bank of America, Deutsche Bank, HSBC, and other financial institutions. Click here to read our client reviews.

We have substantial experience representing whistleblowers in the financial services industry. Call us today for a free confidential consultation at 202-262-8959.

Are Disclosures About Consumer Financial Fraud Protected Under Federal Whistleblower Laws?

Yes, the anti-retaliation provision of the Consumer Financial Protection Act provides a cause of action for corporate whistleblowers who suffer retaliation for raising concerns about potential violations of rules or regulations of the Consumer Financial Protection Bureau.

OSHA has issued final rules implementing the whistleblower protection provision of the Consumer Financial Protection Act (CFPA). Enacted as Section 1057 of the Dodd-Frank Act, the CFPA's whistleblower protection provision provides robust protection to employees who disclose fraud related to consumer financial protection services.

The whistleblower protection provisions of the Sarbanes-Oxley Act also provides strong protection for whistleblowers. Click here to download our free guide to the Sarbanes-Oxley whistleblower protection law.

Banking Industry Employees Protected by the Consumer Financial Protection Whistleblower Law

The term "covered employee" means "any individual performing tasks related to the offering or provision of a consumer financial product or service." The CFPA defines a "consumer financial product or service" to include "a wide variety of financial products or services offered or provided for use by consumers primarily for personal, family, or household purposes, and certain financial products or services that are delivered, offered, or provided in connection with a consumer financial product or service . . . Examples of these include . .. residential mortgage origination, lending, brokerage and servicing, and related products and services such as mortgage loan modification and foreclosure relief; student loans; payday loans; and other financial services such as debt collection, credit reporting, credit cards and related activities, money transmitting, check cashing and related activities, prepaid cards, and debt relief services."

Recently the Fifth Circuit Court of Appeals held in Calderone v. Sonic Houston JLR, L.P that the CFPA does not protect employees of auto dealers.

Scope of Protected Whistleblowing About Consumer Financial Protection Violations

The CFPA protects disclosures made to an employer, to the Consumer Financial Protection Bureau or any State, local, or Federal, government authority or law enforcement agency concerning any act or omission that the employee reasonably believes to be a violation of any CFPB regulation or any other consumer financial protection law that the Bureau enforces. This includes several federal laws regulating "unfair, deceptive, or abusive practices . . . related to the provision of consumer financial products or services."

Some of the matters the CFPB regulates include:

kickbacks paid to mortgage issuers or insurers;

deceptive advertising;

discriminatory lending practices, including a violation of the Equal Credit Opportunity Act ("ECOA");

excessive fees;

any false, deceptive, or misleading representation or means in connection with the collection of any debt; and

debt collection activities that violate the Fair Debt Collection Practices Act (FDCPA).

The ECOA prohibits creditors from discriminating against "any applicant, with respect to any aspect of a credit transaction-on the basis of race, color, religion, national origin, sex or marital status, or age (provided the applicant has the capacity to contract)." 15 U.S.C. § 1691(a)(1).

Reasonable Belief Standard in Banking Whistleblower Retaliation Cases

The CFPA whistleblower protection law employs a reasonable belief standard. As long as the plaintiff's belief is reasonable, the whistleblower is protected, even if the whistleblower makes a mistake of law or fact about the underlying violation of a law or regulation under the CFPC's jurisdiction.

Prohibited Whistleblower Retaliation Against Financial Services/Banking Industry Employees

The CFPA whistleblower law proscribes a broad range of adverse employment actions, including terminating, "intimidating, threatening, restraining, coercing, blacklisting or disciplining, any covered employee or any authorized representative of covered employees" because of the employee's protected whistleblowing.

Proving CFPA Whistleblower Retaliation

To prevail under a CFPA whistleblower claim, the whistleblower need only prove that his or her protected conduct was a contributing factor in the adverse employment action, i.e., that the protected activity, alone or in combination with other factors, affected in some way the outcome of the employer's decision. Where the employer takes the adverse employment action "shortly after" learning about the protected activity, courts may infer a causal connection between the two. Van Asdale v. Int'l Game Tech., 577 F.3d 989, 1001 (9th Cir. 2009).

Filing a CFPA Financial Whistleblower Retaliation Claim

CFPA complaints are filed with OSHA, and the statute of limitations is 180 days from the date when the alleged violation occurs, which is the date on which the retaliatory decision has been both made and communicated to the whistleblower.

The complaint need not be in any particular form and can be filed orally with OSHA. A CFPA complaint need not meet the stringent pleading requirements that apply in federal court, and instead the administrative complaint "simply alerts OSHA to the existence of the alleged retaliation and the complainant's desire that OSHA investigate the complaint." If the complaint alleges each element of a CFPA whistleblower retaliation claim and the employer does not show by clear and convincing that it would have taken the same action in the absence of the alleged protected activity, OSHA will conduct an investigation.

OSHA investigates CFPA complaints to determine whether there is reasonable cause to believe that protected activity was a contributing factor in the alleged adverse action. If OSHA finds a violation, it can order reinstatement of the whistleblower and other relief.

Are Bank Whistleblowers Eligible for an Award for Reporting Fraud?

Yes, bank whistleblowers may be eligible for an award under several whistleblower-reward programs. For example, the SEC Whistleblower Program will issue awards to whistleblowers who provide original information that leads to enforcement actions with total monetary sanctions in excess of $1 million. A whistleblower may receive an award of 10-30 percent of the monetary sanctions collected. The program also permits whistleblowers to submit anonymous tips to the SEC if represented by an attorney. The largest SEC award to date is more than $30 million to a whistleblower living in a foreign country.

Download our free guide SEC Whistleblower Program: Tips from SEC Whistleblower Attorneys to Maximize an SEC Whistleblower Award.

Sarbanes-Oxley Whistleblower Protection for Banking and Financial Services Employees

The whistleblower protection provision of the Sarbanes-Oxley Act provides robust protection to corporate whistleblowers, and indeed some SOX whistleblowers have achieved substantial recoveries. Earlier this year, a former in-house counsel at a biotechnology company recovered $11 million in a SOX whistleblower retaliation case alleging that the company fired him for disclosing violations of the Foreign Corrupt Practices Act.

On the fifteenth anniversary of SOX, leading whistleblower law firm Zuckerman Law released a free guide to the SOX whistleblower protection law: " Sarbanes-Oxley Whistleblower Protection: Robust Protection for Corporate Whistleblowers." The guide summarizes SOX whistleblower protections and offers concrete tips for corporate whistleblowers based on lessons learned during years of litigating SOX whistleblower cases.

The goal of the guide is to arm corporate whistleblowers with the knowledge to effectively combat whistleblower retaliation, avoid the pitfalls that can weaken a SOX whistleblower case, and formulate an effective strategy to obtain the maximum recovery.

Banking and Financial Services Whistleblower Lawyers

If you are seeking representation in a , or call us at whistleblower protection case, click 202-262-8959 to schedule a free preliminary consultation.

We have assembled a team of leading whistleblower lawyers to provide top-notch representation to whistleblowers. Recently Washingtonian magazine named Jason Zuckerman and Eric Bachman top whistleblower lawyers. Both Bachman and Zuckerman served in senior positions at the Office of Special Counsel, where they oversaw investigations of whistleblower retaliation claims and whistleblower disclosures, and enforced the Whistleblower Protection Act. Let us put our unique experience and credentials to work for you:

U.S. News and Best Lawyers® have named Zuckerman Law a Tier 1 firm in Litigation - Labor and Employment in the Washington DC metropolitan area

Bachman and Zuckerman served on the Department of Labor's Whistleblower Protection Advisory Committee, which makes recommendations to the Secretary of Labor to improve OSHA's administration of federal whistleblower protections.

Matt Stock is a Certified Public Accountant, Certified Fraud Examiner and former KPMG external auditor. As an auditor, Mr. Stock developed an expertise in financial statement analysis, internal controls testing and fraud recognition, and he uses his auditing experience to help whistleblowers investigate and disclose complex financial frauds to the government and obtain damages for retaliation. He is lead author of SEC Whistleblower Program: Tips from SEC Whistleblower Attorneys to Maximize an SEC Whistleblower Award.

Eric Bachman has substantial experience litigating precedent-setting employment cases. His wins include a $100 million settlement in a disparate impact Title VII class action and a $16 million class action settlement against a major grocery chain. Having served as Special Litigation Counsel in the Civil Rights Division of the Department of Justice and as lead or co-counsel in numerous jury trials, Bachman is ready to go the distance to obtain the relief that you deserve.

Jason Zuckerman was recognized by Washingtonian magazine as a "Top Whistleblower Lawyer" in 2017, 2015, 2009, and 2007 selected by his peers to be included in The Best Lawyers in America® in the category of employment law (2011-2017), and selected by his peers to be listed in SuperLawyers (2012 and 2015-2017) in the category of labor and employment law. is rated 10 out of 10 by Avvo, based largely on client reviews, and rated AV Preeminent® by Martindale-Hubbell based on peer reviews.

The firm has published extensively on whistleblower rights and protections, and regularly speaks nationwide at seminars and continuing legal education conferences. We blog about new developments in whistleblower law at the Whistleblower Protection Blog.

Tips for Whistleblowers to Become Eligible for a SEC Whistleblower Bounty

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Consumer Finance and Banking Whistleblower Protection Law - Zuckerman Law

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The leading whistleblower lawyers at Zuckerman Law, a Washington DC firm representing whistleblowers nationwide, have extensive experience representing whistleblowers in the financial services industry, including whistleblowers at JP Morgan Chase, Wells Fargo, Bank of America, Deutsche Bank, HSBC, and other financial institutions. Click here to read our client reviews.

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 Do I have to report a securities law violation to my company before reporting the violation to the SEC?

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 Do I have to report a securities law violation to my company before reporting the violation to the SEC?

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To remain eligible for an award, most whistleblowers do not have to report internally before reporting to the SEC. (See eligibility requirements for details.) However, the SEC provides incentives for internal reporting. For example:

If a whistleblower reports internally, and then to the SEC within 120 days of the internal disclosure, then the SEC will use the date of the internal report in determining whether the whistleblower provided "original information." This internal reporting essentially "holds your place in line."

If a whistleblower's internal disclosure prompts a company investigation, the whistleblower will benefit from all the information discovered in that investigation.

The SEC may increase the size of a whistleblower's award if the whistleblower participated in the company's internal compliance systems.

Notably, some whistleblowers must report internally before reporting to the SEC. (See eligibility requirements for details.)

Federal circuits are split regarding whether whistleblowers who report potential securities-law violations to their employers but not to the SEC are protected from retaliation under the program.

For more information about whistleblower rewards and bounties, contact the SEC whistleblower lawyers at Zuckerman Law at 202-262-8959.

To learn more about the SEC Whistleblower Program, download Zuckerman Law's eBook: SEC Whistleblower Program: Tips from SEC Whistleblower Attorneys to Maximize an SEC Whistleblower Award:

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To remain eligible for an award, most whistle blowers do not have to report internally prior to going to the SEC. With that said, the SEC has provided certain incentives to doing this. The first and perhaps most important incentive is that by participating with your company's internal compliance system, this supports an increase in any award percentage that you may receive. In addition, if you report internally and then to the SEC within 120 days, the SEC will consider that your report date to be the same date as your internal report date when it determines whether or not you submitted original information.

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SEC Whistleblower Program: Do I have to report a securities law violation to my company before reporting the violation to the SEC? - Zuckerman Law

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To remain eligible for an award, most whistleblowers do not have to report internally before reporting to the SEC. (See eligibility requirements for details.) However, the SEC provides incentives for internal reporting.

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Can I submit a tip to the SEC if I agreed to a confidentiality provision in an employment or severance agreement?

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Can I submit a tip to the SEC if I agreed to a confidentiality provision in an employment or severance agreement?

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Yes. The SEC firmly rejects any employer's attempt to impede an employee's communication with the SEC about a possible securities-law violation by using instruments such as:

overly broad confidentiality provisions in severance or employee agreements;

waivers of the right to receive a whistleblower reward; or

agreements to notify the company's legal counsel before disclosing information to government agencies.

In August 2016, the SEC issued a cease-and -desist order against BlueLinx Holdings Inc. for using overly broad confidentiality provisions in severance agreements that would likely deter employees from blowing the whistle. In particular, to receive severance BlueLinx employees had to waive the right to recover a whistleblower award and agree to notify the company's legal counsel before disclosing information to government agencies pursuant to legal process. The SEC's order imposed a $265,000 penalty on BlueLinx because these requirements violated Dodd-Frank Act Rule 21F-17.

In December 2016, the SEC fined SandRidge Energy Inc. $1.4 million for for failing to include a "carve out" in severance agreements that allows employees to report claims to the SEC:

For more information about whistleblower rewards and bounties, contact the SEC whistleblower lawyers at Zuckerman Law at 202-262-8959.

To learn more about the SEC Whistleblower Program, download Zuckerman Law's eBook: SEC Whistleblower Program: Tips from SEC Whistleblower Attorneys to Maximize an SEC Whistleblower Award:

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Yes, as a matter of fact, the SEC has taken a very strong stance against employers who attempt to impede employees from going to the SEC with information. This includes things such as: employers can not include overly broad confidentiality provisions in severance agreements or employment agreements; they cannot require that an employee report first internally to legal counsel, for example, before going to the SEC; and also, they cannot require an employee to wave their right to an award if they do go to the SEC.

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SEC Whistleblower Program: Can I submit a tip to the SEC if I agreed to a confidentiality provision in an employment or severance agreement? - Zuckerman Law

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Yes. The SEC firmly rejects any employer's attempt to impede an employee's communication with the SEC about a possible securities-law violation by using instruments such as: overly broad confidentiality provisions in severance or employee agreements; waivers of the right to receive a whistleblower reward; or agreements to notify the company's legal counsel before disclosing information to government agencies.

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What factors does the SEC consider when determining the amount of an SEC whistleblower award?

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What factors does the SEC consider when determining the amount of an SEC whistleblower award?

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Many factors affect the amount of an award. The SEC may increase the amount of an award based on the following factors:

1. The significance of the tip to the success of any proceeding brought against wrongdoers. A tip's significance depends on, for example:

the nature of the reported information, including whether the information's reliability and completeness allowed the SEC to conserve resources; and

the degree to which the information supported one or more successful claims brought by the SEC or related actions brought by other regulatory or law-enforcement authorities.

2. The extent of the assistance that you and your legal representative provided in the SEC action or related action. Considerations include:

whether you provided ongoing, extensive, and timely cooperation and assistance (including when the whistleblower or their attorney provides industry-specific knowledge and expertise);

the timeliness of your initial report to the SEC or to your employer;

the resources conserved because of your assistance;

whether you appropriately encouraged or authorized others, who might otherwise not have participated in the investigation or related action, to assist SEC staff;

your efforts to remediate the harm caused by the violations; and

any unique hardships you experienced as a result of blowing the whistle.

3. The SEC's law-enforcement interest in deterring the specific violation. Consider factors such as:

how much an award enhances the SEC's ability to enforce the federal securities laws and protect investors;

the degree to which an award encourages the submission of high-quality information;

whether the specific violation is an SEC priority; and

the dangers of the specific violation to investors.

4. Whether, and the extent to which, you participated in your company's internal compliance and reporting systems. Think about:

whether you reported internally before, or at the same time as, you reported to the SEC; and

whether you assisted any internal investigation concerning the violation.

Conversely, the SEC may reduce the amount of an award based on these considerations:

1. If you participated in, or were culpable for, the securities-law violation(s) you reported. Consider the following:

your role in the violation;

your education, training, experience, and position of responsibility at the time the violation occurred;

whether you acted knowingly and intentionally;

whether you financially benefitted from the violation;

whether you committed a violation in the past;

the egregiousness of the underlying violation; and

whether you knowingly interfered with the SEC's investigation of the violation.

2. If you unreasonably delayed reporting the violation(s) to the SEC. This determination is based on:

whether you failed to take reasonable steps to report or prevent the violation from occurring or continuing;

whether you were aware of the violation but reported to the SEC only after learning of an investigation into the misconduct; and

whether there was a legitimate reason for you to delay reporting the violation.

3. If you interfered with your company's internal compliance and reporting systems. Consider whether you knowingly:

interfered with your company's reporting systems to prevent or delay detection of the violation; or

made materially false statements, or provided false documents, to hinder your company's ability to detect, investigate, or remediate the violation

For more information about whistleblower rewards and bounties, contact the SEC whistleblower lawyers at Zuckerman Law at 202-262-8959.

To learn more about the SEC Whistleblower Program, download Zuckerman Law's eBook: SEC Whistleblower Program: Tips from SEC Whistleblower Attorneys to Maximize an SEC Whistleblower Award:

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The SEC will consider many factors when determining the amount of an award based off the unique facts and circumstances of each case. The SEC may increase an award percentage based on the significance of the information that the whistle blower provided, the extent of the whistle blower's assistance in their investigation, the SEC's interest in deterring that specific kind of violation, and whether or not the whistle blower participated in the company's internal compliance system. The SEC may also reduce an award if the individual was culpable for the specific violation or had some involvement. The SEC may also reduce it if there is unreasonable delay in reporting to the SEC. Finally, the SEC may also reduce an award if the individual impeded with the company's internal compliance system prior to submitting information to the SEC.

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SEC Whistleblower Program: What factors does the SEC consider when determining the amount of an SEC whistleblower award? - Zuckerman Law

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Many factors affect the amount of an award. The SEC may increase the amount of an award based on the following factors: The significance of the tip to the success of any proceeding brought against wrongdoers.

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SEC Whistleblower Program: What type of evidence should I provide to the SEC?

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SEC Whistleblower Program: What type of evidence should I provide to the SEC?

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The SEC says that the best way to make your tip useful is to provide specific, timely, and credible information. The greater the lead, the better. This may include even information whose disclosure violates your company's policies against disclosing confidential or proprietary information.

A recent decision in Erhart v. Bofi Holdings clarifies that whistleblowers (even whistleblower who signed confidentiality agreements with their employers) are permitted to take "appropriate" company documents that are "reasonable necessary" to disclose fraud to the government. The judge warned, however, that wholesale stripping of confidential documents that is "vast and indiscriminate" may not immunize the whistleblower from potential liability.

Furthermore, the whistleblower should exclude certain types of evidence. For example, the SEC does not want information that may violate the company's attorney-client privilege (e.g., documents, including emails, that involve advice from inside or outside counsel). If you have completed your due diligence and consulted with an attorney, and you still have questionable evidence, then you may want to notify the SEC so that its taint team can handle that evidence.

For more information about whistleblower rewards and bounties, contact the SEC whistleblower lawyers at Zuckerman Law at 202-262-8959.

To learn more about the SEC Whistleblower Program, download Zuckerman Law's eBook: SEC Whistleblower Program: Tips from SEC Whistleblower Attorneys to Maximize an SEC Whistleblower Award:

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The SEC is looking for specific, credible and timely information about violations of federal securities laws. The more details of which the lawyer can provide the better. However, the SEC is not looking for all types of information. For example, the SEC does not want any documents that may violate the attorney client privilege.

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SEC Whistleblower Program: What type of evidence should I provide to the SEC? - Zuckerman Law

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The SEC says that the best way to make your tip useful is to provide specific, timely, and credible information. The greater the lead, the better. This may include even information whose disclosure violates your company's policies against disclosing confidential or proprietary information. A recent decision in Erhart v.

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What are the largest SEC whistleblower awards?

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What are the largest SEC whistleblower awards?

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The SEC issued its largest award, $30 million, on September 22, 2014. The second- and third-largest awards to date are $22 million, issued in August 2016, and $20 million, awarded in November 2016.

Under the program, the SEC issues awards to eligible whistleblowers who provide original information that leads to successful SEC enforcement actions with total monetary sanctions exceeding $1 million. A whistleblower may receive an award of between 10% and 30% of the total sanctions imposed.

Since 2012, the SEC has issued more than $175 million in awards to whistleblowers. In 2016 alone, the program awarded more than $57 million in to whistleblowers, including six of the ten largest whistleblower awards in the program's history.

The details of most awards are not publicly available because many whistleblowers file anonymously, through attorneys. In these situations, the SEC goes to great lengths to not reveal any information, including any details about the enforcement action, that could expose the whistleblower.

For example, when the SEC issued $30 million to an anonymous whistleblower, it did not identify the whistleblower, indicate where the whistleblower was from, or even disclose the case that the award was tied to. Andrew Ceresney, director of the SEC's enforcement division, simply said, "This whistleblower came to us with information about an ongoing fraud that would have been very difficult to detect." Further, the director mentioned that the award could have been even bigger if the whistleblower had timelier reported the information to the SEC.

However, not all whistleblowers file anonymously. On August 30, 2016, the SEC issued an award of more than $22 million to a former Monsanto executive. (Note that special rules apply to certain individuals, such as executives, auditors, and compliance personnel.) According to the SEC's press release, Monsanto lacked sufficient internal controls to account for millions of dollars in rebates. This control failure allowed the company to book a sizable amount of revenue without recognizing the costs associated with the rebates. This resulted in Monsanto's materially misstating its consolidated earnings during a three-year period, ultimately leading to an $80 million penalty from the SEC.

See our column in Forbes: One Billion Reasons Why The SEC Whistleblower-Reward Program Is Effective.

If you are seeking representation in a SEC whistleblower bounty case, click here, or call us at 202-262-8959 to schedule a free, confidential consultation. In 2017, Washingtonian magazine named two of our attorneys top whistleblower lawyers, and U.S. News and Best Lawyers® have named Zuckerman Law a Tier 1 firm in Litigation - Labor and Employment in the Washington DC metropolitan area. Click here to read reviews from clients that we have represented in whistleblower rewards and whistleblower retaliation matters.

Tracking SEC Whistleblower Awards

The table below identifies some of the larger awards that the SEC has provided to whistleblowers:

September 22, 2014

A foreign whistleblower came to the SEC with "information about an ongoing fraud that would have been very difficult to detect."

This award underscores that non-US citizens are eligible whistleblowers in the SEC Whistleblower Program.

August 30, 2016

A former financial executive at Monsanto exposed weaknesses in the company's internal controls that failed to account for millions of dollars in rebates. Monsanto agreed to settle the allegations of accounting fraud for $80 million.

Importantly, external auditors, internal auditors, accountants and other compliance personnel may be eligible for awards under the SEC Whistleblower Program. Indeed, they are often best positioned to discover wrongdoing.

November 14, 2016

According to the SEC's order determining the whistleblower awards, three whistleblowers applied for awards related to the enforcement action. The SEC denied two of the whistleblowers' applications because they did not provide "original information," and issued the full $20 million award to one whistleblower.

June 9, 2016

A company insider "substantially advanced the agency's investigation and ultimate enforcement action."

This award highlights that whistleblowers may receive an award if they provide original information regarding an open SEC investigation if it significantly contributes to the success of the action.

November 30, 2017

Two whistleblowers received awards of more than $8 million each for providing the SEC with critical information that led to a successful enforcement action.

This award demonstrates how whistleblowers can receive an increased award percentage for providing ongoing, extensive, and timely assistance to the SEC. As detailed in the SEC's order, the second whistleblower received the same $8 million award as the first whistleblower by providing additional significant information and ongoing assistance to the SEC that "enabled the Enforcement staff to more fully and quickly understand the misconduct and to assess the legal consequences... [which] saved a substantial amount of time and resources in the Investigation."

September 30, 2013

The whistleblower exposed a fraudulent offering that targeted foreign investors who sought to gain a legal pathway to citizenship through the EB-5 Immigrant Investor Program.

Recently, there has been rise in EB-5 investment fraud. Click here to read more about how to report EB-5 fraud and earn an award.

January 23, 2017

Three whistleblowers split an award of more than $7 million after helping the SEC prosecute an investment scheme.

One whistleblower provided information that was the primary reason that the SEC opened an investigation. That whistleblower received a more than $4 million award. Two other whistleblowers jointly provided new information during the SEC's investigation that significantly contributed to the success of the SEC's enforcement action. Those two whistleblowers will split more than $3 million.

January 6, 2017

An anonymous whistleblower orally provided the SEC with critical information about ongoing securities fraud. Generally, the SEC requires that whistleblower provide information "in writing." However, the SEC waived that requirement in this case due to "highly unusual circumstances" and awarded the whistleblower more than $5.5 million for the information.

This award marks the third time that the SEC has deemed it appropriate to waive a procedural requirement. The most recent exception occurred on July 27, 2017, when the SEC issued a $1.7 million whistleblower award to an insider who failed to comply with all of the whistleblower program's rules and had some culpability in the fraud. The former chief of the SEC whistleblower office said that these awards underscore the SEC's discretionary authority to do what justice requires.

May 17,2016

A former company insider's detailed tip led the agency to uncover securities violations that would have been nearly impossible for it to detect but for the whistleblower's information. The SEC's press release noted that employees are often best positioned to witness wrongdoing.

April 25, 2017

The SEC issued the $4 million award to an anonymous whistleblower who provided information that led another governmental authority (not the SEC) to a successful enforcement action resulting in significant monetary sanctions.

This award highlights that SEC whistleblowers are still eligible for an award when they provide information to the SEC that leads other governmental authorities to successful enforcement actions resulting in monetary proceeds in excess of $1 million.

September 30, 2016

The SEC issued the award to an anonymous whistleblower for "alter[ing] the agency to a fraud."

The lack of publicly available information about the anonymous whistleblower and the enforcement action underscores how serious the SEC is about protecting whistleblower's. Under the program, whistleblower may report anonymously through an SEC whistleblower attorney.

May 13, 2016

The whistleblower "bolstered an ongoing investigation with additional evidence of wrongdoing" which helped the SEC during settlement discussions with the company.

This award underscores how whistleblowers may still receive an award even if the SEC already has an open investigation into a matter.

December 5, 2016

A whistleblower received an award of $3.5 million for providing original information to the SEC that led to a successful enforcement action. The press release states: "Whistleblowers do a tremendous service to the investing public and we will continue to reward those who come forward with valuable tips that help us bring successful cases against those who violate the securities laws."

To learn more about the SEC Whistleblower Program, download Zuckerman Law's eBook: SEC Whistleblower Program: Tips from SEC Whistleblower Attorneys to Maximize an SEC Whistleblower Award:

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In the SEC Whistleblower Office's short history, it's already issued well in excess of $100 million to whistleblowers all over the world. In 2016 alone, the SEC Whistleblower Office issued $57 million in awards to whistleblowers. Two of the biggest awards to date are for $30 million and for $17 million that were submitted by anonymous whistleblowers. In the SEC's press release for these awards, they did not identify the individual and they did not even identify the specific enforcement action that led to that award. This shows that the SEC is committed to protecting whistleblowers' confidentiality, even in the biggest of cases.

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SEC Whistleblower Program: What are the largest SEC whistleblower awards? - Zuckerman Law

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The SEC issued its largest award, $30 million, on September 22, 2014. The second- and third-largest awards to date are $22 million, issued in August 2016, and $20 million, awarded in November 2016. Under the program, the SEC issues awards to eligible whistleblowers who provide original information that leads to successful SEC enforcement actions with total monetary sanctions exceeding $1 million.

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Can Whistleblowers Disclose Secret Recordings to the SEC?

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Can Whistleblowers Disclose Secret Recordings to the SEC?

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Many companies ban employees from making audio or video recordings in the workplace. Companies argue that these policies promote employee communication without the fear of being recorded. However, are these policies lawful? Can corporate whistleblowers provide recordings evidencing fraud to the SEC notwithstanding these policies?

Rule 21F-17, one of the regulations implementing the Dodd-Frank SEC whistleblower-reward program, prohibits companies from having policies or provisions in agreements that prevent whistleblowers from providing information to the SEC: "No person may take any action to impede an individual from communicating directly with the Commission staff about a possible securities law violation, including enforcing, or threatening to enforce, a confidentiality agreement . . . with respect to such communications." The SEC has used this rule to eliminate obstacles that whistleblowers face when reporting violations to the SEC, such as:

Rule 21F-17 arguably trumps any company policies that prohibit employees from making recordings of non-privileged information to disclose securities law violations to the SEC.

Workplace recordings can also be protected under the Sarbanes-Oxley Act (SOX) and other whistleblower protection laws. For example, in Franchini v. Argonne National Laboratory, the Department of Labor Administrative Review Board (ARB) held that recording workplace conversations to gather evidence of safety violations is protected whistleblowing under the whistleblower protection provision of the ERA. In Franchini, the whistleblower recorded conversations evidencing potential radiation contamination and workplace safety issues. In the course of raising his concerns internally and to the Department of Energy, the whistleblower made about 50 recordings of discussions with his supervisors and co-workers. The ARB held that gathering evidence by recording workplace conversations can be protected whistleblowing under the ERA. Notably, the ARB distinguished the whistleblower's recordings from other unprotected recordings, such as when a whistleblower engages in indiscriminate and excessive recording of unrelated topics, i.e., a company's business strategy and finances.

Moreover, policies banning recordings might violate the National Labor Retaliations Act (NLRA). Indeed, the Second Circuit recently held in Whole Foods Mkt. Grp., Inc. v. N.L.R.B. that the company's policy barring employees from workplace recordings violated Section 7 of the NLRA, which guarantees the right to "to engage in . . . concerted activities for the purpose of collective bargaining or other mutual aid or protection" and bars employers from interfere with, restraining, or coerce employees in the exercise of those rights.

Whole Foods' policy prohibited employees from "record[ing] conversations with a tape recorder or other recording device (including a cell phone or any electronic device) unless prior approval is received from your store or facility leadership." The NLRB found that this policy was an unfair labor practice in that it could restrict concerted activities, such as "employees recording images of employee picketing, documenting unsafe workplace equipment or hazardous working conditions, documenting and publicizing discussions about terms and conditions of employment, or documenting inconsistent application of employer rules" without management approval. The Second Circuit affirmed the Board's holding that the policies' overbroad language could "chill" an employee's exercise of Section 7 rights.

Though using workplace audio or video recordings to blow the whistle can be protected under some whistleblower protection laws, there are several countervailing issues that whistleblowers and their counsel should consider before using a recording to advance a whistleblower retaliation or whistleblower rewards claim.

First, the SEC will not use privileged information (e.g., a recording of a lawyer providing advice), and the SEC seeks to avoid receiving any privileged information because of the risk that it could taint an investigation. To the extent a whistleblower has a recording containing privileged information, the whistleblower and counsel should proceed very carefully and should consult state attorney ethics rules.

Second, an employee could face civil or criminal liability for making a surreptitious recording in a state in which two-party consent is required. The Reporters Committee for Freedom of the Press has issued a helpful state-by-state guide to taping phone calls and in-person conversations, which is available here.

Third, in retaliation claims, a recording that violates company policy could potentially give rise to an after-acquired evidence defense. After-acquired evidence is evidence of wrongdoing that an employer discovers after an adverse employment action that would justify the employer taking the adverse action at the time that the employer discovers the evidence. For example, if an employer fires a whistleblower in violation of the Sarbanes-Oxley whistleblower law and subsequently discovers that the whistleblower embezzled money from the company, the company could likely prove an after-acquired evidence defense at the time it discovers the theft, thereby limiting the whistleblower's remedies.

The after-acquired evidence is often misused by employers to justify a witch hunt aimed at digging up dirt on the whistleblower after the employer already took the adverse employment action. Fortunately, there is a high bar to proving an after-acquired evidence defense. In Clemmons v. Ameristar Airways, Inc., the ARB ruled that an employer asserting an after-acquired evidence defense must prove the defense by clear and convincing evidence. An employer will only meet this burden if the evidence immediately tilts the evidentiary scales in the employer's direction. In other words, an employer must show that the wrongdoing was so significant that it would have fired the employee for that action alone.

The issue of whistleblowers using company documents to prosecute their claims is complex. A recent decision providing a comprehensive analysis of these issues is Erhart v. Bofi Holdings, which is summarized here in the Whistleblower Protection Law Blog.

For more information about the SEC Whistleblower Program, download our free ebook SEC Whistleblower Program: Tips from SEC Whistleblower Attorneys to Maximize an SEC Whistleblower Award

The experienced whistleblower lawyers at Zuckerman Law represent whistleblowers worldwide before the SEC under the Dodd-Frank SEC Whistleblower Program. The firm has a licensed Certified Public Accountant and Certified Fraud Examiner on staff to enhance its ability to investigate and disclose complex financial fraud to the SEC, and two of the firm's attorneys served in high-level positions at a government agency that protects whistleblowers. Firm Principal Jason Zuckerman has been named by Washingtonian Magazine as a " Top Whistleblower Lawyer" and the firm has been ranked by U.S. News as a Tier 1 Firm in Labor & Employment Litigation.

The whistleblower lawyers at Zuckerman Law substantial experience investigating securities fraud schemes and preparing submissions to the SEC concerning a wide range of federal securities violations, including:

To schedule a free preliminary consultation, click here or call us at 202-262-8959.

To learn more about the SEC Whistleblower Program, download Zuckerman Law's eBook: SEC Whistleblower Program: Tips from SEC Whistleblower Attorneys to Maximize an SEC Whistleblower Award:

Tips for SEC Whistleblowers

SEC Whistleblower Bounties

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Can Whistleblowers Disclose Secret Recordings to the SEC? - Zuckerman Law

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Many companies ban employees from making audio or video recordings in the workplace. Companies argue that these policies promote employee communication without the fear of being recorded. However, are these policies lawful? Can corporate whistleblowers provide recordings evidencing fraud to the SEC notwithstanding these policies?

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What happens after I apply for an SEC whistleblower award?

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What happens after I apply for an SEC whistleblower award?

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After a whistleblower applies for an SEC whistleblower award (by submitting a completed Form WB-APP within 90 calendar days of the SEC posting the Notice of Covered Action), the SEC Whistleblower Office's Claims Review Staff will review the application in accordance with the rules of the SEC Whistleblower Program and make a preliminary award determination. The Claims Review Staff may base this determination on:

The whistleblower's Form TCR;

The whistleblower's Form WB-APP;

Sworn declarations from the SEC staff that worked on the enforcement action;

The enforcement action's orders and pleadings; and

Other appropriate materials as detailed in 17 C.F.R. § 240.21F-12(a).

After the Claims Review Staff makes its preliminary determination (recommending whether to issue and award and the proposed award amount), it will send the whistleblower a written notification of the determination and an explanation of the whistleblower's rights in the awards claims process. At this point, the whistleblower will have 30 calendar days to:

Request the record that was used by the Claims Review Staff in making the preliminary determination; and/or

Request a meeting with the SEC Whistleblower Office staff to discuss the preliminary determination (however, such meetings are not required and the office may decline the request). See Rule 21-F10.

If you are seeking representation in applying for a SEC whistleblower award or appealing an award determination, call us for a free, confidential consultation at 202-262-8959.
Appealing SEC Whistleblower Preliminary Award Determination

Whistleblowers may appeal the Claims Review Staff's preliminary determination to deny an award or, in the event the preliminary determination recommends the granting of an award, the amount of the award. Whistleblowers must appeal the determination within 60 calendar days of the later of: (i) the date of the preliminary award determination, or (ii) the date when the SEC Whistleblower Office made materials available for review.

If a whistleblower chooses to appeal the preliminary determination, they will receive a written acknowledgment that the SEC Whistleblower Office received the appeal. Thereafter, the Claims Review Staff will consider the whistleblower's response, along with any supporting documentation provided, and will make its proposed final determination. See Rule 21-F10.

If a whistleblower chooses not to appeal a preliminary determination, or fails to appeal in a timely manner, the preliminary determination will become the SEC's final order (except where the preliminary determination recommends granting an award, in which case it will become a proposed final determination). Importantly, a whistleblower's failure to contest a preliminary determination will constitute a failure to exhaust administrative remedies, and the whistleblower will be prohibited from appealing the determination to a United States Court of Appeals. See Rule 21-F10.

Proposed Final Award Determination and SEC Final Order

Finally, after the preliminary determination becomes the proposed final determination, the whistleblower and the SEC will receive written notification of the determination. Within 30 days of receiving this notification, any Commissioner can request a full review of the proposed final determination. If there is no request within 30 days, the proposed final determination will become the SEC's final order, which will be promptly forwarded to the whistleblower.

Appealing SEC Whistleblower Award Determination to United States Court of Appeals

If the SEC denies an award to a whistleblower, the whistleblower may file an appeal in an appropriate United States Court of Appeals (either the United States Court of Appeals for the District of Columbia Circuit, or to the circuit where the aggrieved person resides or has his or her principal place of business) within 30 days of the decision being issued. If the SEC issues an award to the whistleblower of between 10 to 30 percent of the monetary actions collected in the action, the whistleblower may not appeal the award determination if the award was made in accordance with subsection (b). See Rule 21F-13.

For more information about whistleblower rewards and bounties, contact the SEC whistleblower lawyers at leading SEC whistleblower firm Zuckerman Law at 202-262-8959.

To learn more about the SEC Whistleblower Program, download Zuckerman Law's eBook: SEC Whistleblower Program: Tips from SEC Whistleblower Attorneys to Maximize an SEC Whistleblower Award:

Qualifying for a SEC Whistleblower Award

SEC Whistleblower Awards and Bounties

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What happens after I apply for an SEC whistleblower award? - Zuckerman Law

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After a whistleblower applies for an SEC whistleblower award (by submitting a completed Form WB-APP within 90 calendar days of the SEC posting the Notice of Covered Action), the SEC Whistleblower Office's Claims Review Staff will review the application in accordance with the rules of the SEC Whistleblower Program and make a preliminary award determination.

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SEC Whistleblower Program: How long does it take to receive an award?

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SEC Whistleblower Program: How long does it take to receive an award?

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The amount of time it takes for the SEC to investigate a tip and pursue an enforcement action varies widely from one case to another. In some cases, the fraud is unequivocal and the company may choose to settle the matter with the SEC without litigating the matter. In other matters, the SEC might need to litigate a case for years before taking enforcement action. And even where a case is settled, it can take years for the SEC to to perform a thorough investigation.

Once the SEC Office of the Whistleblower posts a notice of covered action, it can take at least a year for the SEC to decide whether to issue an award.

Since 2011, more than 22,000 tips have been filed with the Whistleblower Office. Considering the volume of tips and the SEC's limited resources, your tip must grab the SEC's attention to ensure that it is acted upon timely (if at all). Once the SEC opens an investigation, it can take at least a year before the SEC is able to take enforcement action or file a complaint.

An experienced SEC whistleblower law firm can help you frame the information in a way that will increase the likelihood that the SEC will deploy scarce resources to investigate the violation and take enforcement action. You can help this process by providing your lawyer with specific and credible information that will serve as a clear roadmap of the securities-law violation(s).

Prior to submitting a SEC whistleblower claim, it is helpful to consult with an experienced attorney to determine how best to present the TCR to the SEC and what information is necessary to prove a violation. For more information about whistleblower rewards and bounties, contact the SEC whistleblower lawyers at Zuckerman Law at 202-262-8959.

To learn more about the SEC Whistleblower Program, download Zuckerman Law's eBook: SEC Whistleblower Program: Tips from SEC Whistleblower Attorneys to Maximize an SEC Whistleblower Award:

See our column in Forbes: One Billion Reasons Why The SEC Whistleblower-Reward Program Is Effective.

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It's very difficult to estimate when the SEC is going to act on a particular whistleblower's tip. The SEC whistleblower office receives thousands of tips each year and has limited resources. As such, it's more important for whistleblowers to determine how they can grab the SEC attention out of all those submissions. As a practical matter, whistleblowers are more likely to get the their information acted upon if they have a lawyer advocating for them. Furthermore, experienced SEC whistleblower attorneys can frame the information in a way that's more likely to grab the SEC's attention.

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SEC Whistleblower Program: How long does it take to receive an award? - Zuckerman Law

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The amount of time it takes for the SEC to investigate a tip and pursue an enforcement action varies widely from one case to another. In some cases, the fraud is unequivocal and the company may choose to settle the matter with the SEC without litigating the matter.

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SEC Whistleblower Program: What happens after I submit a tip to the SEC?

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SEC Whistleblower Program: What happens after I submit a tip to the SEC?

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The Office of Market Intelligence ("OMI") evaluates incoming tips, complaints, or referrals (known as "TCRs"). At least two SEC attorneys evaluate each TCR submitted. Specific, credible, and timely TCRs are assigned to members of the SEC staff for further investigation or analysis. If the OMI determines that a TCR warrants deeper investigation, the staff will assign it to one of the SEC's eleven regional offices, to a specialty unit, or to an Enforcement group in the Home Office.

If the SEC determines that it needs additional information to evaluate your TCR or to assist it in a resulting investigation, the SEC will contact you or your attorney. You should not expect, however, to receive updates from the SEC regarding your submission.

As a matter of policy, the SEC conducts its investigations on a confidential basis. The purpose of this is to:

protect the integrity of any investigation from premature disclosure; and

protect the privacy of the persons involved in an investigation.

Accordingly, there may be very limited information that the SEC can share with you or your attorney regarding what action, if any, the SEC has taken in response to your TCR.

For more information about whistleblower rewards and bounties, contact the SEC whistleblower lawyers at Zuckerman Law at 202-262-8959.

To learn more about the SEC Whistleblower Program, download Zuckerman Law's eBook: SEC Whistleblower Program: Tips from SEC Whistleblower Attorneys to Maximize an SEC Whistleblower Award:

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All tips will go to the Office of Market Intelligence. The SCC assures us that at least two attorneys will review every submission. For the submissions that the SCC finds specific, credible, and timely, they will assign them to offices throughout the United States for further investigation. Importantly, the SCC is under no requirement to provide the whistle blower with updates about their investigation into the tip.

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SEC Whistleblower Program: What happens after I submit a tip to the SEC? - Zuckerman Law

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The Office of Market Intelligence ("OMI") evaluates incoming tips, complaints, or referrals (known as "TCRs"). At least two SEC attorneys evaluate each TCR submitted. Specific, credible, and timely TCRs are assigned to members of the SEC staff for further investigation or analysis.

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Are food safety whistleblowers protected against retaliation?

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Are food safety whistleblowers protected against retaliation?

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The FDA Food Safety Modernization Act (FSMA), which imposes stricter food safety standards and grants the Food and Drug Administration greater authority to regulate tainted food, includes a whistleblower protection provision. The FMSA was prompted in part by numerous instances of fatal food contamination that revealed insufficient regulation and oversight of food production, including outbreaks of contaminated peanuts, eggs, and produce. The Centers for Disease Control and Prevention estimate that there are 76 million cases of foodborne disease each year in the United States, 5,000 of which result in death.

To ensure that workers can disclose food safety concerns without fear of reprisal, Congress included in the FMSA a robust whistleblower protection provision (Section 402) that protects workers engaged in the manufacture, processing, packing, transporting, distribution, reception, holding, or importation of food. The bill must be reconciled with a House version of the bill, H.R. 2749, which passed on July 30, 2009, and final passage is expected to occur by the end of the year.

Covered Employees

Section 402 applies to any entity "engaged in the manufacture, processing, packing, transporting, distribution, reception, holding, or importation of food."

Broad Scope of Protected Conduct

The FSMA prohibits retaliation against an employee who has:

1. Provided, caused to be provided, or is about to provide or cause to be provided to the employer, the Federal Government, or the attorney general of a State information relating to any violation of, or any act or omission the employee reasonably believes to be a violation of any provision of this Act or any order, rule, regulation, standard, or ban under this Act, or any order, rule, regulation, standard, or ban under this Act;
2. Testified or is about to testify in a proceeding concerning such violation;
3. Assisted, participated or is about to assist or participate in such a proceeding; or
4. Objected to, or refused to participate in, any activity, policy, practice, or assigned task that the employee (or other such person) reasonably believed to be in violation of any provision of this Act, or any order, rule, regulation, standard, or ban under this Act.
A Section 402 complainant need not demonstrate that she disclosed an actual violation of a food safety law or regulation. Instead, Section 402 employs a "reasonable belief" standard that the Department of Labor (DOL) and federal courts have construed as protecting a reasonable but mistaken belief that an employer may have violated a particular law. See Van Asdale v. Int'l Game Tech., 577 F.3d 989, 1001 (9th Cir. 2009) ("to encourage disclosure, Congress chose statutory language which ensures that an employee's reasonable but mistaken belief that an employer engaged in conduct that constitutes a violation of one of the six enumerated categories is protected.") (internal quotation, citation omitted); Allen v. Admin. Review Bd., 514 F. 3d 468, 477 (5th Cir. 2008) (applying "reasonable belief" standard in a Sarbanes-Oxley whistleblower retaliation action); Kalkunte v. DVI Fin. Svcs., Inc., ARB Nos. 05-139 & 05-140, 2004-SOX-056 (ARB Feb. 27, 2009) (clarifying that a reasonable but mistaken belief is protected under SOX). The reasonable belief standard consists of both a subjective and objective component, and objective reasonableness "is evaluated based on the knowledge available to a reasonable person in the same factual circumstances with the same training and experience as the aggrieved employee." Allen, 514 F.3d at 477.

The "duty speech" doctrine will not apply to FSMA retaliation claims, as the text specifically protects disclosures made "in the ordinary course of the employee's duties."

Some examples of protected conduct include the following:

1. Reporting that imported cheese is being stored at the wrong temperature and is therefore susceptible to spoiling or containing harmful bacteria;

2. Reporting that an additive harmful only to infants was added to infant formula;

3. Reporting that bread is being stored in a facility infested with flies and rodents;

4. Reporting that a peanut butter manufacturer did not recall peanut butter it knew might have been made using a batch of contaminated peanuts; and

5. Reporting that a chemical used to lubricate sorting machines has contaminated dietary supplements.

Prohibited Whistleblower Retaliation

An employer is prohibited from discharging or "in any manner discriminat[ing] against any employee with respect to his or her compensation, terms, conditions, or other privileges of employment." The DOL's Administrative Review Board (ARB) applies the Burlington Northern standard to analogous whistleblower protection statutes, and therefore Section 402 will prohibit not only tangible adverse actions, but also any action that may dissuade a reasonable employee from engaging in further protected activity. See Melton v. Yellow Transp. Inc., ARB No. 06-052, 05-140, ALJ No. 2005-STA-002 (ARB Sept. 30, 2008) (holding that the Burlington Northern standard applies to whistleblower retaliation claims before the DOL). Prohibited acts of retaliation will likely include termination, suspension, demotion, reduction in pay, demotion, failure to promote, failure to hire, diminution in job duties, and blacklisting.

Employee-Favorable Causation Standard and Burden of Proof

A complainant can prevail merely by showing by a preponderance of the evidence that her protected activity was a contributing factor in the unfavorable action. A contributing factor is any factor which, alone or in connection with other factors, tends to affect in any way the outcome of the decision. See Klopfenstein v. PPC Flow Techs. Holdings, Inc., ARB No. 04-149 at 18, ALJ No. 2004-SOX-11 (ARB May 31, 2006) (internal citation omitted). Once a complainant meets her burden by a preponderance of the evidence, the employer can avoid liability only if it proves by clear and convincing evidence that it would have taken the same action in the absence of the employee's protected conduct. Clear and convincing evidence is "[e]vidence indicating that the thing to be proved is highly probable or reasonably certain." See Peck v. Safe Air Int'l, Inc., ARB No. 02-028 at 9, ALJ No. 2001-AIR-3 (ARB Jan. 30, 2004).

Remedies for Whistleblower Retaliation

Remedies include injunctive relief, reinstatement, back pay with interest, "special damages," attorney's fees, litigation costs, and expert witness fees. Where reinstatement is unavailable or impractical, front pay may be awarded. "Special damages" has been construed under similar whistleblower protection statutes to include damages for pain, suffering, mental anguish and an injured career or reputation. See, e.g., Kalkunte, ARB Nos. 05-139 & 05-140 at 15 (SOX case awarding complainant emotional distress damages); Hannah v. WCI Communities, 348 F. Supp. 2d 1332, 1334 (S.D. Fla. 2004) ("a successful Sarbanes-Oxley Act plaintiff cannot be made whole without being compensated for damages for reputational injury that diminished plaintiff's future earning capacity"). A complainant may also be entitled to damages for loss to his reputation as part of the "make whole" remedy provided by the statute. See Hannah, 348 F. Supp. 2d at 1334.

Procedures Governing Section 402 Whistleblower Retaliation Claims

A complainant must file her complaint with the Occupational Safety and Health Administration (OSHA) within 180 days after the date on which the retaliatory adverse action occurred. OSHA will investigate the claim and can order preliminary relief, including reinstatement. Either party can appeal OSHA's determination by requesting a de novo hearing before a DOL Administrative Law Judge (ALJ), but objecting to an order of preliminary relief will not stay the order of reinstatement. Discovery before an ALJ typically proceeds at a faster pace than discovery in state or federal court, and the hearings are less formal than federal court trials. For example, ALJs are not required to apply the Federal Rules of Evidence. Either party can appeal an ALJ's decision to the ARB and can appeal an ARB decision to the circuit court of appeals in which the adverse action took place.

If the Secretary of Labor fails to issue a final decision within 210 days of the filing of a complaint, or within 90 days after receiving a written determination from OSHA, the complainant can remove her claim to federal court for de novo review and either party may request a trial by jury. Section 402 does not preempt or diminish any other remedy for retaliation provided by Federal or State law, and therefore a Section 402 complainant could remove the claim to federal court and add additional claims, such as a common law wrongful discharge action, which would provide an opportunity to obtain punitive damages.

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Whistleblower Lawyer Jason Zuckerman Analyzes Food Safety Whistleblower Protections - Zuckerman Law

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The FDA Food Safety Modernization Act (FSMA), which imposes stricter food safety standards and grants the Food and Drug Administration greater authority to regulate tainted food, includes a whistleblower protection provision. The FMSA was prompted in part by numerous instances of fatal food contamination that revealed insufficient regulation and oversight of food production, including outbreaks of contaminated peanuts, eggs, and produce.

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Are whistleblower disclosures about consumer safety protected?

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Are whistleblower disclosures about consumer safety protected?

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Consumer Product Safety Whistleblower Protection Law

Prompted by concerns of lead-laden children's toys and insufficient regulation of consumer product safety, consumer product safety, Congress enacted the Consumer Product Safety Commission (CPSC) Reform Act on August 14, 2008. The CPSC Reform Act strengthens the authority of the commission, expands the scope of prohibited activities under the Consumer Product Safety Act (CPSA), and imposes new certification requirements on manufacturers and distributors.

To ensure that employees can blow the whistle on consumer product safety issues, Congress included in the CPSC Reform Act a whistleblower protection provision that prohibits manufacturers, private labelers, distributors, and retailers from retaliating against an employee because the employee provided information to an employer, a regulatory agency, or a state attorney general about a reasonably perceived violation of the CPSC Reform Act or any other act enforced by the CPSC.

The regulations implementing the CPSC whistleblower protection law are available by clicking here.

Who is Protected Under the CPSC Whistleblower Retaliation Law?

The CPSC whistleblower law applies to manufacturers, private labelers, distributors, and retailers. A consumer product is

any article, or component part thereof, produced or distributed (i) for sale to a consumer for use in or around a permanent or temporary household or residence, a school, in recreation, or otherwise, or (ii) for the personal use, consumption or enjoyment of a consumer in or around a permanent or temporary household or residence, a school, in recreation, or otherwise ....

15 U.S.C. § 2052(a)(5). A product that is not "customarily produced or distributed for sale to, or use or consumption by, or enjoyment of, a consumer" will likely not be deemed a consumer product. 15 U.S.C. § 2052(a)(5)(A).
What Whistleblowing is Protected Under the Consumer Product Safety Act?

The CPSC Reform Act prohibits an employer from terminating or otherwise discriminating against an employee because the employee

1. provided information to the employer, the federal government, or a state attorney general "relating to any violation of, or any act or omission the employee reasonably believes to be a violation of any provision" of an order, rule, regulation, standard, or ban enforced by the CPSC;

2. testified, assisted, or participated in a proceeding concerning a violation of a CPSC rule or regulation, or

3. refused to participate in an activity, policy, practice, or assigned task that the employee reasonably believes violates a CPSC rule or regulation.

Examples of protected whistleblowing include:

Reporting violations of the standard for the flammability of children's sleepwear;

Disclosing information about the use of consumer patching compounds containing free-form asbestos;

Reporting an employer's violation of a safety standard for creating architectural glazing materials; and

Reporting choking incidents involving marbles, small balls, latex balloons, and other small parts.

The CPSC Reform Act protects employees who blow the whistle in the normal course of performing their job duties.

What acts of retaliation are prohibited by the Consumer Product Safety Whistleblower Law?

The C PSC Reform Act prohibits a wide array of adverse employment actions, including termination and discrimination with respect to the employees' pay, terms, conditions, or privileges of employment.

What is the Causation Standard Under the CPSC Whistleblower Retaliation Law?

To prevail in a CPSC whistleblower action, the whistleblower must establish that protected whistleblowing was a contributing factor in the unfavorable personnel action. The whistleblower need not prove that protected conduct was the sole factor in the employer's decision to take the adverse employment action.

What Remedies or Damages are Available to Consumer Product Safety Whistleblowers?

"Make whole" relief includes (1) reinstatement, (2) back pay, (3) compensatory damages, and (4) attorney fees and litigation costs, including expert witness fees.

How to File a CPSC Reform Act Whistleblower Retaliation Action

The statute of limitations for filing a consumer product safety whistleblower claim is 180 days form the date on which the employee is first informed of the adverse employment action (which can be earlier than the effective date of the adverse action)..

After the complaint is filed, the Occupational Safety and Health Administration (OSHA) investigates the complaint and may order preliminary relief, including reinstatement of the whistleblower to his previous position. Either the whistleblower or the employer can appeal OSHA's determination by requesting to have the full case heard by a Dept. of Labor administrative judge.

If the Department of Labor has not issued a final decision with 210 days of the filing of the complaint, the whistleblower can remove the case to federal court.

Lawyers Representing Consumer Product Safety Whistleblowers

If you have suffered retaliation for disclosing consumer product safety hazards, click here or call us at 202-262-8959 to schedule a preliminary consultation.

Some disclosures about consumer product safety can also be protected under the whistleblower protection provisions of the Sarbanes-Oxley Act, such as a company concealing from its shareholders a significant product defect or a product recall. For more information about protections and remedies for corporate whistleblowers, download our free guide Sarbanes-Oxley Whistleblower Protection: Robust Protection for Corporate Whistleblowers.

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Consumer Product Safety Whistleblower Attorneys - Zuckerman Law

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Prompted by concerns of lead-laden children's toys and insufficient regulation of consumer product safety, consumer product safety, Congress enacted the Consumer Product Safety Commission (CPSC) Reform Act on August 14, 2008. The CPSC Reform Act strengthens the authority of the commission, expands the scope of prohibited activities under the Consumer Product Safety Act (CPSA), and imposes new certification requirements on manufacturers and distributors.

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What is the SOX whistleblower protection law?

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What is the SOX whistleblower protection law?

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Sarbanes-Oxley (SOX) Whistleblower Law: Robust Protection for Corporate Whistleblowers

Section 806 of the Sarbanes-Oxley Act provides robust protection for corporate whistleblowers. As retaliation can derail a career, some SOX whistleblowers have obtained substantial recoveries, including recent jury verdicts of $11M and $5M in SOX whistleblower retaliation cases.

The leading Sarbanes-Oxley whistleblower lawyers at Zuckerman Law have extensive experience representing corporate whistleblowers and have recovered more than fifteen million dollars for SOX whistleblowers. U.S. News and Best Lawyers® have named Zuckerman Law a Tier 1 firm in Litigation - Labor and Employment in the Washington DC metropolitan area in the 2018 edition "Best Law Firms." In 2017, Washingtonian magazine named two of our attorneys top whistleblower lawyers.

Call us today for a free confidential consultation about your corporate whistleblower case. We can be reached at 202-262-8959 or by clicking here.

The SOX whistleblower lawyers at Zuckerman Law have represented CEOs, CFOs, in-house counsel, partners at audit firms and other senior professionals in high-stakes whistleblower matters. Click here to read reviews and testimonials from former clients. Drawing on our substantial experience representing corporate whistleblowers, we have published a free guide to SOX titled Sarbanes-Oxley Whistleblower Protection: Robust Protection for Corporate Whistleblowers:

For information about the SEC's Whistleblower Reward Program, download our free ebook SEC Whistleblower Program: Tips from SEC Whistleblower Attorneys to Maximize an SEC Whistleblower Award.

Relief Available to Prevailing Sarbanes-Oxley Whistleblowers

A prevailing SOX whistleblower can recover:

lost wages and benefits;

reinstatement or front pay; and

special damages, which includes emotional distress, impairment of reputation, personal humiliation, and other non-economic harm resulting from retaliation.

There is no cap on special damages under SOX, and some state whistleblower protection laws enable whistleblowers to recover punitive damages. Recently corporate whistleblower have obtained substantial recoveries in SOX whistleblower cases:

Protected Whistleblowing Under Sarbanes-Oxley Anti-Retaliation Provisions

The Sarbanes-Oxley whistleblower law protects corporate whistleblowers for providing information about securities fraud, shareholder fraud, bank fraud, a violation of any SEC rule or regulation, mail fraud, or wire fraud. The Department of Labor has construed SOX whistleblowing broadly, holding that:

Disclosing a potential violation is protected, i.e., an employee who reasonably believes that a securities violation is imminent will be protected by SOX if he or she reports the violation before it actually occurs.

An employee's mistaken belief in a violation of law can be objectively reasonable. The reasonable person standard recognizes that many employees are unlikely to be trained to recognize legally actionable conduct by their employers. To satisfy the objective component of the "reasonable belief" standard, the employee must prove that a reasonable person in the same factual circumstances with the same training and experience would believe that the employer violated securities laws.

To be protected under SOX, the employee's report need not "definitively and specifically" relate to one of the listed categories of fraud or securities violations in Section 806 of SOX. The focus is "on the plaintiff's state of mind rather than on the defendant's conduct." Guyden v. Aetna, Inc., 544 F.3d 376, 384 (2d Cir. 2008).

Prohibited Retaliation Against Corporate Whistleblowers

The whistleblower protection provision of the Sarbanes-Oxley Act prohibits a broad range of retaliatory adverse employment actions, including discharging, demoting, suspending, threatening, harassing, or in any other manner discriminating against a whistleblower. Recently a federal court of appeals held that merely outing or disclosing the identity of a whistleblower is actionable retaliation under SOX.

Proving a Violation of Sarbanes-Oxley (SOX) Whistleblower Provision

To prevail under SOX's whistleblower provision, an employee must prove by a preponderance of the evidence that

1. she engaged in protected activity;

2. the employer knew that she engaged in the protected activity;

3. she suffered an unfavorable personnel action; and

4. the protected activity was a contributing factor in the unfavorable action.

A contributing factor is any factor which, alone or in connection with other factors, tends to affect in any way the outcome of the decision. Causation can be inferred from timing alone where an adverse employment action follows on the heels of protected activity. The decision-maker's knowledge of the protected activity and close temporal proximity will suffice to prove causation in some cases.

Once the employee proves the elements of a Sarbanes-Oxley whistleblower retaliation claim by a preponderance of the evidence, the employer can avoid liability only if it proves by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of the complainant's protected behavior or conduct.

Filing a Sarbanes-Oxley Whistleblower Complaint

A Sarbanes-Oxley whistleblower retaliation complaint must be filed initially with OSHA. The complainant has the option to remove a SOX whistleblower claim to federal court once the complaint has been pending at the Department of Labor for 180 days.

Frequently Asked Questions About the Sarbanes-Oxley Corporate Whistleblower Protection Law

Protected Whistleblowing Under the Sarbanes-Oxley Act

Prohibited Whistleblower Retaliation Under Sarbanes-Oxley

Proving Sarbanes-Oxley Whistleblower Retaliation

Relief or Damages for SOX Whistleblowers

Litigating Sarbanes-Oxley Whistleblower Cases

Additional FAQs About the Sarbanes-Oxley Whistleblower Protection Law

Sarbanes-Oxley (SOX) Whistleblower Attorneys: Tier 1 Firm

We have assembled a team of leading whistleblower lawyers to provide top-notch representation to Sarbanes-Oxley (SOX) whistleblowers. Recently Washingtonian magazine named two of our attorneys top whistleblower lawyers. U.S. News and Best Lawyers® have named Zuckerman Law a Tier 1 Law Firm in the Washington D.C. metropolitan area.

The whistleblower lawyers at Zuckerman Law have substantial experience litigating Sarbanes Oxley whistleblower retaliation claims and have achieved substantial recoveries for officers, executives, accountants, auditors, and other senior professionals. To schedule a free preliminary consultation, click here or call us at 202-262-8959.

Matt Stock is a Certified Public Accountant, Certified Fraud Examiner and former KPMG external auditor. As an auditor, Mr. Stock developed an expertise in financial statement analysis, internal controls testing and fraud recognition, and he uses his auditing experience to help whistleblowers investigate and disclose complex financial frauds to the government and obtain damages for retaliation. He is lead author of SEC Whistleblower Program: Tips from SEC Whistleblower Attorneys to Maximize an SEC Whistleblower Award.

Both Bachman and Zuckerman served in senior positions at the Office of Special Counsel, where they oversaw investigations of whistleblower retaliation claims and whistleblower disclosures, and enforced the Whistleblower Protection Act.

Eric Bachman has substantial experience litigating precedent-setting employment cases. His wins include a $100 million settlement in a disparate impact Title VII class action and a $16 million class action settlement against a major grocery chain. Having served as Special Litigation Counsel in the Civil Rights Division of the Department of Justice and as lead or co-counsel in numerous jury trials, Bachman is ready to go the distance to obtain the relief that you deserve.

Bachman and Zuckerman served on the Department of Labor's Whistleblower Protection Advisory Committee, which makes recommendations to the Secretary of Labor to improve OSHA's administration of federal whistleblower protections.

Jason Zuckerman was recognized by Washingtonian magazine as a "Top Whistleblower Lawyer" in 2017, 2015, 2009, and 2007, selected by his peers to be included in The Best Lawyers in America® in the category of employment law (2011-2017), and selected by his peers to be listed in SuperLawyers(2012 and 2015-2017) in the category of labor and employment law. Zuckerman is rated 10 out of 10 by Avvo, based largely on client reviews, and rated AV Preeminent® by Martindale-Hubbell based on peer reviews.

The firm has published extensively on whistleblower rights and protections, and regularly speaks nationwide at seminars and continuing legal education conferences. We blog about new developments in whistleblower law at the Whistleblower Protection Blog.

SOX Whistleblower Lawyer Client Reviews

We pride ourselves not only on the results we achieve, but also on ensuring that we provide the highest level of customer service and that our clients are kept informed of all developments in their case and play an active role in every key strategic decision in their case. Every case is unique and every client has unique objectives that will govern how we litigate a case.

The following five client reviews are from senior corporate officials, including a CFO at a public company, that were provided through Avvo.

"As a finance exec, I have spent my career working closely with hundreds of lawyers. On balance, Mr. Zuckerman is the best lawyer I have ever encountered. Although he runs a small law firm, I watched as he ran circles around multiple lawyers both in-house and at a large, nationally-recognized firm. Although the evidence in this matter was compelling, the other side did not have the self-awareness to understand what that meant, making for an almost impossible negotiation. Each time I was convinced we hit the final road block, Mr. Zuckerman would pull a rabbit out of his hat to progress the negotiation. He was responsive, available 24/7, and operated not only as a world class attorney, but as an "ad-hoc therapist" in what is necessarily a stressful process. He is the only lawyer I've ever encountered that not only has the tools to go up against the largest law firms in the nation, but also truly cares about his client, and will do the right thing to defend his client at all costs."

"I selected Jason to handle my case after consulting with three other lawyers because of his extensive SOX experience and negotiation skills. My decision paid off as he easily surpassed all of my expectations. He quickly analyzed the merits of my case and aggressively engaged my former employer to reach a favorable settlement, avoiding years of potential litigation. He was responsive, professional, ethical and a great advocate on my behalf. I truly believe that I could not have found a better lawyer to represent my interests. He would be the first person I would recommend if a colleague or friend were to ever need similar services. Put simply, Jason is a top notch lawyer who works tirelessly to achieve a positive outcome for his clients. It's easy to see why he is regarded as an expert in the field."

"Jason Zuckerman is the most focused, thoughtful and aggressive attorneys I have ever known, let alone had the pleasure to have on my side in a highly complex legal case. He brought well-honed legal insights and a rapid pace to our legal preparations. He forcefully brought those preparations to the opposing side, which gave them little choice but to engage with us until a positive settlement was reached. In addition, we found Jason to be extremely responsive at every step, even if it required working past midnight. His character is beyond reproach and his dedication through the entire process was unwavering. If I ever need someone in my legal court again, I won't hesitate for even a second, before I seek Jason's support."

"Jason is the consummate professional when it comes to SOX retaliation claims. He is, without question, one of the most deeply knowledgeable, technical, and astute attorneys in this very specialized body of law. During one of the most difficult times in my professional career, Jason not only provided exceptional legal guidance, but equally as important, he provided emotional support that was vital to my family and me. Jason ran circles around the "major national law firm" team that was assigned to defend my employer. In fact, Jason made them look silly at times. Jason always advocated my best interests, not his own. Jason is not only an exceptional attorney who helped my family to achieve a favorable outcome, but he is a friend. I've worked with major law firms throughout my career and when it comes to SOX and employment law matters, there is not a finer, more talented attorney than Jason Zuckerman."

"Jason did an exceptional job in quickly understanding the intricacies of my case, grasping not only his field of expertise of employment law, but also the violations of law and SEC Regulations that were central to my dispute. The overall strategy he utilized insured that opposing counsel was challenged and made clear that this case would simply not proceed based on a timetable convenient to them. Jason is thorough, accurate and seemingly working at all hours based on phone calls and correspondence. Fortunately Jason has a very down to earth personality, understands issues readily and can convey in understandable language current "legal" circumstances and probable outcomes. I would easily and thoroughly recommend Jason for issues related to a Sarbanes-Oxley or employment related dispute."

Resources About SOX Whistleblower Protection Law

The Sarbanes-Oxley whistleblower lawyers at leading whistleblower law firm Zuckerman Law has written extensively about whistleblower protections and is quoted frequently in the media on this topic. A sample of those blog posts and articles appears below:

Video Transcript

It seemed to come out of the blue. When David received a surprise visit from his boss, his stomach sank. He knew this couldn't be good, and he was right. After some small talk to allow the office staff to punch out for the end of the week, David was let go. No notice, no real explanation, except something about downsizing and David being a poor fit for the company. Yet no one else was being laid off, and David had a consistent record of strong performance.

David wasn't even given time to clear out his office or say goodbye to colleagues. He was told that they'd clean out his desk and leave his personal effects at the front desk for him to pick up at a later time. He managed to grab the picture he kept on his desk on his way out the door. It was the picture that always kept him going during difficult times, and there had been plenty of those as of late. It was that picture of his children that had always led him to remain honest and true to his values at work.

Lately, David was under pressure at work to manipulate earnings to meet targets that would enable management to get large bonuses. David knew that reporting false earnings to the SCC and shareholders violates SCC rules and harms shareholders. Therefore, he refused to acquiesce in his employer's earnings management scheme.

As a result, management became very hostile to him. He'd been denied a promotion that was rightfully his and he'd suffered alienation and isolation from his senior management and peers who were eager to get large bonuses from this earnings management scheme. He never thought it would come to him losing his job, but he stood his ground and now needed someone to help protect him and his rights.

Despite his loyal service to the company, he found himself out of work and worried about how he would support his family. That's when he turned to the Zuckerman Law Firm, a Washington D.C. firm that represents whistleblowers nationwide and has substantial experience litigating Sarbanes-Oxley whistleblower claims. David called them immediately and setup a consultation.

The firm explained to David his legal rights and options and crafted a strategy for David to utilize whistleblower laws to obtain a wide range of remedies, including lost wages, emotional distress damages, and damages for harm to reputation. David also learned from the firm that some whistleblowers laws may provide substantial rewards to whistleblowers. Thanks to the Zuckerman Law Firm, David is well on his way to seeking relief for the retaliation that he suffered.

If you or someone you know has been a victim of whistleblower retaliation, don't delay. Many whistleblower retaliation laws have short statutes of limitations. Contact Zuckerman Law to learn about your rights. Call 202-262-8959 or visit zuckermanlaw.com.

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Sarbanes-Oxley Corporate Whistleblower Protection Law - Zuckerman Law

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Section 806 of the Sarbanes-Oxley Act provides robust protection for corporate whistleblowers. As retaliation can derail a career, some SOX whistleblowers have obtained substantial recoveries, including recent jury verdicts of $11M and $5M in SOX whistleblower retaliation cases.

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Who is protected under the whistleblower protection provision of the Sarbanes-Oxley Act?

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Who is protected under the whistleblower protection provision of the Sarbanes-Oxley Act?

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The whistleblower protection provision of SOX protects:

employees, officers and agents of publicly traded companies (companies issuing securities registered under section 12 of the Securities Exchange Act of 1934 or required to file reports under section 15(d) of the Securities Exchange Act of 1934);

employees of any subsidiary or affiliate of a publicly traded company whose financial information is included in the consolidated financial statements of such company;

employees of contractors or subcontractors of public companies, including the attorneys and accountants who prepare public companies' SEC filings;[i] and

employees of nationally recognized statistical rating organizations (as defined in section 3(a) of the Securities Exchange Act of 1934 (15 U.S.C. 78c).

There are however, some limitations on SOX coverage for employees of contractors of publicly traded companies:

"Contractor" is limited to business relationships where "performance of a contract will take place over a significant period of time."

SOX "protects contractor employees only to the extent that their whistleblowing relates to 'the contractor ... fulfilling its role as a contractor for the public company, not the contractor in some other capacity.'" In other words, SOX protects a contractor employee who is in a position to detect and report securities violations - for example, the lawyers and accountants in the Enron scandal who were either directly or indirectly witness to the fraud.

SOX does not cover contractor employees who experience retaliation that is unrelated to the provision of services to a public company. [ii] A contractor's fraudulent practices do not become subject to § 1514A merely because that company incidentally has a contract with a public company.[iii]

[i] See Lawson, 134 S. Ct. 1158.

[ii] See Anthony v. Nw. Mut. Life Ins. Co., 130 F. Supp. 3d 644 (N.D.N.Y. 2015); see also Gibney v. Evolution Mktg. Research, LLC, 25 F. Supp. 3d 741 (E.D. Pa. 2014).

[iii] Fleszar v. U.S. Dep't of Labor, 598 F.3d 912, 915 (7th Cir. 2010)

Supreme Court Holds that Sarbanes-Oxley Protects Employees of Contractors of Public Companies

In March 2014, the Supreme Court clarified that employees of contractors of public companies, including the attorneys and accountants who prepare the SEC filings of public companies, are covered under Section 806. See Lawson v. FMR LLC, 134 S. Ct. 1158 (2014). Subsequent interpretations of Lawson, however, suggest that the disclosures of a contractor's employee are protected only if those disclosures pertain to fraud perpetrated by a publicly traded company, as opposed to wrongdoing by a private contractor.

Jackie Lawson worked for Fidelity Brokerage Services, a private subsidiary of the private company FMR Corp., which manages the day-to-day operations of publicly traded Fidelity mutual funds.[2] As is common in the mutual-fund industry, the Fidelity investment company that files reports with the SEC (and is covered under Section 806) does not direct the personnel who operate the funds on a day-to-day basis. Lawson brought a SOX claim alleging retaliation for disclosing securities violations, including improper retention of advisory fees. The district court held that Lawson is a covered employee under Section 806, but the First Circuit reversed, holding that SOX protects only employees of publicly traded companies.

In a 6-3 decision, the Supreme Court reversed, holding that SOX protects employees of contractors, subcontractors, and agents of public companies. Lawson, 134 S. Ct. at 1176. The majority relied primarily on the plain meaning of SOX but also based its decision on an extensive examination of the legislative history and purpose of the statute. In particular, the Court focused on references in the legislative history to outside auditors and attorneys who suffered retaliation after blowing the whistle on accounting fraud at Enron. The Court concluded that protecting employees of contractors of public companies is essential to preventing another Enron.

In the wake of Lawson, the U.S. District Court for the Eastern District of Pennsylvania interpreted a limiting principle for SOX coverage of employees of public companies' contractors and subcontractors. See Gibney v. Evolution Mktg. Research, LLC, 25 F. Supp. 3d 741 (E.D. Pa. 2014). Leo Gibney was employed by Evolution Marketing Research ("Evolution"), a private consulting company that contracted its services out to many publicly traded companies, including the pharmaceutical giant Merck. Evolution terminated Gibney's employment after he reported to his supervisor that Evolution was fraudulently overbilling Merck for its services. Gibney brought a SOX claim, and the district court held that even though Gibney was a protected employee and had reported securities fraud, SOX did not apply because it protects only disclosures aimed at preventing fraud perpetrated by, rather than against, publicly traded companies. Id. at 747-48. The court expressed concern that permitting Gibney's claim to proceed would transform SOX into a general retaliation statute that would apply to any private company that transacts business with a public company. While Lawson will probably generate an increase in SOX claims, Gibney suggests that courts will likely adopt limiting principles that narrow the scope of SOX coverage for employees of contractors and subcontractors of public companies.

Thereafter, the U.S. District Court for the Northern District of New York held, consistent with Gibney, that SOX does not protect employees of contractors whose disclosures concern only the contractors' violations of federal securities laws. See Anthony v. Nw. Mut. Life Ins. Co., 130 F. Supp. 3d 644 (N.D.N.Y. 2015). That is, "[a] private company's fraudulent practices do not become subject to § 1514A merely because that company incidentally has a contract with a public company." Id. at 652. The court enunciated two limitations on the scope of SOX whistleblower protection:

First, the whistleblowing must relate to the contractor's provision of services to the public company. Thus, § 1514A only covers contractors insofar as they are firsthand witnesses to corporate fraud at a public company-for example, the lawyers and accountants in the Enron scandal who facilitated and contributed to the fraud. It does not cover contractor employees who experience retaliation that is unrelated to the provision of services to a public company. The second limitation is that § 1514A is concerned with public company fraud, whether committed by the public company itself or through its contractors. . . . The effect of these limitations is to restrict § 1514A to situations where a contractor employee is functionally acting as an employee of a public company, and in that capacity, is a witness to fraud by the public company. Id. (citations omitted).

A ruling by a U.S. district court in Wisconsin clarified that, for § 1514A to apply, an actual employment relationship must exist between the plaintiff and the alleged retaliator. See Bogenschneider v. Kimberly Clark Glob. Sales, LLC, 2015 WL 796672 (W.D. Wis. Feb. 25, 2015). Bret Bogenschneider, a former employee of Kimberly Clark, claimed that both Kimberly Clark and its law firm, Godfrey & Kahn, had retaliated against him after he reported alleged tax fraud by Kimberly Clark. Citing Lawson, Bogenschneider argued that Godfrey & Kahn was an "agent" of Kimberly Clark and so could be held liable under § 1514A for retaliation. The district court rejected this argument and dismissed the claim against the law firm, stating:

Although the Court [in Lawson] listed "law firms" in its question, this was in the context of an employee of the law firm, so Lawson does not help plaintiff. . . . Regardless whether Godfrey & Kahn may have participated in any of the alleged retaliation, the law firm is not covered by § 1514A because the firm was not plaintiff's employer.

Whistleblower Lawyers Representing Sarbanes-Oxley Whistleblowers

We have assembled a team of leading whistleblower lawyers to provide top-notch representation to Sarbanes-Oxley (SOX) whistleblowers. Recently Washingtonian magazine named two of our attorneys top whistleblower lawyers. U.S. News and Best Lawyers® have named Zuckerman Law a Tier 1 Law Firm in the Washington D.C. metropolitan area.

The whistleblower lawyers at Zuckerman Law have substantial experience litigating Sarbanes Oxley whistleblower retaliation claims and have achieved substantial recoveries for officers, executives, accountants, auditors, and other senior professionals. To schedule a free preliminary consultation, click here or call us at 202-262-8959.

Matt Stock is a Certified Public Accountant, Certified Fraud Examiner and former KPMG external auditor. As an auditor, Mr. Stock developed an expertise in financial statement analysis, internal controls testing and fraud recognition, and he uses his auditing experience to help whistleblowers investigate and disclose complex financial frauds to the government and obtain damages for retaliation. He is lead author of SEC Whistleblower Program: Tips from SEC Whistleblower Attorneys to Maximize an SEC Whistleblower Award.

Both Bachman and Zuckerman served in senior positions at the Office of Special Counsel, where they oversaw investigations of whistleblower retaliation claims and whistleblower disclosures, and enforced the Whistleblower Protection Act.

Eric Bachman has substantial experience litigating precedent-setting employment cases. His wins include a $100 million settlement in a disparate impact Title VII class action and a $16 million class action settlement against a major grocery chain. Having served as Special Litigation Counsel in the Civil Rights Division of the Department of Justice and as lead or co-counsel in numerous jury trials, Bachman is ready to go the distance to obtain the relief that you deserve.

Bachman and Zuckerman served on the Department of Labor's Whistleblower Protection Advisory Committee, which makes recommendations to the Secretary of Labor to improve OSHA's administration of federal whistleblower protections.

Jason Zuckerman was recognized by Washingtonian magazine as a "Top Whistleblower Lawyer" in 2017, 2015, 2009, and 2007, selected by his peers to be included in The Best Lawyers in America® in the category of employment law (2011-2017), and selected by his peers to be listed in SuperLawyers(2012 and 2015-2017) in the category of labor and employment law. Zuckerman is rated 10 out of 10 by Avvo, based largely on client reviews, and rated AV Preeminent® by Martindale-Hubbell based on peer reviews.

The firm has published extensively on whistleblower rights and protections, and regularly speaks nationwide at seminars and continuing legal education conferences. We blog about new developments in whistleblower law at the Whistleblower Protection Blog.

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Who is protected under the whistleblower protection provision of the Sarbanes-Oxley Act? - Zuckerman Law

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The whistleblower protection provision of SOX protects: employees, officers and agents of publicly traded companies (companies issuing securities registered under section 12 of the Securities Exchange Act of 1934 or required to file reports under section 15(d) of the Securities Exchange Act of 1934); employees of any subsidiary or affiliate

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What whistleblowing disclosures are protected under the Sarbanes-Oxley Act?

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What whistleblowing disclosures are protected under the Sarbanes-Oxley Act?

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Whistleblowers are protected under SOX for providing information, causing information to be provided, or otherwise assisting in an investigation regarding any conduct disclosing conduct that they reasonably believe violates:

federal criminal prohibitions against securities fraud, bank fraud mail fraud, or wire fraud;

any rule or regulation of the Securities and Exchange Commission ("SEC"); 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 federal regulatory or law enforcement agency;

any Member of Congress or any committee of Congress; or

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).

Significantly, SOX protects internal disclosures, such as an employee raising a concern to a supervisor about misleading financial data in a SEC filing.

SOX also prohibits retaliation for filing, causing to be filed, or otherwise assisting in a proceeding filed or about to be filed relating to:

federal criminal prohibitions against securities fraud, bank fraud mail fraud, or wire fraud;

any rule or regulation of the Securities and Exchange Commission ("SEC"); or

any provision of federal law relating to fraud against shareholders.

For more information about protections and remedies for corporate whistleblowers, download our free guide Sarbanes-Oxley Whistleblower Protection: Robust Protection for Corporate Whistleblowers.

If you are seeking representation in a Sarbanes-Oxley whistleblower case, click , or call us at 202-262-8959 to schedule a free preliminary consultation.

ARB Sylvester Decision Construing SOX Protected Whistleblowing

In May of 2011, the ARB issued a seminal decision in Sylvester v. Parexel, which adopted the following broad construction of SOX protected conduct:

SOX complainants need only show that they reasonably believed the conduct complained about violated a relevant law. Sylvester v. Parexel Int'l LLC, ARB Case No. 07-123, at 14 (ARB May 25, 2011).

An employee need not wait until misconduct occurs to make a protected disclosure, so long as the employee "reasonably believes that the violation is likely to happen." at 16.

A complainant need not allege shareholder fraud to receive SOX's protection. SOX was enacted to address "corporate fraud generally," and so a reasonable belief that a violation of "any rule or regulation of the Securities and Exchange Commission" could lead to fraud is protected, even if the violation itself is not fraudulent. For example, SOX would protect a disclosure about deficient internal controls over financial reporting, even though there is no allegation of actual fraud. at 19.

The reasonable belief standard does not require complainants to tell management or the authorities why their beliefs are reasonable. at 42.

SOX complainants no longer need to show that their disclosures "definitively and specifically" relate to the relevant laws. at 41.

SOX complainants do not need to establish criminal fraud. Requiring a complainant to allege, prove, or approximate the elements of fraud would be contrary to the purpose of the whistleblower protection provision. at 47.

Sylvester also held that the Platone standard was in conflict with "the plain language of the SOX whistleblower protection provision, which protects 'all good faith and reasonable reporting of fraud.'" Id. at 14-15, 30 (quoting 148 Cong. Rec. S7418-01, S7420).

The Second, Third, Sixth, and Eighth Circuits and several district courts have adopted the Sylvester standard of SOX protected conduct, and no federal court has rejected the reasoning in Sylvester. See Beacom v. Oracle America, Inc., No. 15-1729, 2016 WL 3144730, at 3 (8th Cir. June 6, 2016) (expressly adopting the Sylvester standard); Rhinehimer v. U.S. Bancorp Invs., Inc., 787 F.3d 797 (6th Cir. 2015); Nielsen v. AECOM Tech. Corp., 762 F.3d 214, 220-21 (2d Cir. 2014) (granting Skidmore deference to Sylvester); Wiest v. Lynch, 710 F.3d 121 (3d Cir. 2013) (according Chevron deference to Sylvester); Stewart v. Doral Fin. Corp., 997 F. Supp. 2d 129, 135-36 (D.P.R. 2014) (adopting the Sylvester standard); Leshinsky v. Telvent GIT, S.A., 942 F. Supp. 2d 432, 443 (S.D.N.Y. 2013).

Recently the Sixth Circuit issued an opinion in Rhinehimer v. U.S. Bancorp Investments, Inc., adopting the Sylvester standard and affirming a jury verdict for a whistleblower who disclosed unsuitability fraud. Rhinehimer, 787 F.3d at 811-13. Rhinehimer agrees with the ARB's observation in Sylvester "that an interpretation demanding a rigidly segmented factual showing justifying the employee's suspicion [referring to Platone] undermines this purpose and conflicts with the statutory design, which turns on employees' reasonable belief rather than requiring them to ultimately substantiate their allegations." Id. at 810. In addition, Rhinehimer suggests that the issue of objective reasonableness is rarely amenable to summary disposition:

"[T]he issue of objective reasonableness should be decided as a matter of law only when no reasonable person could have believed that the facts [known to the employee] amounted to a violation" or otherwise justified the employee's belief that illegal conduct was occurring. If, on the other hand, "reasonable minds could disagree about whether the employee's belief was objectively reasonable, the issue cannot be decided as a matter of law."

Id. at 811-12 (citations omitted).

At trial, the jury found that U.S. Bancorp Investments ("USBII") disciplined and fired Michael Rhinehimer in retaliation for alerting one of his superiors to unsuitable trades a coworker made to the detriment of an elderly client. Rhinehimer's manager expressly admitted that he gave Rhinehimer a written warning for opposing the unsuitable trades because Rhinehimer's complaint "prompted a FINRA investigation . . . and anybody associated with this was really feeling the heat." Id. at 804. In addition, the manager warned Rhinehimer that if he were to sue the bank, his career in the city would be over. The bank placed Rhinehimer on a performance improvement plan requiring him to increase his revenue to $40,000 per month. Shortly thereafter, the bank terminated his employment.

On appeal, USBII argued that, under Platone, Rhinehimer was required to establish facts from which a reasonable person could infer each of the elements of an unsuitability fraud claim, including the misrepresentation or omission of material facts and that the broker acted with intent or reckless disregard for the client's needs. The Sixth Circuit held that the evidence was more than sufficient to sustain the jury's finding that Rhinehimer reasonably believed that certain trades constituted unsuitability fraud. Id. at 812. And the court noted that the "employee's reasonable belief is a simple factual question requiring no subset of findings that the employee had a justifiable belief as to each of the legally-defined elements of the suspected fraud." Id. at 806.

Rhinehimer is an important development for corporate whistleblower rights and protections in that it restores the original intent of SOX whistleblower protection. A whistleblower's reasonable belief is now assessed in a manner consistent with similar anti-retaliation statutes; i.e., the employee must subjectively believe that there is a violation, and the belief must be objectively reasonable. And as federal courts continue to adopt or defer to the ARB's construction of SOX protected conduct as articulated in Sylvester, SOX whistleblowers are more likely to survive summary judgment.

This decision is part of a trend, both at the DOL and in federal courts, of broadly construing SOX's protection of whistleblowers and rejecting prior decisions that imposed a heightened standard of objective reasonableness.

In May 2016, the Fourth Circuit held that a SOX whistleblower can establish the reasonableness of his or her belief by proffering corroborating testimony from coworkers. See Deltek, Inc. v. Dep't of Labor, Admin. Review Bd., No. 14-2415, 2016 WL 2946570 (4th Cir. May 20, 2016). Dinah Gunther began working for Deltek, Inc., as a financial analyst in 2008. Gunther, whose position was within Deltek's IT department, lacked a college degree but had experience as an executive assistant and workflow manager. Soon after beginning work at Deltek, Gunther noticed a lack of clear procedure and documentation for Deltek's billing disputes with Verizon Business ("Verizon"). She suspected Deltek employees were obscuring the IT department's financial condition by subjecting Verizon to unfounded billing disputes, thereby concealing a shortfall in Deltek's telecommunications budget. Gunther's coworker, who was responsible for managing the billing relationship between Deltek and Verizon, agreed with her concern. Gunther reported the situation to her immediate supervisor, after which she faced hostility in the workplace. She then expressed her concerns of ongoing fraud in a letter to Deltek's general counsel, which she copied to the SEC. Deltek's general counsel met with Gunther and asked her to gather information about her concerns. Following their meeting, the general counsel investigated Gunther's report and found no improper activity had occurred, but Gunther noticed her coworkers shredding documents.

After continuing to experience mistreatment at work, Gunther informed Deltek's vice president of human resources that she was experiencing stress-related medical issues that were affecting her work. Gunther accepted Deltek's offer of paid leave, conditioned on Gunther's being able to return to work with 24 hours' notice. Upon taking leave, Gunther filed a SOX complaint with the Occupational Safety and Health Administration ("OSHA"). Later, Gunther attempted to return to work on a Monday after having given notice of her return the prior Saturday. But a Deltek attorney and the vice president of human resources met her at the office to say she could not yet return to work, although they assured her she still had a job. The following day, Deltek fired Gunther for being confrontational and disruptive in that meeting.

OSHA concluded that there was no violation of SOX. Gunther appealed, and an administrative law judge ("ALJ") held Deltek liable for retaliating against her. The ARB affirmed, and Deltek appealed. The Fourth Circuit determined that Gunther's belief that Deltek was violating securities laws was reasonable. Id. at *7.

Deltek argued that Gunther's belief was not objectively reasonable because she lacked the education and experience necessary to recognize securities fraud. The Fourth Circuit rejected this argument, stating that consideration of the "factual circumstances," including information Gunther learned from coworkers, was warranted. See id. The Fourth Circuit agreed with the ALJ's determination, which the ARB affirmed, that "in forming her belief Gunther reasonably relied on her close dealings with [her coworker], who did have extensive experience in Verizon invoicing . . . [and] who was himself a 'credible, convincing witness at the hearing.'" Id. Therefore, Gunther's belief was reasonable, and her activity was protected under SOX. Id.

In another broad interpretation of SOX protected conduct, the ARB held in March 2016 that disclosures relating to violations of state wage laws constitute protected conduct under SOX whenthey implicate the federal mail or wire fraud statute. See Dietz v. Cypress Semiconductor Corp., ARB Case No. 15-017, 2016 WL 1389927, at *5-6 (ARB Mar. 30, 2016). Timothy Dietz worked for a company that was acquired by Cypress Semiconductor Corp. ("Cypress") in 2012. Following the acquisition, Cypress hired Dietz as a program manager. Cypress required certain employees to participate in a bonus plan but did not disclose this plan to employees of the acquired company until they accepted jobs with Cypress. After receiving complaints about the bonus plan from subordinates, Dietz internally reported concerns that the plan violated state laws and that important aspects of the plan, such as compulsory salary deductions, had not been disclosed to employees of the acquired company. Thereafter, Dietz was given a disciplinary memo and was constructively fired. After a hearing, an ALJ held Cypress liable for retaliation, and the company appealed.

Cypress argued that Dietz's disclosures were not protected under SOX because the state laws Cypress allegedly violated are not enumerated in SOX's whistleblower protection provision. The ARB rejected this argument, reasoning that the plaintiff's disclosures constituted protected activity because they related not only to his employer's violation of state law, but also to the employer "knowingly misrepresenting or concealing material facts." Id. at *6-7. Without determining whether Dietz's complaints revealed actual fraud, the ARB held they were protected under SOX because they evidenced a violation of the federal statute prohibiting mail and wire fraud. See id.

Dietz clarifies, therefore, that SOX protects a broad range of disclosures, including any fraud that is reasonably believed to involve the use of interstate mail, wires, or banks.[2]

However, some courts go against the tide and continue to construe SOX protected conduct narrowly. For example, in Diaz v. Transatlantic Reinsurance Co., the Southern District of New York held that disclosing a violation of an employer's conflict-of-interest policy is not protected under SOX because "the conduct reported by a whistleblower must deal with a violation of . . . federal securities law or the enumerated crimes of mail and wire fraud." Diaz v. Transatlantic Reinsurance Co., No. 1:16-cv-01355, slip op. at 10 (S.D.N.Y. June 22, 2016) (emphasis in original). Ileana Diaz was assistant manager of Transatlantic Reinsurance Co.'s ("Transatlantic") claims department when she reported a potential conflict of interest arising from the executive vice president's control over the Transatlantic's litigation matters. Specifically, the executive vice president was responsible for assigning work to, and approving invoices from, her husband's law firm, which received more than $13 million in legal fees from Transatlantic in 2014. The court held that Diaz's disclosure was not protected, stating that her "bald assertions that she 'expressed concern about . . . the effect [the purported conflicts of interest] could have on Alleghany's shareholders' and 'on Defendant's reputation in the reinsurance industry' are precisely the type of conclusory statements that cannot sustain a § 1514A claim." Id. at 10-11 (alterations in original) (citation omitted).

[1] See, e.g., Wiggins v. ING U.S., Inc., No. 3:14-CV-01089-JCH, 2015 WL 8779559 (D. Conn. Dec. 15, 2015). In Wiggins, a U.S. district court in Connecticut held that the heightened Rule 9(b) pleading standard for fraud claims does not apply to SOX retaliation claims. Id. at *3. The court held, furthermore, that a whistleblower can plead that she had a reasonable belief that her employer violated one of Section 1514A's enumerated fraud provisions without alleging specifically that she believed that the employer's conduct satisfied all of the elements of the federal statute or SEC rule that allegedly was violated. See id. at *5-7. The court found that the plaintiff's complaint sufficiently "tethered" her subjective belief to a violation of Section 1514A's enumerated provisions, where the plaintiff was trained in federal securities laws and her complaint identified specific federal statutes and regulations, the responsibilities the employer had pursuant to those laws, and the specific actions that formed the basis of the plaintiff's belief that the employer was breaching those responsibilities. Id.

[2] Another notable takeaway from Dietz is that constructive discharge can be established not only where the employer has created "working conditions so intolerable that a reasonable person in the employee's position would feel forced to resign," but also where the employer "acts in a manner so as to have communicated to a reasonable employee that [he] will be terminated, and the . . . employee resigns." See Dietz, 2016 WL 1389927, at *7 (alterations in original). Under this standard, an employee facing "imminent discharge" can potentially establish a constructive discharge claim. See id.

Under the Anti-Retaliation Provision of the Sarbanes-Oxley Act the first element is to show that the corporate whistle blower engaged what's known as protected activity. I.e, did they blow the whistle on something that is protected by the statute? What is that? It means that the employee blew the whistle either the employer to the US Congress, to the SEC, or any agency of the US government about wire fraud, mail fraud, shareholder fraud, or a violation of any rule or regulation of the Securities and Exchange Commission. What's key is the employee need not prove that they blew the whistle on an actual violation of law. Instead, they just have to show that they had a reasonable belief, albeit an objectively reasonable belief, that there was a potential violation of one of those laws.

Experienced Sarbanes-Oxley (SOX)Whistleblower Attorneys

We have assembled a team of leading whistleblower lawyers to provide top-notch representation to Sarbanes-Oxley (SOX) whistleblowers. Recently Washingtonian magazine named two of our attorneys top whistleblower lawyers. U.S. News and Best Lawyers® have named Zuckerman Law a Tier 1 Law Firm in the Washington D.C. metropolitan area.

The whistleblower lawyers at Zuckerman Law have substantial experience litigating Sarbanes Oxley whistleblower retaliation claims and have achieved substantial recoveries for officers, executives, accountants, auditors, and other senior professionals. To schedule a free preliminary consultation, click here or call us at 202-262-8959.

Matt Stock is a Certified Public Accountant, Certified Fraud Examiner and former KPMG external auditor. As an auditor, Mr. Stock developed an expertise in financial statement analysis, internal controls testing and fraud recognition, and he uses his auditing experience to help whistleblowers investigate and disclose complex financial frauds to the government and obtain damages for retaliation. He is lead author of SEC Whistleblower Program: Tips from SEC Whistleblower Attorneys to Maximize an SEC Whistleblower Award.

Both Bachman and Zuckerman served in senior positions at the Office of Special Counsel, where they oversaw investigations of whistleblower retaliation claims and whistleblower disclosures, and enforced the Whistleblower Protection Act.

Eric Bachman has substantial experience litigating precedent-setting employment cases. His wins include a $100 million settlement in a disparate impact Title VII class action and a $16 million class action settlement against a major grocery chain. Having served as Special Litigation Counsel in the Civil Rights Division of the Department of Justice and as lead or co-counsel in numerous jury trials, Bachman is ready to go the distance to obtain the relief that you deserve.

Bachman and Zuckerman served on the Department of Labor's Whistleblower Protection Advisory Committee, which makes recommendations to the Secretary of Labor to improve OSHA's administration of federal whistleblower protections.

Jason Zuckerman was recognized by Washingtonian magazine as a "Top Whistleblower Lawyer" in 2017, 2015, 2009, and 2007, selected by his peers to be included in The Best Lawyers in America® in the category of employment law (2011-2017), and selected by his peers to be listed in SuperLawyers(2012 and 2015-2017) in the category of labor and employment law. Zuckerman is rated 10 out of 10 by Avvo, based largely on client reviews, and rated AV Preeminent® by Martindale-Hubbell based on peer reviews.

The firm has published extensively on whistleblower rights and protections, and regularly speaks nationwide at seminars and continuing legal education conferences. We blog about new developments in whistleblower law at the Whistleblower Protection Blog.

Leading whistleblower law firm Zuckerman Law has written extensively about whistleblower protections and is quoted frequently in the media on this topic. A sample of those blog posts and articles appears below:

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What whistleblowing disclosures are protected under the Sarbanes-Oxley Act? - Zuckerman Law

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Whistleblowers are protected under SOX for providing information, causing information to be provided, or otherwise assisting in an investigation regarding any conduct disclosing conduct that they reasonably believe violates: federal criminal prohibitions against securities fraud, bank fraud mail fraud, or wire fraud; any rule or regulation of the Securities and

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Does the Sarbanes-Oxley Act protect whistleblowing about potential violations of federal securities laws?

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Does the Sarbanes-Oxley Act protect whistleblowing about potential violations of federal securities laws?

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A SOX retaliation plaintiff need not demonstrate that they disclosed an actual violation of securities law; only that they reasonably believed that their employer was defrauding shareholders or violating an SEC rule.[i] Indeed, a reasonable but mistaken belief is protected under SOX. "To demonstrate that a plaintiff engaged in a protected activity, a plaintiff must show that [s]he had both a subjective belief and an objectively reasonable belief that the conduct [s]he complained of constituted a violation of relevant law."[ii]

Requiring a SOX complainant to demonstrate that they disclosed an actual violation is contrary to Congressional intent in that the legislative history of Section 806 specifically states that the reasonableness test "is intended to include all good faith and reasonable reporting of fraud, and there should be no presumption that reporting is otherwise, absent specific evidence."[iii]

"A whistleblower complaint concerning a violation about to be committed is protected as long as the employee believes that the violation is likely to happen. Such a belief must be grounded in facts known to the employee, but the employee need not wait until a law has actually been broken to safely register his or her concern."[i]

As a New York federal judge recently pointed out, limiting SOX whistleblower protection to disclosures of actual fraud "would lead to absurd results" by encouraging an employee to delay blowing the whistle until a potential violation has ripened to an actual violation.[ii] Section 806 was "designed to encourage insiders to come forward without fear of retribution," and therefore "[i]t would frustrate the purpose of Sarbanes-Oxley to require an employee, who knows that a violation is imminent, to wait for the actual violation to occur when an earlier report possibly could have prevented it."[iii]

[i] Sylvester v. Parexel, ARB Case No. 07-123, 2011 WL 2165854 at *13 (DOL May 25, 2011).

[ii] Murray v. UBS Securities, LLC, 2017 WL 1498051 (S.D.N.Y. Apr. 25, 2017).

[iii] Id. (citations omitted).

[i] Wiest v. Lynch, 710 F.3d 121, 132 (3d Cir. 2013)

[ii] Leshinsky v. Telvent GIT, S.A., 942 F.Supp.2d 432, 444 (S.D.N.Y.2013) (internal quotation marks and citations omitted).

[iii] Legislative History of Title VIII of HR 2673: The Sarbanes-Oxley Act of 2002, Cong. Rec. S7418, S7420 (daily ed. July 26, 2002), available at 2002 WL 32054527.

And as noted in Van Elswyk v. RBS Securities, Inc., (D. Conn. Aug. 9, 2017):

"The objective prong of the reasonable belief test focuses on the `basis of knowledge available to a reasonable person in the circumstances with the employee's training and experience.'" Nielsen, 762 F.3d at 221 (quoting Sharkey v. J.P. Morgan Chase & Co., 805 F. Supp. 2d 45, 55 (S.D.N.Y. 2011)). Of course, "[m]any employees are unlikely to be trained to recognize legally actionable conduct by their employers." Id. As several circuit courts have made clear, "[i]f reasonable minds could disagree on this issue, the objective reasonableness of an employee's belief should not be decided as a matter of law. . . ." Allen v. Admin. Rev. Bd., 514 F.3d 468, 477-78 (5th Cir. 2008) (citing Lipphardt v. Durango Steakhouse of Brandon, Inc., 267 F.3d 1183, 1188 (11th Cir. 2001); Fine v. Ryan Int'l Airlines, 305 F.3d 746, 752-53 (7th Cir. 2002)).

SOX Whistleblower Protection Law

We represent corporate whistleblowers nationwide in high-stakes whistleblower retaliation cases and have obtained substantial recoveries for CEOs, CFOs, auditors, accountants, risk managers, CISOs, and other executives and senior professionals. We have recovered more than $15 million for corporate whistleblowers and have obtained settlements in excess of one million dollars in at least five SOX matters. Click here to read reviews from senior executives and professionals that we represented in whistleblower retaliation matters.

To learn more about the Sarbanes-Oxley corporate whistleblower protection law, download our free guide Sarbanes-Oxley Whistleblower Protection: Robust Protection for Corporate Whistleblowers.

SEC Whistleblower Rewards

We are also one of the leading law firms representing whistleblowers worldwide before the SEC, and indeed our attorneys represented whistleblowers at the SEC before the enactment of the Dodd-Frank Act. We helped shape the SEC rules implementing the SEC Whistleblower Program, and have represented whistleblowers in disclosing a wide range of violations of federal securities laws, including:

See our recent article in Forbes: One Billion Reasons Why The SEC Whistleblower-Reward Program Is Effective. If you have information you would like to report to the SEC, contact an experienced SEC whistleblower attorney at Zuckerman Law for a free, confidential consultation by calling 202-262-8959.

To learn more about the SEC Whistleblower Program, download our free guide SEC Whistleblower Program: Tips from SEC Whistleblower Attorneys to Maximize an SEC Whistleblower Award.
5 Tips for SEC Whistleblowers and Lessons Learned from SEC Whistleblower Awards
Qualifying for an SEC Whistleblower Award: Tips for SEC Whistleblowers

SEC Whistleblower Program and SEC Whistleblower Awards

Why Hire Leading SOX Whistleblower Law Firm Zuckerman Law

Our team includes a Certified Public Accountant, Certified Fraud Examiner and former KPMG external auditor. Prior to becoming a lawyer, Matt Stock developed an expertise in financial statement analysis, internal controls testing and fraud recognition. He uses his auditing experience to help IRS, CFTC and SEC whistleblowers investigate and disclose complex financial frauds to the government.

Both Eric Bachman and Jason Zuckerman were appointed by the Secretary of Labor to serve on the Department of Labor's Whistleblower Protection Advisory Committee, which makes recommendations to improve OSHA's administration of federal whistleblower protections.

Bachman and Zuckerman also served in senior positions at the U.S. Office of Special Counsel, the federal agency charged with protecting whistleblowers in the federal government. At OSC, they oversaw investigations of whistleblower claims and enforced the Whistleblower Protection Act.

Jason Zuckerman was recognized by Washingtonian magazine as a "Top Whistleblower Lawyer" in 2015, 2009, and 2007 selected by his peers to be included in The Best Lawyers in America® in the category of employment law (2011-2017), and selected by his peers to be listed in SuperLawyers (2012 and 2015-2017) in the category of labor and employment law. He is rated 10 out of 10 by Avvo, based largely on client reviews, and rated AV Preeminent® by Martindale-Hubbell based on peer reviews.

Eric Bachman has substantial experience litigating precedent-setting employment cases. His wins include a $100 million settlement in a disparate impact Title VII class action and a $16 million class action settlement against a major grocery chain. Having served as Special Litigation Counsel in the Civil Rights Division of the Department of Justice and as lead or co-counsel in numerous jury trials, Bachman is trial-tested and ready to fight for you to obtain the relief that you deserve.

The firm has published extensively on whistleblower rights and protections, and regularly speaks nationwide at seminars and continuing legal education conferences. We blog about new developments in whistleblower law at the Whistleblower Protection Blog.

Client Reviews from Executives and Senior Professionals in SOX Whistleblower Retaliation Matters

"Jason is the consummate professional when it comes to SOX retaliation claims. He is, without question, one of the most deeply knowledgeable, technical, and astute attorneys in this very specialized body of law. During one of the most difficult times in my professional career, Jason not only provided exceptional legal guidance, but equally as important, he provided emotional support that was vital to my family and me. Jason ran circles around the "major national law firm" team that was assigned to defend my employer. In fact, Jason made them look silly at times. Jason always advocated my best interests, not his own. Jason is not only an exceptional attorney who helped my family to achieve a favorable outcome, but he is a friend. I've worked with major law firms throughout my career and when it comes to SOX and employment law matters, there is not a finer, more talented attorney than Jason Zuckerman."

"Jason is everything you could possibly ask for an an attorney: highly intelligent, thoughtful, and extraordinarily knowledgeable in his specialty of the law. In a very short period of time Jason was able to assimilate a laundry list of details and offer a compelling strategy on how to effectively proceed. Moreover, he is extremely responsive."

"Jason did an exceptional job in quickly understanding the intricacies of my case, grasping not only his field of expertise of employment law, but also the violations of law and SEC Regulations that were central to my dispute. The overall strategy he utilized insured that opposing counsel was challenged and made clear that this case would simply not proceed based on a timetable convenient to them. Jason is thorough, accurate and seemingly working at all hours based on phone calls and correspondence. Fortunately Jason has a very down to earth personality, understands issues readily and can convey in understandable language current "legal" circumstances and probable outcomes. I would easily and thoroughly recommend Jason for issues related to a Sarbanes-Oxley or employment related dispute."

"I selected Jason to handle my case after consulting with three other lawyers because of his extensive SOX experience and negotiation skills. My decision paid off as he easily surpassed all of my expectations. He quickly analyzed the merits of my case and aggressively engaged my former employer to reach a favorable settlement, avoiding years of potential litigation. He was responsive, professional, ethical and a great advocate on my behalf. I truly believe that I could not have found a better lawyer to represent my interests. He would be the first person I would recommend if a colleague or friend were to ever need similar services. Put simply, Jason is a top notch lawyer who works tirelessly to achieve a positive outcome for his clients. It's easy to see why he is regarded as an expert in the field."

"Jason Zuckerman is the most focused, thoughtful and aggressive attorneys I have ever known, let alone had the pleasure to have on my side in a highly complex legal case. He brought well-honed legal insights and a rapid pace to our legal preparations. He forcefully brought those preparations to the opposing side, which gave them little choice but to engage with us until a positive settlement was reached. In addition, we found Jason to be extremely responsive at every step, even if it required working past midnight. His character is beyond reproach and his dedication through the entire process was unwavering. If I ever need someone in my legal court again, I won't hesitate for even a second, before I seek Jason's support."

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Does the Sarbanes-Oxley Act protect whistleblowing about potential violations of federal securities laws? - Zuckerman Law

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A SOX retaliation plaintiff need not demonstrate that they disclosed an actual violation of securities law; only that they reasonably believed that their employer was defrauding shareholders or violating an SEC rule.[i] Indeed, a reasonable but mistaken belief is protected under SOX.

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Are SOX whistleblowers required to show that their disclosures relate “definitively and specifically” to a federal securities law?

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Are SOX whistleblowers required to show that their disclosures relate “definitively and specifically” to a federal securities law?

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To be protected under SOX, an employee's report "need not 'definitively and specifically' relate to one of the listed categories of fraud or securities violations in § 1514A."[i]

Whistleblowers are protected if they show that they reasonably believed that the conduct they complained of violated one of the enumerated violations in Section 806. Whistleblowers are not required, however, to tell management or the authorities why their beliefs are reasonable. Nor must their disclosures allege, prove, or approximate the elements of fraud.

All that SOX requires an employee to do is prove that they "reasonably believed" that their employer violated or is about to violate federal law.[ii] The focus here is "on the plaintiff's state of mind rather than on the defendant's conduct."[iii] This rule is informed by the court's recognition that, because "[m]any employees are unlikely to be trained to recognize legally actionable conduct by their employers," an employee's "belief" in their employer's wrongdoing is "central" to the analysis of SOX-protected conduct.[iv]

A Sixth Circuit opinion in a SOX case demonstrates the importance of broadly construing SOX protected conduct. In Rhinehimer v. U.S. Bancorp Investments, Inc,.[v] the plaintiff Michael Rhinehimer alerted one of his superiors to unsuitable trades that a coworker made to the detriment of an elderly client. In response, Mr. Rhinehimer's manager gave him a written warning. The manager admitted that the warning was motivated by the fact that Mr. Rhinehimer's complaint "prompted a FINRA investigation . . . and anybody associated with this was really feeling the heat." According to Mr. Rhinehimer, the manager then admonished Mr. Rhinehimer that if he sued the bank, then his career in the city would be over. U.S. Bancorp Investments ("USBII") placed Mr. Rhinehimer on a performance-improvement plan requiring him to increase his monthly revenue to $40,000. Shortly thereafter, the bank fired him.

At trial, a jury found that USBII disciplined and fired Mr. Rhinehimer in deliberate retaliation for raising his concerns about the unsuitable trades. On appeal, USBII argued, that Mr. Rhinehimer was required to establish facts from which a reasonable person could infer each of the elements of an unsuitability-fraud claim. These elements include the misrepresentation or omission of material facts, and that the broker acted with intent or reckless disregard for the client's needs.

The Sixth Circuit, however, held that SOX protects "all good faith and reasonable reporting of fraud," with a focus on "employees' reasonable belief rather than requiring them to ultimately substantiate their allegations." Therefore, "an interpretation demanding a rigidly segmented factual showing justifying the employee's suspicion undermines this purpose and conflicts with the statutory design." The Sixth Circuit affirmed the jury verdict because there was sufficient evidence to sustain the jury's finding that Mr. Rhinehimer reasonably believed that certain trades constituted unsuitability fraud. A contrary result would have resulted in employees-due to lack of tangible evidence-refraining from reporting fraud until after investors have already been harmed.

[i] Nielsen v. AECOM Tech. Corp., 762 F.3d 214, 224 (2d Cir. 2014)

[ii] Murray, 2017 WL 1498051, at *10.

[iii] Id., at *10 (quoting Guyden v. Aetna, Inc., 544 F.3d 376, 384 (2d Cir. 2008), superseded on other grounds by statute).

[iv] Id., at *9 (quoting Nielsen, 762 F.3d at 221 (alterations in original)).

[v] Rhinehimer v. U.S. Bancorp Invs., Inc., 787 F.3d 797 (6th Cir. 2015).

Sarbanes-Oxley (SOX) Whistleblower Lawyers

We represent corporate whistleblowers nationwide in high-stakes whistleblower retaliation cases and have obtained substantial recoveries for CEOs, CFOs, auditors, accountants, risk managers, CISOs, and other executives and senior professionals. We have recovered more than $15 million for corporate whistleblowers and have obtained settlements in excess of one million dollars in at least five SOX matters. Click here to read reviews from senior executives and professionals that we represented in whistleblower retaliation matters.

To learn more about the Sarbanes-Oxley corporate whistleblower protection law, download our free guide Sarbanes-Oxley Whistleblower Protection: Robust Protection for Corporate Whistleblowers.

SEC Whistleblower Awards

We are also one of the leading law firms representing whistleblowers worldwide before the SEC, and indeed our attorneys represented whistleblowers at the SEC before the enactment of the Dodd-Frank Act. We helped shape the SEC rules implementing the SEC Whistleblower Program, and have represented whistleblowers in disclosing a wide range of violations of federal securities laws, including:

See our recent article in Forbes: One Billion Reasons Why The SEC Whistleblower-Reward Program Is Effective.

If you have information you would like to report to the SEC, contact an experienced SEC whistleblower attorney at Zuckerman Law for a free, confidential consultation by calling 202-262-8959.

To learn more about the SEC Whistleblower Program, download our free guide SEC Whistleblower Program: Tips from SEC Whistleblower Attorneys to Maximize an SEC Whistleblower Award.
5 Tips for SEC Whistleblowers and Lessons Learned from SEC Whistleblower Awards
Qualifying for an SEC Whistleblower Award: Tips for SEC Whistleblowers

SEC Whistleblower Program and SEC Whistleblower Awards

Why Hire Leading Whistleblower Firm Zuckerman Law

We have assembled a team of leading whistleblower lawyers to provide top-notch representation to Sarbanes-Oxley (SOX) whistleblowers. Recently Washingtonian magazine named two of our attorneys top whistleblower lawyers. U.S. News and Best Lawyers® have named Zuckerman Law a Tier 1 Law Firm in the Washington D.C. metropolitan area.

The whistleblower lawyers at Zuckerman Law have substantial experience litigating Sarbanes Oxley whistleblower retaliation claims and have achieved substantial recoveries for officers, executives, accountants, auditors, and other senior professionals. To schedule a free preliminary consultation, click here or call us at 202-262-8959.

Matt Stock is a Certified Public Accountant, Certified Fraud Examiner and former KPMG external auditor. As an auditor, Mr. Stock developed an expertise in financial statement analysis, internal controls testing and fraud recognition, and he uses his auditing experience to help whistleblowers investigate and disclose complex financial frauds to the government and obtain damages for retaliation. He is lead author of SEC Whistleblower Program: Tips from SEC Whistleblower Attorneys to Maximize an SEC Whistleblower Award.

Both Bachman and Zuckerman served in senior positions at the Office of Special Counsel, where they oversaw investigations of whistleblower retaliation claims and whistleblower disclosures, and enforced the Whistleblower Protection Act.

Eric Bachman has substantial experience litigating precedent-setting employment cases. His wins include a $100 million settlement in a disparate impact Title VII class action and a $16 million class action settlement against a major grocery chain. Having served as Special Litigation Counsel in the Civil Rights Division of the Department of Justice and as lead or co-counsel in numerous jury trials, Bachman is ready to go the distance to obtain the relief that you deserve.

Bachman and Zuckerman served on the Department of Labor's Whistleblower Protection Advisory Committee, which makes recommendations to the Secretary of Labor to improve OSHA's administration of federal whistleblower protections.

Jason Zuckerman was recognized by Washingtonian magazine as a "Top Whistleblower Lawyer" in 2017, 2015, 2009, and 2007, selected by his peers to be included in The Best Lawyers in America® in the category of employment law (2011-2017), and selected by his peers to be listed in SuperLawyers(2012 and 2015-2017) in the category of labor and employment law. Zuckerman is rated 10 out of 10 by Avvo, based largely on client reviews, and rated AV Preeminent® by Martindale-Hubbell based on peer reviews.

The firm has published extensively on whistleblower rights and protections, and regularly speaks nationwide at seminars and continuing legal education conferences. We blog about new developments in whistleblower law at the Whistleblower Protection Blog.

Client Reviews from Executives and Senior Professionals in SOX Whistleblower Retaliation Matters

"Jason is the consummate professional when it comes to SOX retaliation claims. He is, without question, one of the most deeply knowledgeable, technical, and astute attorneys in this very specialized body of law. During one of the most difficult times in my professional career, Jason not only provided exceptional legal guidance, but equally as important, he provided emotional support that was vital to my family and me. Jason ran circles around the "major national law firm" team that was assigned to defend my employer. In fact, Jason made them look silly at times. Jason always advocated my best interests, not his own. Jason is not only an exceptional attorney who helped my family to achieve a favorable outcome, but he is a friend. I've worked with major law firms throughout my career and when it comes to SOX and employment law matters, there is not a finer, more talented attorney than Jason Zuckerman."

"Jason is everything you could possibly ask for an an attorney: highly intelligent, thoughtful, and extraordinarily knowledgeable in his specialty of the law. In a very short period of time Jason was able to assimilate a laundry list of details and offer a compelling strategy on how to effectively proceed. Moreover, he is extremely responsive."

"Jason did an exceptional job in quickly understanding the intricacies of my case, grasping not only his field of expertise of employment law, but also the violations of law and SEC Regulations that were central to my dispute. The overall strategy he utilized insured that opposing counsel was challenged and made clear that this case would simply not proceed based on a timetable convenient to them. Jason is thorough, accurate and seemingly working at all hours based on phone calls and correspondence. Fortunately Jason has a very down to earth personality, understands issues readily and can convey in understandable language current "legal" circumstances and probable outcomes. I would easily and thoroughly recommend Jason for issues related to a Sarbanes-Oxley or employment related dispute."

"I selected Jason to handle my case after consulting with three other lawyers because of his extensive SOX experience and negotiation skills. My decision paid off as he easily surpassed all of my expectations. He quickly analyzed the merits of my case and aggressively engaged my former employer to reach a favorable settlement, avoiding years of potential litigation. He was responsive, professional, ethical and a great advocate on my behalf. I truly believe that I could not have found a better lawyer to represent my interests. He would be the first person I would recommend if a colleague or friend were to ever need similar services. Put simply, Jason is a top notch lawyer who works tirelessly to achieve a positive outcome for his clients. It's easy to see why he is regarded as an expert in the field."

"Jason Zuckerman is the most focused, thoughtful and aggressive attorneys I have ever known, let alone had the pleasure to have on my side in a highly complex legal case. He brought well-honed legal insights and a rapid pace to our legal preparations. He forcefully brought those preparations to the opposing side, which gave them little choice but to engage with us until a positive settlement was reached. In addition, we found Jason to be extremely responsive at every step, even if it required working past midnight. His character is beyond reproach and his dedication through the entire process was unwavering. If I ever need someone in my legal court again, I won't hesitate for even a second, before I seek Jason's support."

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Are SOX whistleblowers required to show that their disclosures relate "definitively and specifically" to a federal securities law? - Zuckerman Law

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To be protected under SOX, an employee's report "need not 'definitively and specifically' relate to one of the listed categories of fraud or securities violations in § 1514A."[i] Whistleblowers are protected if they show that they reasonably believed that the conduct they complained of violated one of the enumerated violations in Section 806.

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Is an employee’s participation in an investigation of corporate fraud protected under the Sarbanes-Oxley Act?

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Is an employee’s participation in an investigation of corporate fraud protected under the Sarbanes-Oxley Act?

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Yes. The whistleblower protection provision of the Sarbanes-Oxley Act protects the following activity: "to file, cause to be filed, testify, participate in, or otherwise assist in a proceeding filed or about to be filed (with any knowledge of the employer) relating to an alleged violation[.]"

To learn more about Sarbanes-Oxley whistleblower protections, click here, and call us at 202-262-8959 to schedule a preliminary consultation.

The SOX whistleblower lawyers at Zuckerman Law have represented CEOs, CFOs, in-house counsel, partners at audit firms and other senior professionals in high-stakes whistleblower matters. Click here to read reviews and testimonials from former clients. Drawing on our substantial experience representing corporate whistleblowers, we have published a free guide to SOX titled Sarbanes-Oxley Whistleblower Protection: Robust Protection for Corporate Whistleblowers:

Sarbanes-Oxley Whistleblower Attorneys

We have assembled a team of leading whistleblower lawyers to provide top-notch representation to Sarbanes-Oxley (SOX) whistleblowers. Recently Washingtonian magazine named two of our attorneys top whistleblower lawyers. U.S. News and Best Lawyers® have named Zuckerman Law a Tier 1 Law Firm in the Washington D.C. metropolitan area.

The whistleblower lawyers at Zuckerman Law have substantial experience litigating Sarbanes Oxley whistleblower retaliation claims and have achieved substantial recoveries for officers, executives, accountants, auditors, and other senior professionals. To schedule a free preliminary consultation, click here or call us at 202-262-8959.

Matt Stock is a Certified Public Accountant, Certified Fraud Examiner and former KPMG external auditor. As an auditor, Mr. Stock developed an expertise in financial statement analysis, internal controls testing and fraud recognition, and he uses his auditing experience to help whistleblowers investigate and disclose complex financial frauds to the government and obtain damages for retaliation. He is lead author of SEC Whistleblower Program: Tips from SEC Whistleblower Attorneys to Maximize an SEC Whistleblower Award.

Both Bachman and Zuckerman served in senior positions at the Office of Special Counsel, where they oversaw investigations of whistleblower retaliation claims and whistleblower disclosures, and enforced the Whistleblower Protection Act.

Eric Bachman has substantial experience litigating precedent-setting employment cases. His wins include a $100 million settlement in a disparate impact Title VII class action and a $16 million class action settlement against a major grocery chain. Having served as Special Litigation Counsel in the Civil Rights Division of the Department of Justice and as lead or co-counsel in numerous jury trials, Bachman is ready to go the distance to obtain the relief that you deserve.

Bachman and Zuckerman served on the Department of Labor's Whistleblower Protection Advisory Committee, which makes recommendations to the Secretary of Labor to improve OSHA's administration of federal whistleblower protections.

Jason Zuckerman was recognized by Washingtonian magazine as a "Top Whistleblower Lawyer" in 2017, 2015, 2009, and 2007, selected by his peers to be included in The Best Lawyers in America® in the category of employment law (2011-2017), and selected by his peers to be listed in SuperLawyers(2012 and 2015-2017) in the category of labor and employment law. Zuckerman is rated 10 out of 10 by Avvo, based largely on client reviews, and rated AV Preeminent® by Martindale-Hubbell based on peer reviews.

The firm has published extensively on whistleblower rights and protections, and regularly speaks nationwide at seminars and continuing legal education conferences. We blog about new developments in whistleblower law at the Whistleblower Protection Blog.

# data[].attributes.attachment_link.title
Is an employee's participation in an investigation of corporate fraud protected under the Sarbanes-Oxley Act? - Zuckerman Law

# data[].attributes.attachment_link.description
Yes. The whistleblower protection provision of the Sarbanes-Oxley Act protects the following activity: "to file, cause to be filed, testify, participate in, or otherwise assist in a proceeding filed or about to be filed (with any knowledge of the employer) relating to an alleged violation[.]" To learn more about Sarbanes-Oxley whistleblower protections, click here, and call us at 202-262-8959 to schedule a preliminary consultation.

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What are some types of proof to show that a disclosure is objectively reasonable?

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What are some types of proof to show that a disclosure is objectively reasonable?

# data[].attributes.attachment_link.readable_text
Some of the options to prove that a disclosure was objectively reasonable include 1) showing that the SEC took enforcement action to penalize similar conduct; 2) offering testimony from co-workers to prove that other employees shared similar concerns about the unlawful conduct; and 3) offering expert witness testimony.

A 2016 unpublished Fourth Circuit decision in Deltek, Inc. v. Dep't of Labor underscores the importance of coworker testimony in proving the objective reasonableness of a disclosure.[i] In this case, soon after starting a new job in the IT department of Deltek Inc., Ms. Gunther noticed a lack of clear procedure and documentation for Deltek's billing disputes with Verizon Business. Ms. Gunther suspected that Deltek employees were subjecting Verizon to unfounded billing disputes in order to conceal a shortfall in Deltek's telecommunications budget.

Ms. Gunther's coworker, who was responsible for managing the billing relationship between Deltek and Verizon, agreed with her concerns, after which Ms. Gunther then reported to her immediate supervisor. Soon thereafter, Ms. Gunther began to experience hostility at work. She then escalated her concerns of ongoing fraud in a letter to Deltek's general counsel, which she copied to the SEC. Deltek's general counsel met with Ms. Gunther and asked her to gather information about her concerns. The general counsel then investigated Ms. Gunther's report and found that no improper activity had occurred. Despite this, Ms. Gunther witnessed her coworkers shredding documents.

Eventually, Ms. Gunther was fired for being "confrontational and disruptive." Deltek argued that Ms. Gunther's belief that Deltek was violating securities laws was not objectively reasonable because she lacked the education and experience necessary to recognize securities fraud; she, in fact, did not have a college degree. The Fourth Circuit rejected this argument, stating that a determination of the reasonableness of Ms. Gunther's belief warranted consideration of the "factual circumstances," including information that Ms. Gunther learned from coworkers. The court agreed with the administrative law judge's (ALJ's) determination that "in forming her belief Gunther reasonably relied on her close dealings with [her coworker], who did have extensive experience in Verizon invoicing . . . [and] who was himself a 'credible, convincing witness at the hearing.'" Therefore, the Fourth Circuit held Ms. Gunther's belief that Deltek was violating securities laws as reasonable.

[i] See Deltek, Inc. v. Dep't of Labor, Admin. Review Bd., No. 14-2415, 2016 WL 2946570 (4th Cir. May 20, 2016).

SOX Whistleblower Protection Law

We represent corporate whistleblowers nationwide in high-stakes whistleblower retaliation cases and have obtained substantial recoveries for CEOs, CFOs, auditors, accountants, risk managers, CISOs, and other executives and senior professionals. We have recovered more than $15 million for corporate whistleblowers and have obtained settlements in excess of one million dollars in at least five SOX matters. Click here to read reviews from senior executives and professionals that we represented in whistleblower retaliation matters.

To learn more about the Sarbanes-Oxley corporate whistleblower protection law, download our free guide Sarbanes-Oxley Whistleblower Protection: Robust Protection for Corporate Whistleblowers.

SEC Whistleblower Rewards

We are also one of the leading law firms representing whistleblowers worldwide before the SEC, and indeed our attorneys represented whistleblowers at the SEC before the enactment of the Dodd-Frank Act. We helped shape the SEC rules implementing the SEC Whistleblower Program, and have represented whistleblowers in disclosing a wide range of violations of federal securities laws, including:

See our recent article in Forbes: One Billion Reasons Why The SEC Whistleblower-Reward Program Is Effective. If you have information you would like to report to the SEC, contact an experienced SEC whistleblower attorney at Zuckerman Law for a free, confidential consultation by calling 202-262-8959.

To learn more about the SEC Whistleblower Program, download our free guide SEC Whistleblower Program: Tips from SEC Whistleblower Attorneys to Maximize an SEC Whistleblower Award.
5 Tips for SEC Whistleblowers and Lessons Learned from SEC Whistleblower Awards
Qualifying for an SEC Whistleblower Award: Tips for SEC Whistleblowers

SEC Whistleblower Program and SEC Whistleblower Awards

Why Hire Leading Sarbanes-Oxley Whistleblower Law Firm Zuckerman Law

Our team includes a Certified Public Accountant, Certified Fraud Examiner and former KPMG external auditor. Prior to becoming a lawyer, Matt Stock developed an expertise in financial statement analysis, internal controls testing and fraud recognition. He uses his auditing experience to help IRS, CFTC and SEC whistleblowers investigate and disclose complex financial frauds to the government.

Both Eric Bachman and Jason Zuckerman were appointed by the Secretary of Labor to serve on the Department of Labor's Whistleblower Protection Advisory Committee, which makes recommendations to improve OSHA's administration of federal whistleblower protections.

Bachman and Zuckerman also served in senior positions at the U.S. Office of Special Counsel, the federal agency charged with protecting whistleblowers in the federal government. At OSC, they oversaw investigations of whistleblower claims and enforced the Whistleblower Protection Act.

Jason Zuckerman was recognized by Washingtonian magazine as a "Top Whistleblower Lawyer" in 2015, 2009, and 2007 selected by his peers to be included in The Best Lawyers in America® in the category of employment law (2011-2017), and selected by his peers to be listed in SuperLawyers (2012 and 2015-2017) in the category of labor and employment law. He is rated 10 out of 10 by Avvo, based largely on client reviews, and rated AV Preeminent® by Martindale-Hubbell based on peer reviews.

Eric Bachman has substantial experience litigating precedent-setting employment cases. His wins include a $100 million settlement in a disparate impact Title VII class action and a $16 million class action settlement against a major grocery chain. Having served as Special Litigation Counsel in the Civil Rights Division of the Department of Justice and as lead or co-counsel in numerous jury trials, Bachman is trial-tested and ready to fight for you to obtain the relief that you deserve.

The firm has published extensively on whistleblower rights and protections, and regularly speaks nationwide at seminars and continuing legal education conferences. We blog about new developments in whistleblower law at the Whistleblower Protection Blog.

Client Reviews from Executives and Senior Professionals in SOX Whistleblower Retaliation Matters

"Jason is the consummate professional when it comes to SOX retaliation claims. He is, without question, one of the most deeply knowledgeable, technical, and astute attorneys in this very specialized body of law. During one of the most difficult times in my professional career, Jason not only provided exceptional legal guidance, but equally as important, he provided emotional support that was vital to my family and me. Jason ran circles around the "major national law firm" team that was assigned to defend my employer. In fact, Jason made them look silly at times. Jason always advocated my best interests, not his own. Jason is not only an exceptional attorney who helped my family to achieve a favorable outcome, but he is a friend. I've worked with major law firms throughout my career and when it comes to SOX and employment law matters, there is not a finer, more talented attorney than Jason Zuckerman."

"Jason is everything you could possibly ask for an an attorney: highly intelligent, thoughtful, and extraordinarily knowledgeable in his specialty of the law. In a very short period of time Jason was able to assimilate a laundry list of details and offer a compelling strategy on how to effectively proceed. Moreover, he is extremely responsive."

"Jason did an exceptional job in quickly understanding the intricacies of my case, grasping not only his field of expertise of employment law, but also the violations of law and SEC Regulations that were central to my dispute. The overall strategy he utilized insured that opposing counsel was challenged and made clear that this case would simply not proceed based on a timetable convenient to them. Jason is thorough, accurate and seemingly working at all hours based on phone calls and correspondence. Fortunately Jason has a very down to earth personality, understands issues readily and can convey in understandable language current "legal" circumstances and probable outcomes. I would easily and thoroughly recommend Jason for issues related to a Sarbanes-Oxley or employment related dispute."

"I selected Jason to handle my case after consulting with three other lawyers because of his extensive SOX experience and negotiation skills. My decision paid off as he easily surpassed all of my expectations. He quickly analyzed the merits of my case and aggressively engaged my former employer to reach a favorable settlement, avoiding years of potential litigation. He was responsive, professional, ethical and a great advocate on my behalf. I truly believe that I could not have found a better lawyer to represent my interests. He would be the first person I would recommend if a colleague or friend were to ever need similar services. Put simply, Jason is a top notch lawyer who works tirelessly to achieve a positive outcome for his clients. It's easy to see why he is regarded as an expert in the field."

"Jason Zuckerman is the most focused, thoughtful and aggressive attorneys I have ever known, let alone had the pleasure to have on my side in a highly complex legal case. He brought well-honed legal insights and a rapid pace to our legal preparations. He forcefully brought those preparations to the opposing side, which gave them little choice but to engage with us until a positive settlement was reached. In addition, we found Jason to be extremely responsive at every step, even if it required working past midnight. His character is beyond reproach and his dedication through the entire process was unwavering. If I ever need someone in my legal court again, I won't hesitate for even a second, before I seek Jason's support."

# data[].attributes.attachment_link.title
What are some types of proof to show that a disclosure is objectively reasonable? - Zuckerman Law

# data[].attributes.attachment_link.description
Some of the options to prove that a disclosure was objectively reasonable include 1) showing that the SEC took enforcement action to penalize similar conduct; 2) offering testimony from co-workers to prove that other employees shared similar concerns about the unlawful conduct; and 3) offering expert witness testimony.

# data[].attributes.headline
Is a whistleblower’s motive for engaging in protected activity relevant in a whistleblower protection case?

# data[].attributes.subject
Is a whistleblower’s motive for engaging in protected activity relevant in a whistleblower protection case?

# data[].attributes.attachment_link.readable_text
A whistleblower's motive for engaging in protected conduct is irrelevant, per longstanding ARB precedent.[i] The whistleblower need only have a reasonable belief that the conduct violates federal securities laws or the other categories of protected conduct in Section 806 of SOX.

[i] See Henderson v. Wheeling & Lake Erie Ry., ARB No. 11-013, ALJ No. 2010-FRS-012, slip op. at 14 (ARB Oct. 26, 2012); Malmanger v. Air Evac EMS, Inc., ARB No. 08-071, slip op. at 10-11, ALJ No. 2007-AIR-8 (ARB July 2, 2009).

Sarbanes-Oxley (SOX) Whistleblower Protection Law

We represent corporate whistleblowers nationwide in high-stakes whistleblower retaliation cases and have obtained substantial recoveries for CEOs, CFOs, auditors, accountants, risk managers, CISOs, and other executives and senior professionals. We have recovered more than $15 million for corporate whistleblowers and have obtained settlements in excess of one million dollars in at least five SOX matters. Click here to read reviews from senior executives and professionals that we represented in whistleblower retaliation matters.

To learn more about the Sarbanes-Oxley corporate whistleblower protection law, download our free guide Sarbanes-Oxley Whistleblower Protection: Robust Protection for Corporate Whistleblowers.

Top-Rated SOX Whistleblower Lawyers

We have assembled a team of leading whistleblower lawyers to provide top-notch representation to Sarbanes-Oxley (SOX) whistleblowers. Recently Washingtonian magazine named two of our attorneys top whistleblower lawyers. U.S. News and Best Lawyers® have named Zuckerman Law a Tier 1 Law Firm in the Washington D.C. metropolitan area.

The whistleblower lawyers at Zuckerman Law have substantial experience litigating Sarbanes Oxley whistleblower retaliation claims and have achieved substantial recoveries for officers, executives, accountants, auditors, and other senior professionals.

To schedule a free preliminary consultation, click here or call us at 202-262-8959.

Matt Stock is a Certified Public Accountant, Certified Fraud Examiner and former KPMG external auditor. As an auditor, Mr. Stock developed an expertise in financial statement analysis, internal controls testing and fraud recognition, and he uses his auditing experience to help whistleblowers investigate and disclose complex financial frauds to the government and obtain damages for retaliation. He is lead author of SEC Whistleblower Program: Tips from SEC Whistleblower Attorneys to Maximize an SEC Whistleblower Award.

Both Bachman and Zuckerman served in senior positions at the Office of Special Counsel, where they oversaw investigations of whistleblower retaliation claims and whistleblower disclosures, and enforced the Whistleblower Protection Act.

Eric Bachman has substantial experience litigating precedent-setting employment cases. His wins include a $100 million settlement in a disparate impact Title VII class action and a $16 million class action settlement against a major grocery chain. Having served as Special Litigation Counsel in the Civil Rights Division of the Department of Justice and as lead or co-counsel in numerous jury trials, Bachman is ready to go the distance to obtain the relief that you deserve.

Bachman and Zuckerman served on the Department of Labor's Whistleblower Protection Advisory Committee, which makes recommendations to the Secretary of Labor to improve OSHA's administration of federal whistleblower protections.

Jason Zuckerman was recognized by Washingtonian magazine as a "Top Whistleblower Lawyer" in 2017, 2015, 2009, and 2007, selected by his peers to be included in The Best Lawyers in America® in the category of employment law (2011-2017), and selected by his peers to be listed in SuperLawyers(2012 and 2015-2017) in the category of labor and employment law. Zuckerman is rated 10 out of 10 by Avvo, based largely on client reviews, and rated AV Preeminent® by Martindale-Hubbell based on peer reviews.

The firm has published extensively on whistleblower rights and protections, and regularly speaks nationwide at seminars and continuing legal education conferences. We blog about new developments in whistleblower law at the Whistleblower Protection Blog.

SEC Whistleblower Bounties

We are also one of the leading law firms representing whistleblowers worldwide before the SEC, and indeed our attorneys represented whistleblowers at the SEC before the enactment of the Dodd-Frank Act. We helped shape the SEC rules implementing the SEC Whistleblower Program, and have represented whistleblowers in disclosing a wide range of violations of federal securities laws, including:

See our recent article in Forbes: One Billion Reasons Why The SEC Whistleblower-Reward Program Is Effective. If you have information you would like to report to the SEC, contact an experienced SEC whistleblower attorney at Zuckerman Law for a free, confidential consultation by calling 202-262-8959.

To learn more about the SEC Whistleblower Program, download our free guide SEC Whistleblower Program: Tips from SEC Whistleblower Attorneys to Maximize an SEC Whistleblower Award.
5 Tips for SEC Whistleblowers and Lessons Learned from SEC Whistleblower Awards
Qualifying for an SEC Whistleblower Award: Tips for SEC Whistleblowers

SEC Whistleblower Program and SEC Whistleblower Awards

Zuckerman Law Client Reviews from SOX Whistleblower Retaliation Matters

"Jason is the consummate professional when it comes to SOX retaliation claims. He is, without question, one of the most deeply knowledgeable, technical, and astute attorneys in this very specialized body of law. During one of the most difficult times in my professional career, Jason not only provided exceptional legal guidance, but equally as important, he provided emotional support that was vital to my family and me. Jason ran circles around the "major national law firm" team that was assigned to defend my employer. In fact, Jason made them look silly at times. Jason always advocated my best interests, not his own. Jason is not only an exceptional attorney who helped my family to achieve a favorable outcome, but he is a friend. I've worked with major law firms throughout my career and when it comes to SOX and employment law matters, there is not a finer, more talented attorney than Jason Zuckerman."

"Jason is everything you could possibly ask for an an attorney: highly intelligent, thoughtful, and extraordinarily knowledgeable in his specialty of the law. In a very short period of time Jason was able to assimilate a laundry list of details and offer a compelling strategy on how to effectively proceed. Moreover, he is extremely responsive."

"Jason did an exceptional job in quickly understanding the intricacies of my case, grasping not only his field of expertise of employment law, but also the violations of law and SEC Regulations that were central to my dispute. The overall strategy he utilized insured that opposing counsel was challenged and made clear that this case would simply not proceed based on a timetable convenient to them. Jason is thorough, accurate and seemingly working at all hours based on phone calls and correspondence. Fortunately Jason has a very down to earth personality, understands issues readily and can convey in understandable language current "legal" circumstances and probable outcomes. I would easily and thoroughly recommend Jason for issues related to a Sarbanes-Oxley or employment related dispute."

"I selected Jason to handle my case after consulting with three other lawyers because of his extensive SOX experience and negotiation skills. My decision paid off as he easily surpassed all of my expectations. He quickly analyzed the merits of my case and aggressively engaged my former employer to reach a favorable settlement, avoiding years of potential litigation. He was responsive, professional, ethical and a great advocate on my behalf. I truly believe that I could not have found a better lawyer to represent my interests. He would be the first person I would recommend if a colleague or friend were to ever need similar services. Put simply, Jason is a top notch lawyer who works tirelessly to achieve a positive outcome for his clients. It's easy to see why he is regarded as an expert in the field."

"Jason Zuckerman is the most focused, thoughtful and aggressive attorneys I have ever known, let alone had the pleasure to have on my side in a highly complex legal case. He brought well-honed legal insights and a rapid pace to our legal preparations. He forcefully brought those preparations to the opposing side, which gave them little choice but to engage with us until a positive settlement was reached. In addition, we found Jason to be extremely responsive at every step, even if it required working past midnight. His character is beyond reproach and his dedication through the entire process was unwavering. If I ever need someone in my legal court again, I won't hesitate for even a second, before I seek Jason's support."

whistleblower_lawyers_012017_infographic

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Is a whistleblower's motive for engaging in protected activity relevant in a whistleblower protection case? - Zuckerman Law

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A whistleblower's motive for engaging in protected conduct is irrelevant, per longstanding ARB precedent.[i] The whistleblower need only have a reasonable belief that the conduct violates federal securities laws or the other categories of protected conduct in Section 806 of SOX. [i] See Henderson v. Wheeling & Lake Erie Ry., ARB No.

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Does Sarbanes-Oxley protected conduct require a showing of materiality?

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Does Sarbanes-Oxley protected conduct require a showing of materiality?

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The great weight of authority holds that there is no independent materiality element to establish protected whistleblowing under Section 806 of SOX.

For example, in Donaldson v. Severn Sav. Bank, F.S.B.,[i] Vanessa L. Donaldson brought a SOX whistleblower action against her former employer, Severn Savings Bank ("Severn"), claiming she was unlawfully terminated after she reported to her supervisor her suspicions about an inaccurate bank report. Specifically, Ms. Donaldson alleged that she informed her supervisor about a scheme in which the commercial/retail manager for Ms. Donaldson's branch falsified the retail production report for the third quarter of 2013, in order to collect unearned bonus pay.

Severn argued that Ms. Donaldson failed to allege she engaged in protected activity because she failed "to allege any facts whatsoever that would indicate any material misrepresentations (or omissions) were reported to Severn's shareholders," and so she lacked an objectively reasonable belief that she was disclosing shareholder fraud. The court rejected Severn's narrow construction of SOX:

[T]he federal criminal fraud statutes . . . prohibit the scheme to defraud, not a completed fraud. . . .Materiality of falsehood . . . was a common-law element of actionable fraud at the time these fraud statutes were enacted and is an incorporated element of the mail fraud, wire fraud, and bank fraud statutes. . . . But § 1514A carries no independent materiality element. Consequently, Donaldson's objective belief need not be about a material matter, as Severn has argued. Rather, her objective belief must be based on facts permitting an inference that [the manager's] allegedly false representation was material to Severn's course of conduct.[ii]

The court found that Ms. Donaldson met this standard because the manager's alleged inflation of the retail production figures was intended to, and likely would, affect the size of a bonus awarded him by Severn. Therefore, the court concluded, "it may be inferred from Donaldson's complaint that she had an objectively reasonable belief that [the manager was] engaged in a scheme to defraud Severn."[iii]

[i] No. JKB-15-901, 2015 WL 7294362, at *3 (D. Md. Nov. 18, 2015).

[ii] Id. at *3 (citations omitted).

SOX Whistleblower Law

We represent corporate whistleblowers nationwide in high-stakes whistleblower retaliation cases and have obtained substantial recoveries for CEOs, CFOs, auditors, accountants, risk managers, CISOs, and other executives and senior professionals. We have recovered more than $15 million for corporate whistleblowers and have obtained settlements in excess of one million dollars in at least five SOX matters. Click here to read reviews from senior executives and professionals that we represented in whistleblower retaliation matters.

To learn more about the Sarbanes-Oxley corporate whistleblower protection law, download our free guide Sarbanes-Oxley Whistleblower Protection: Robust Protection for Corporate Whistleblowers.

SEC Whistleblower Attorneys: Representing Whistleblowers Nationwide

We are also one of the leading law firms representing whistleblowers worldwide before the SEC, and indeed our attorneys represented whistleblowers at the SEC before the enactment of the Dodd-Frank Act. We helped shape the SEC rules implementing the SEC Whistleblower Program, and have represented whistleblowers in disclosing a wide range of violations of federal securities laws, including:

See our recent article in Forbes: One Billion Reasons Why The SEC Whistleblower-Reward Program Is Effective. If you have information you would like to report to the SEC, contact an experienced SEC whistleblower attorney at Zuckerman Law for a free, confidential consultation by calling 202-262-8959.

To learn more about the SEC Whistleblower Program, download our free guide SEC Whistleblower Program: Tips from SEC Whistleblower Attorneys to Maximize an SEC Whistleblower Award.
5 Tips for SEC Whistleblowers and Lessons Learned from SEC Whistleblower Awards
Qualifying for an SEC Whistleblower Award: Tips for SEC Whistleblowers

SEC Whistleblower Program and SEC Whistleblower Awards

Why Hire Leading SOX Whistleblower Law Firm Zuckerman Law

We have assembled a team of leading whistleblower lawyers to provide top-notch representation to Sarbanes-Oxley (SOX) whistleblowers. Recently Washingtonian magazine named two of our attorneys top whistleblower lawyers. U.S. News and Best Lawyers® have named Zuckerman Law a Tier 1 Law Firm in the Washington D.C. metropolitan area.

The whistleblower lawyers at Zuckerman Law have substantial experience litigating Sarbanes Oxley whistleblower retaliation claims and have achieved substantial recoveries for officers, executives, accountants, auditors, and other senior professionals. To schedule a free preliminary consultation, click here or call us at 202-262-8959.

Matt Stock is a Certified Public Accountant, Certified Fraud Examiner and former KPMG external auditor. As an auditor, Mr. Stock developed an expertise in financial statement analysis, internal controls testing and fraud recognition, and he uses his auditing experience to help whistleblowers investigate and disclose complex financial frauds to the government and obtain damages for retaliation. He is lead author of SEC Whistleblower Program: Tips from SEC Whistleblower Attorneys to Maximize an SEC Whistleblower Award.

Both Bachman and Zuckerman served in senior positions at the Office of Special Counsel, where they oversaw investigations of whistleblower retaliation claims and whistleblower disclosures, and enforced the Whistleblower Protection Act.

Eric Bachman has substantial experience litigating precedent-setting employment cases. His wins include a $100 million settlement in a disparate impact Title VII class action and a $16 million class action settlement against a major grocery chain. Having served as Special Litigation Counsel in the Civil Rights Division of the Department of Justice and as lead or co-counsel in numerous jury trials, Bachman is ready to go the distance to obtain the relief that you deserve.

Bachman and Zuckerman served on the Department of Labor's Whistleblower Protection Advisory Committee, which makes recommendations to the Secretary of Labor to improve OSHA's administration of federal whistleblower protections.

Jason Zuckerman was recognized by Washingtonian magazine as a "Top Whistleblower Lawyer" in 2017, 2015, 2009, and 2007, selected by his peers to be included in The Best Lawyers in America® in the category of employment law (2011-2017), and selected by his peers to be listed in SuperLawyers(2012 and 2015-2017) in the category of labor and employment law. Zuckerman is rated 10 out of 10 by Avvo, based largely on client reviews, and rated AV Preeminent® by Martindale-Hubbellbased on peer reviews.

The firm has published extensively on whistleblower rights and protections, and regularly speaks nationwide at seminars and continuing legal education conferences. We blog about new developments in whistleblower law at the Whistleblower Protection Blog.

SOX Whistleblower Law Firm Zuckerman Law Client Testimonials

"Jason is the consummate professional when it comes to SOX retaliation claims. He is, without question, one of the most deeply knowledgeable, technical, and astute attorneys in this very specialized body of law. During one of the most difficult times in my professional career, Jason not only provided exceptional legal guidance, but equally as important, he provided emotional support that was vital to my family and me. Jason ran circles around the "major national law firm" team that was assigned to defend my employer. In fact, Jason made them look silly at times. Jason always advocated my best interests, not his own. Jason is not only an exceptional attorney who helped my family to achieve a favorable outcome, but he is a friend. I've worked with major law firms throughout my career and when it comes to SOX and employment law matters, there is not a finer, more talented attorney than Jason Zuckerman."

"Jason is everything you could possibly ask for an an attorney: highly intelligent, thoughtful, and extraordinarily knowledgeable in his specialty of the law. In a very short period of time Jason was able to assimilate a laundry list of details and offer a compelling strategy on how to effectively proceed. Moreover, he is extremely responsive."

"Jason did an exceptional job in quickly understanding the intricacies of my case, grasping not only his field of expertise of employment law, but also the violations of law and SEC Regulations that were central to my dispute. The overall strategy he utilized insured that opposing counsel was challenged and made clear that this case would simply not proceed based on a timetable convenient to them. Jason is thorough, accurate and seemingly working at all hours based on phone calls and correspondence. Fortunately Jason has a very down to earth personality, understands issues readily and can convey in understandable language current "legal" circumstances and probable outcomes. I would easily and thoroughly recommend Jason for issues related to a Sarbanes-Oxley or employment related dispute."

"I selected Jason to handle my case after consulting with three other lawyers because of his extensive SOX experience and negotiation skills. My decision paid off as he easily surpassed all of my expectations. He quickly analyzed the merits of my case and aggressively engaged my former employer to reach a favorable settlement, avoiding years of potential litigation. He was responsive, professional, ethical and a great advocate on my behalf. I truly believe that I could not have found a better lawyer to represent my interests. He would be the first person I would recommend if a colleague or friend were to ever need similar services. Put simply, Jason is a top notch lawyer who works tirelessly to achieve a positive outcome for his clients. It's easy to see why he is regarded as an expert in the field."

"Jason Zuckerman is the most focused, thoughtful and aggressive attorneys I have ever known, let alone had the pleasure to have on my side in a highly complex legal case. He brought well-honed legal insights and a rapid pace to our legal preparations. He forcefully brought those preparations to the opposing side, which gave them little choice but to engage with us until a positive settlement was reached. In addition, we found Jason to be extremely responsive at every step, even if it required working past midnight. His character is beyond reproach and his dedication through the entire process was unwavering. If I ever need someone in my legal court again, I won't hesitate for even a second, before I seek Jason's support."

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Does Sarbanes-Oxley protected conduct require a showing of materiality? - Zuckerman Law

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The great weight of authority holds that there is no independent materiality element to establish protected whistleblowing under Section 806 of SOX. For example, in Donaldson v. Severn Sav. Bank, F.S.B.,[i] Vanessa L. Donaldson brought a SOX whistleblower action against her former employer, Severn Savings Bank ("Severn"), claiming she was unlawfully terminated after she reported to her supervisor her suspicions about an inaccurate bank report.

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Is a Sarbanes-Oxley whistleblower required to prove fraud?

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Is a Sarbanes-Oxley whistleblower required to prove fraud?

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A SOX complainant need not allege or prove shareholder fraud to receive SOX's protection. SOX was enacted to address "corporate fraud generally," and so a reasonable belief that a violation of "any rule or regulation of the Securities and Exchange Commission" could lead to fraud is protected, even if the violation itself is not fraudulent. For example, SOX protects a disclosure about deficient internal controls over financial reporting, even though there is no allegation of actual fraud.[i]

As the Third Circuit held, SOX is meant to "protect people who have the courage to stand against institutional pressures and say plainly, 'what you are doing here is wrong' . . . in the particular way identified in the statue at issue."[ii] An employee has fulfilled that purpose if they disclose conduct that is within the "ample bounds" of the anti-fraud statutes. Such an employee is therefore protected even if they lacked "access to information sufficient to form an objectively reasonable belief" as to the specific elements of fraud. And they are similarly protected even if their belief is "reasonable but mistaken."

Finally, the plain meaning of Section 806 unambiguously covers more than just disclosures concerning shareholder fraud:

Section 1514A states, in pertinent part, that a publicly traded company may not retaliate against an employee who provides information that 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." 18 U.S.C. § 1514A(a)(1). Section 1514A contains six provisions that enumerate six specific forms of misconduct which, if reported by an employee, protect the whistleblower from employer retaliation: (1) § 1341 (mail fraud); (2) § 1343 (wire fraud); (3) 18 U.S.C. § 1344 (bank fraud); (4) 18 U.S.C. § 1348 (securities fraud); (5) any rule or regulation of the SEC; or (6) any provision of federal law relating to fraud against shareholders. The first four provisions are statutes that, as written by Congress, are not limited to types of fraud related to SOX. By listing certain specific fraud statutes to which § 1514A applies, and then separately, as indicated by the disjunctive "or", extending the reach of the whistleblower protection to violations of any provision of federal law relating to fraud against securities shareholders, § 1514A clearly protects an employee against retaliation based upon the whistleblower's reporting of fraud under any of the enumerated statutes regardless of whether the misconduct relates to "shareholder" fraud.

O'Mahony v. Accenture Ltd and Accenture LLP, 07 Civ. 7916 (S.D.N.Y. Feb. 5, 2008).

[i] Sylvester v. Parexel Int'l LLC, ARB Case No. 07-123, at 19 (ARB May 25, 2011).

Sarbanes-Oxley (SOX) Whistleblower Protection Law

We represent corporate whistleblowers nationwide in high-stakes whistleblower retaliation cases and have obtained substantial recoveries for CEOs, CFOs, auditors, accountants, risk managers, CISOs, and other executives and senior professionals. We have recovered more than $15 million for corporate whistleblowers and have obtained settlements in excess of one million dollars in at least five SOX matters. Click here to read reviews from senior executives and professionals that we represented in whistleblower retaliation matters.

To learn more about the Sarbanes-Oxley corporate whistleblower protection law, download our free guide Sarbanes-Oxley Whistleblower Protection: Robust Protection for Corporate Whistleblowers.

Top-Rated SOX Whistleblower Lawyers

We have assembled a team of leading whistleblower lawyers to provide top-notch representation to Sarbanes-Oxley (SOX) whistleblowers. Recently Washingtonian magazine named two of our attorneys top whistleblower lawyers. U.S. News and Best Lawyers® have named Zuckerman Law a Tier 1 Law Firm in the Washington D.C. metropolitan area.

The whistleblower lawyers at Zuckerman Law have substantial experience litigating Sarbanes Oxley whistleblower retaliation claims and have achieved substantial recoveries for officers, executives, accountants, auditors, and other senior professionals. To schedule a free preliminary consultation, click here or call us at 202-262-8959.

Matt Stock is a Certified Public Accountant, Certified Fraud Examiner and former KPMG external auditor. As an auditor, Mr. Stock developed an expertise in financial statement analysis, internal controls testing and fraud recognition, and he uses his auditing experience to help whistleblowers investigate and disclose complex financial frauds to the government and obtain damages for retaliation. He is lead author of SEC Whistleblower Program: Tips from SEC Whistleblower Attorneys to Maximize an SEC Whistleblower Award.

Both Bachman and Zuckerman served in senior positions at the Office of Special Counsel, where they oversaw investigations of whistleblower retaliation claims and whistleblower disclosures, and enforced the Whistleblower Protection Act.

Eric Bachman has substantial experience litigating precedent-setting employment cases. His wins include a $100 million settlement in a disparate impact Title VII class action and a $16 million class action settlement against a major grocery chain. Having served as Special Litigation Counsel in the Civil Rights Division of the Department of Justice and as lead or co-counsel in numerous jury trials, Bachman is ready to go the distance to obtain the relief that you deserve.

Bachman and Zuckerman served on the Department of Labor's Whistleblower Protection Advisory Committee, which makes recommendations to the Secretary of Labor to improve OSHA's administration of federal whistleblower protections.

Jason Zuckerman was recognized by Washingtonian magazine as a "Top Whistleblower Lawyer" in 2017, 2015, 2009, and 2007, selected by his peers to be included in The Best Lawyers in America® in the category of employment law (2011-2017), and selected by his peers to be listed in SuperLawyers(2012 and 2015-2017) in the category of labor and employment law. Zuckerman is rated 10 out of 10 by Avvo, based largely on client reviews, and rated AV Preeminent® by Martindale-Hubbell based on peer reviews.

The firm has published extensively on whistleblower rights and protections, and regularly speaks nationwide at seminars and continuing legal education conferences. We blog about new developments in whistleblower law at the Whistleblower Protection Blog.

5 Tips for SEC Whistleblowers and Lessons Learned from SEC Whistleblower Awards
Qualifying for an SEC Whistleblower Award: Tips for SEC Whistleblowers

SEC Whistleblower Program and SEC Whistleblower Awards

Client Reviews from Executives and Senior Professionals in SOX Whistleblower Retaliation Matters

"Jason is the consummate professional when it comes to SOX retaliation claims. He is, without question, one of the most deeply knowledgeable, technical, and astute attorneys in this very specialized body of law. During one of the most difficult times in my professional career, Jason not only provided exceptional legal guidance, but equally as important, he provided emotional support that was vital to my family and me. Jason ran circles around the "major national law firm" team that was assigned to defend my employer. In fact, Jason made them look silly at times. Jason always advocated my best interests, not his own. Jason is not only an exceptional attorney who helped my family to achieve a favorable outcome, but he is a friend. I've worked with major law firms throughout my career and when it comes to SOX and employment law matters, there is not a finer, more talented attorney than Jason Zuckerman."

"Jason is everything you could possibly ask for an an attorney: highly intelligent, thoughtful, and extraordinarily knowledgeable in his specialty of the law. In a very short period of time Jason was able to assimilate a laundry list of details and offer a compelling strategy on how to effectively proceed. Moreover, he is extremely responsive."

"Jason did an exceptional job in quickly understanding the intricacies of my case, grasping not only his field of expertise of employment law, but also the violations of law and SEC Regulations that were central to my dispute. The overall strategy he utilized insured that opposing counsel was challenged and made clear that this case would simply not proceed based on a timetable convenient to them. Jason is thorough, accurate and seemingly working at all hours based on phone calls and correspondence. Fortunately Jason has a very down to earth personality, understands issues readily and can convey in understandable language current "legal" circumstances and probable outcomes. I would easily and thoroughly recommend Jason for issues related to a Sarbanes-Oxley or employment related dispute."

"I selected Jason to handle my case after consulting with three other lawyers because of his extensive SOX experience and negotiation skills. My decision paid off as he easily surpassed all of my expectations. He quickly analyzed the merits of my case and aggressively engaged my former employer to reach a favorable settlement, avoiding years of potential litigation. He was responsive, professional, ethical and a great advocate on my behalf. I truly believe that I could not have found a better lawyer to represent my interests. He would be the first person I would recommend if a colleague or friend were to ever need similar services. Put simply, Jason is a top notch lawyer who works tirelessly to achieve a positive outcome for his clients. It's easy to see why he is regarded as an expert in the field."

"Jason Zuckerman is the most focused, thoughtful and aggressive attorneys I have ever known, let alone had the pleasure to have on my side in a highly complex legal case. He brought well-honed legal insights and a rapid pace to our legal preparations. He forcefully brought those preparations to the opposing side, which gave them little choice but to engage with us until a positive settlement was reached. In addition, we found Jason to be extremely responsive at every step, even if it required working past midnight. His character is beyond reproach and his dedication through the entire process was unwavering. If I ever need someone in my legal court again, I won't hesitate for even a second, before I seek Jason's support."

whistleblower_lawyers_012017_infographic

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Is a Sarbanes-Oxley whistleblower required to prove fraud? - Zuckerman Law

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A SOX complainant need not allege or prove shareholder fraud to receive SOX's protection. SOX was enacted to address "corporate fraud generally," and so a reasonable belief that a violation of "any rule or regulation of the Securities and Exchange Commission" could lead to fraud is protected, even if the violation itself is not fraudulent.

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Are disclosures made in the course of performing one’s job duties protected?

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Are disclosures made in the course of performing one’s job duties protected?

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A consensus is emerging that the duty speech doctrine does not apply to SOX whistleblower claims.[i] The duty speech defense asserts that disclosures made while performing routine job duties are outside the ambit of protected conduct. The defense became increasingly popular in the wake of the Supreme Court's 2006 decision in Garcetti v. Ceballos, which held that government employees cannot not bring First Amendment whistleblower retaliation claims based on work-related speech if the speech is part of their job duties.[ii]

Most Department of Labor (DOL) ALJs addressing this issue have declined to apply Garcetti to SOX claims. For example, Judge Lee Romero Jr. concluded that "one's job duties may broadly encompass reporting of illegal conduct, for which retaliation results. Therefore, restricting protected activity to place one's job duties beyond the reach of the Act would be contrary to congressional intent."[iii]

Recently, a New York district court held in Yang v. Navigators Grp., Inc. that the duty speech defense is inapplicable to SOX claims.[iv] Jennifer Yang worked as the chief risk officer for Navigators Group ("Navigators"), an insurance company. Ms. Yang alleged that Navigators terminated her employment for disclosing to her supervisor deficient risk management and control practices. Navigators moved to dismiss Ms. Yang's SOX claim in part on the basis that Yang's disclosures about risk issues were "part and parcel of her job."[v] The court rejected this duty speech argument, relying on a 2012 district court decision holding that "whether plaintiff's activity was required by job description is irrelevant."[vi]

[i] See, e.g., Robinson v. Morgan Stanley, ARB Case No. 07-070, 2010 WL 348303, at *8 (Jan. 10, 2010) ("[Section 1514A] does not indicate that an employee's report or complaint about a potential violation must involve actions outside the complainant's assigned duties.").

[ii] See Garcetti v. Ceballos, 547 U.S. 410, 422 (2006).

[iii] Deremer v. Gulfmark Offshore, Inc., ALJ Case No. 2006-SOX-2, 2007 WL 6888110, at *42 (June 29, 2007).

[iv] See Yang v. Navigators Grp., Inc., 18 F. Supp. 3d 519, 530 (S.D.N.Y. May 8, 2014).

[vi] See id. at 531 (citing Barker v. UBS AG, 888 F. Supp. 2d 291, 297 (D. Conn. 2012)).

Recent cases also suggest that the " duty speech" doctrine does not apply to False Claims Act protected conduct.

SOX Whistleblower Protection Lawyers

We have assembled a team of leading whistleblower lawyers to provide top-notch representation to Sarbanes-Oxley (SOX) whistleblowers. Recently Washingtonian magazine named two of our attorneys top whistleblower lawyers. U.S. News and Best Lawyers® have named Zuckerman Law a Tier 1 Law Firm in the Washington D.C. metropolitan area.

The whistleblower lawyers at Zuckerman Law have substantial experience litigating Sarbanes Oxley whistleblower retaliation claims and have achieved substantial recoveries for officers, executives, accountants, auditors, and other senior professionals. To schedule a free preliminary consultation, click here or call us at 202-262-8959.

Matt Stock is a Certified Public Accountant, Certified Fraud Examiner and former KPMG external auditor. As an auditor, Mr. Stock developed an expertise in financial statement analysis, internal controls testing and fraud recognition, and he uses his auditing experience to help whistleblowers investigate and disclose complex financial frauds to the government and obtain damages for retaliation. He is lead author of SEC Whistleblower Program: Tips from SEC Whistleblower Attorneys to Maximize an SEC Whistleblower Award.

Both Bachman and Zuckerman served in senior positions at the Office of Special Counsel, where they oversaw investigations of whistleblower retaliation claims and whistleblower disclosures, and enforced the Whistleblower Protection Act.

Eric Bachman has substantial experience litigating precedent-setting employment cases. His wins include a $100 million settlement in a disparate impact Title VII class action and a $16 million class action settlement against a major grocery chain. Having served as Special Litigation Counsel in the Civil Rights Division of the Department of Justice and as lead or co-counsel in numerous jury trials, Bachman is ready to go the distance to obtain the relief that you deserve.

Bachman and Zuckerman served on the Department of Labor's Whistleblower Protection Advisory Committee, which makes recommendations to the Secretary of Labor to improve OSHA's administration of federal whistleblower protections.

Jason Zuckerman was recognized by Washingtonian magazine as a "Top Whistleblower Lawyer" in 2017, 2015, 2009, and 2007, selected by his peers to be included in The Best Lawyers in America® in the category of employment law (2011-2017), and selected by his peers to be listed in SuperLawyers(2012 and 2015-2017) in the category of labor and employment law. Zuckerman is rated 10 out of 10 by Avvo, based largely on client reviews, and rated AV Preeminent® by Martindale-Hubbellbased on peer reviews.

The firm has published extensively on whistleblower rights and protections, and regularly speaks nationwide at seminars and continuing legal education conferences. We blog about new developments in whistleblower law at the Whistleblower Protection Blog.

SEC Whistleblower Rewards

We are also one of the leading law firms representing whistleblowers worldwide before the SEC, and indeed our attorneys represented whistleblowers at the SEC before the enactment of the Dodd-Frank Act. We helped shape the SEC rules implementing the SEC Whistleblower Program, and have represented whistleblowers in disclosing a wide range of violations of federal securities laws, including:

See our recent article in Forbes: One Billion Reasons Why The SEC Whistleblower-Reward Program Is Effective. If you have information you would like to report to the SEC, contact an experienced SEC whistleblower attorney at Zuckerman Law for a free, confidential consultation by calling 202-262-8959.

To learn more about the SEC Whistleblower Program, download our free guide SEC Whistleblower Program: Tips from SEC Whistleblower Attorneys to Maximize an SEC Whistleblower Award.
5 Tips for SEC Whistleblowers and Lessons Learned from SEC Whistleblower Awards
Qualifying for an SEC Whistleblower Award: Tips for SEC Whistleblowers

SEC Whistleblower Program and SEC Whistleblower Awards

Client Reviews from Executives and Senior Professionals in SOX Whistleblower Retaliation Matters

"Jason is the consummate professional when it comes to SOX retaliation claims. He is, without question, one of the most deeply knowledgeable, technical, and astute attorneys in this very specialized body of law. During one of the most difficult times in my professional career, Jason not only provided exceptional legal guidance, but equally as important, he provided emotional support that was vital to my family and me. Jason ran circles around the "major national law firm" team that was assigned to defend my employer. In fact, Jason made them look silly at times. Jason always advocated my best interests, not his own. Jason is not only an exceptional attorney who helped my family to achieve a favorable outcome, but he is a friend. I've worked with major law firms throughout my career and when it comes to SOX and employment law matters, there is not a finer, more talented attorney than Jason Zuckerman."

"Jason is everything you could possibly ask for an an attorney: highly intelligent, thoughtful, and extraordinarily knowledgeable in his specialty of the law. In a very short period of time Jason was able to assimilate a laundry list of details and offer a compelling strategy on how to effectively proceed. Moreover, he is extremely responsive."

"Jason did an exceptional job in quickly understanding the intricacies of my case, grasping not only his field of expertise of employment law, but also the violations of law and SEC Regulations that were central to my dispute. The overall strategy he utilized insured that opposing counsel was challenged and made clear that this case would simply not proceed based on a timetable convenient to them. Jason is thorough, accurate and seemingly working at all hours based on phone calls and correspondence. Fortunately Jason has a very down to earth personality, understands issues readily and can convey in understandable language current "legal" circumstances and probable outcomes. I would easily and thoroughly recommend Jason for issues related to a Sarbanes-Oxley or employment related dispute."

"I selected Jason to handle my case after consulting with three other lawyers because of his extensive SOX experience and negotiation skills. My decision paid off as he easily surpassed all of my expectations. He quickly analyzed the merits of my case and aggressively engaged my former employer to reach a favorable settlement, avoiding years of potential litigation. He was responsive, professional, ethical and a great advocate on my behalf. I truly believe that I could not have found a better lawyer to represent my interests. He would be the first person I would recommend if a colleague or friend were to ever need similar services. Put simply, Jason is a top notch lawyer who works tirelessly to achieve a positive outcome for his clients. It's easy to see why he is regarded as an expert in the field."

"Jason Zuckerman is the most focused, thoughtful and aggressive attorneys I have ever known, let alone had the pleasure to have on my side in a highly complex legal case. He brought well-honed legal insights and a rapid pace to our legal preparations. He forcefully brought those preparations to the opposing side, which gave them little choice but to engage with us until a positive settlement was reached. In addition, we found Jason to be extremely responsive at every step, even if it required working past midnight. His character is beyond reproach and his dedication through the entire process was unwavering. If I ever need someone in my legal court again, I won't hesitate for even a second, before I seek Jason's support."

# data[].attributes.attachment_link.title
Are disclosures made in the course of performing one's job duties protected? - Zuckerman Law

# data[].attributes.attachment_link.description
A consensus is emerging that the duty speech doctrine does not apply to SOX whistleblower claims.[i] The duty speech defense asserts that disclosures made while performing routine job duties are outside the ambit of protected conduct. The defense became increasingly popular in the wake of the Supreme Court's 2006 decision in Garcetti v.

# data[].attributes.headline
Must a SOX whistleblower prove that the individual who made the final decision to take the adverse action has personal knowledge of the whistleblower’s protected activity?

# data[].attributes.subject
Must a SOX whistleblower prove that the individual who made the final decision to take the adverse action has personal knowledge of the whistleblower’s protected activity?

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The second element of a SOX claim is knowledge of protected conduct. A whistleblower may establish employer knowledge by demonstrating that a supervisor or senior executive knew of the activity (actual knowledge) or that a person with knowledge of the disclosure influenced the official who decided to take the retaliatory action (constructive knowledge).

In a SOX retaliation suit against an employer, a whistleblower need only make a protected disclosure to someone who has either supervisory authority over them or authority to investigate and address misconduct. The supervisor's knowledge is imputed to the final decision maker.[i]

SOX whistleblowers can demonstrate knowledge of protected conduct using the cat's paw theory, i.e., by showing that the decision-maker followed the biased recommendation of a subordinate without independently investigating the reason or justification for the proposed adverse personnel action.

In Jayaraj v. Pro-Pharmaceuticals, Inc.,[ii] the employer was a start-up biotechnology company whose primary executives were a chief executive officer ("CEO") and a chief operating officer ("COO"). The CEO testified that when he decided to terminate the complainant's employment, he was unaware that she had engaged in protected activities. However, based on evidence that the CEO and COO worked closely together since the founding of the company, the ALJ found that the COO had likely told the CEO about the complainant's protected activity.

Can circumstantial evidence establish knowledge of SOX protected conduct?

Yes. A decision denying summary judgment in Erhart v. BofI Holding, Inc., Dist. Court, SD California 2017 (Sept. 11, 2017) illustrates the type of evidence that can establish knowledge of protected whistleblowing:

Erhart must allege that BofI "knew or suspected that [he] engaged in the protected activity." 29 CFR § 1980.104(e)(2)(ii); see also Tides, 644 F.3d at 814. This requirement is satisfied. Erhart alleges he reported much of the conduct he discovered to members of BofI's management team-particularly VP Ball. Some of Erhart's discoveries also made their way directly to SVP Tolla. As for Erhart's "two whistleblower tips to the SEC," he alleges that "BofI had knowledge of his whistleblowing." ( Id. ¶ 31.)

Further, the events that allegedly transpired around the time Erhart called off sick from work indicate BofI, at the minimum, "suspected that [he] engaged in the protected activity." See 29 CFR § 1980.104(e)(2)(ii). These circumstances include BofI accessing Erhart's work computer, BofI "going through all the documents" in Erhart's locked file cabinets, SVP Tolla locating Erhart's review of CEO Garrabrants's personal accounts, BofI preparing a letter terminating Erhart, BofI's alleged statements to the OCC about Erhart, and BofI's general counsel demanding that Erhart "come to a conference room to speak" when he returned his work laptop. ( See FAC ¶¶ 56-74.) If these allegations are true, a factfinder could draw the inference that BofI suspected or knew Erhart engaged in protected activity. Accordingly, Erhart's pleading meets the second element of a prima facie case for whistleblower retaliation under Sarbanes-Oxley.

Sarbanes-Oxley (SOX) Whistleblower Protection Law

We represent corporate whistleblowers nationwide in high-stakes whistleblower retaliation cases and have obtained substantial recoveries for CEOs, CFOs, auditors, accountants, risk managers, CISOs, and other executives and senior professionals. We have recovered more than $15 million for corporate whistleblowers and have obtained settlements in excess of one million dollars in at least five SOX matters. Click here to read reviews from senior executives and professionals that we represented in whistleblower retaliation matters.

To learn more about the Sarbanes-Oxley corporate whistleblower protection law, download our free guide Sarbanes-Oxley Whistleblower Protection: Robust Protection for Corporate Whistleblowers.

SEC Whistleblower Awards

We are also one of the leading law firms representing whistleblowers worldwide before the SEC, and indeed our attorneys represented whistleblowers at the SEC before the enactment of the Dodd-Frank Act. We helped shape the SEC rules implementing the SEC Whistleblower Program, and have represented whistleblowers in disclosing a wide range of violations of federal securities laws, including:

See our recent article in Forbes: One Billion Reasons Why The SEC Whistleblower-Reward Program Is Effective. If you have information you would like to report to the SEC, contact an experienced SEC whistleblower attorney at Zuckerman Law for a free, confidential consultation by calling 202-262-8959.

To learn more about the SEC Whistleblower Program, download our free guide SEC Whistleblower Program: Tips from SEC Whistleblower Attorneys to Maximize an SEC Whistleblower Award.
5 Tips for SEC Whistleblowers and Lessons Learned from SEC Whistleblower Awards
Qualifying for an SEC Whistleblower Award: Tips for SEC Whistleblowers

SEC Whistleblower Program and SEC Whistleblower Awards

Whistleblower Law Firm Representing Sarbanes-Oxley (SOX) Whistleblowers

We have assembled a team of leading whistleblower lawyers to provide top-notch representation to Sarbanes-Oxley (SOX) whistleblowers. Recently Washingtonian magazine named two of our attorneys top whistleblower lawyers. U.S. News and Best Lawyers® have named Zuckerman Law a Tier 1 Law Firm in the Washington D.C. metropolitan area.

The whistleblower lawyers at Zuckerman Law have substantial experience litigating Sarbanes Oxley whistleblower retaliation claims and have achieved substantial recoveries for officers, executives, accountants, auditors, and other senior professionals. To schedule a free preliminary consultation, click here or call us at 202-262-8959.

Matt Stock is a Certified Public Accountant, Certified Fraud Examiner and former KPMG external auditor. As an auditor, Mr. Stock developed an expertise in financial statement analysis, internal controls testing and fraud recognition, and he uses his auditing experience to help whistleblowers investigate and disclose complex financial frauds to the government and obtain damages for retaliation. He is lead author of SEC Whistleblower Program: Tips from SEC Whistleblower Attorneys to Maximize an SEC Whistleblower Award.

Both Bachman and Zuckerman served in senior positions at the Office of Special Counsel, where they oversaw investigations of whistleblower retaliation claims and whistleblower disclosures, and enforced the Whistleblower Protection Act.

Eric Bachman has substantial experience litigating precedent-setting employment cases. His wins include a $100 million settlement in a disparate impact Title VII class action and a $16 million class action settlement against a major grocery chain. Having served as Special Litigation Counsel in the Civil Rights Division of the Department of Justice and as lead or co-counsel in numerous jury trials, Bachman is ready to go the distance to obtain the relief that you deserve.

Bachman and Zuckerman served on the Department of Labor's Whistleblower Protection Advisory Committee, which makes recommendations to the Secretary of Labor to improve OSHA's administration of federal whistleblower protections.

Jason Zuckerman was recognized by Washingtonian magazine as a "Top Whistleblower Lawyer" in 2017, 2015, 2009, and 2007, selected by his peers to be included in The Best Lawyers in America® in the category of employment law (2011-2017), and selected by his peers to be listed in SuperLawyers(2012 and 2015-2017) in the category of labor and employment law. Zuckerman is rated 10 out of 10 by Avvo, based largely on client reviews, and rated AV Preeminent® by Martindale-Hubbellbased on peer reviews.

The firm has published extensively on whistleblower rights and protections, and regularly speaks nationwide at seminars and continuing legal education conferences. We blog about new developments in whistleblower law at the Whistleblower Protection Blog.

Client Testimonials from Executives and Senior Professionals in SOX Whistleblower Retaliation Matters

"Jason is the consummate professional when it comes to SOX retaliation claims. He is, without question, one of the most deeply knowledgeable, technical, and astute attorneys in this very specialized body of law. During one of the most difficult times in my professional career, Jason not only provided exceptional legal guidance, but equally as important, he provided emotional support that was vital to my family and me. Jason ran circles around the "major national law firm" team that was assigned to defend my employer. In fact, Jason made them look silly at times. Jason always advocated my best interests, not his own. Jason is not only an exceptional attorney who helped my family to achieve a favorable outcome, but he is a friend. I've worked with major law firms throughout my career and when it comes to SOX and employment law matters, there is not a finer, more talented attorney than Jason Zuckerman."

"Jason is everything you could possibly ask for an an attorney: highly intelligent, thoughtful, and extraordinarily knowledgeable in his specialty of the law. In a very short period of time Jason was able to assimilate a laundry list of details and offer a compelling strategy on how to effectively proceed. Moreover, he is extremely responsive."

"Jason did an exceptional job in quickly understanding the intricacies of my case, grasping not only his field of expertise of employment law, but also the violations of law and SEC Regulations that were central to my dispute. The overall strategy he utilized insured that opposing counsel was challenged and made clear that this case would simply not proceed based on a timetable convenient to them. Jason is thorough, accurate and seemingly working at all hours based on phone calls and correspondence. Fortunately Jason has a very down to earth personality, understands issues readily and can convey in understandable language current "legal" circumstances and probable outcomes. I would easily and thoroughly recommend Jason for issues related to a Sarbanes-Oxley or employment related dispute."

"I selected Jason to handle my case after consulting with three other lawyers because of his extensive SOX experience and negotiation skills. My decision paid off as he easily surpassed all of my expectations. He quickly analyzed the merits of my case and aggressively engaged my former employer to reach a favorable settlement, avoiding years of potential litigation. He was responsive, professional, ethical and a great advocate on my behalf. I truly believe that I could not have found a better lawyer to represent my interests. He would be the first person I would recommend if a colleague or friend were to ever need similar services. Put simply, Jason is a top notch lawyer who works tirelessly to achieve a positive outcome for his clients. It's easy to see why he is regarded as an expert in the field."

"Jason Zuckerman is the most focused, thoughtful and aggressive attorneys I have ever known, let alone had the pleasure to have on my side in a highly complex legal case. He brought well-honed legal insights and a rapid pace to our legal preparations. He forcefully brought those preparations to the opposing side, which gave them little choice but to engage with us until a positive settlement was reached. In addition, we found Jason to be extremely responsive at every step, even if it required working past midnight. His character is beyond reproach and his dedication through the entire process was unwavering. If I ever need someone in my legal court again, I won't hesitate for even a second, before I seek Jason's support."

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Must a whistleblower prove that the individual who made the final decision to take the adverse action has personal knowledge of the whistleblower's protected activity? - Zuckerman Law

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The second element of a SOX claim is knowledge of protected conduct. A whistleblower may establish employer knowledge by demonstrating that a supervisor or senior executive knew of the activity (actual knowledge) or that a person with knowledge of the disclosure influenced the official who decided to take the retaliatory action (constructive knowledge).

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Can a whistleblower get a qui tam award for reporting fraud on the government?

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Can a whistleblower get a qui tam award for reporting fraud on the government?

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False Claims Act Qui Tam Whistleblower Lawyers

False Claims Act qui tam whistleblowers, also known as relators, have enabled the government to recover nearly $30 billion. In fiscal year 2017 alone, qui tam actions brought by whistleblowers resulted in $3.4 billion in settlements and judgments, and the government paid $392 million in whistleblower awards to False Claims Act whistleblowers.

Call us today at 202-262-8959 to find out if you might be eligible for a False Claims Act whistleblower award. Recently Washingtonian magazine named two of our attorneys top whistleblower lawyers.

Frequently Asked Questions About False Claims Act Qui Tam Whistleblower Law

A qui tam whistleblower can be eligible for a large recovery. But there are many pitfalls and obstacles to proving liability, and there are unique rules and procedures that govern qui tam whistleblower cases. Therefore, it is critical to retain experienced counsel. This FAQ provides an overview of some of the key aspects of False Claims Act claims.

Whistleblower Retaliation Laws Protecting Whistleblowers at Federal Contractors and Grantees

Courageous whistleblower that come forward to report fraud deserve robust protection against retaliation. Below is a list of common questions about key aspects of the anti-retaliation provisions of the False Claims Act and the NDAA.

Experienced Washington DC False Claims Act Qui Tam Whistleblower Attorneys Representing Whistleblowers Nationwide

The experienced whistleblower attorneys at leading whistleblower law firm Zuckerman Law have substantial experience representing whistleblowers disclosing fraud and other wrongdoing at government contractors and grantees. To schedule a free confidential consultation, click here or call us at 202-262-8959.

Our experience includes:

Representing whistleblowers in NDAA retaliation claims before the Department of Defense, and Department of Homeland Security, Department of Justice Offices of Inspectors General.

Litigating False Claims Act retaliation cases.

Representing qui tam relators in False Claims Act cases.

Representing whistleblowers disclosing fraud on the government in Congressional investigations.

Training judges, senior Office of Inspector General officials, and federal law enforcement about whistleblower protections.

In addition, we have substantial experience representing whistleblowers under the Whistleblower Protection Act (WPA) and enforcing the WPA, the law that the NDAA whistleblower provisions are based upon. Two of the attorneys on our team served in senior positions at the U.S. Office of Special Counsel overseeing investigations of whistleblower retaliation claims and whistleblower disclosures.

Eric Bachman served as Deputy Special Counsel, Litigation and Legal Affairs, OSC, where he spearheaded an initiative to combat whistleblower retaliation at the Department of Veterans Affairs. During Bachman's tenure at OSC, the number of favorable actions for whistleblowers increased by over 50% agency-wide.

Jason Zuckerman served as Senior Legal Advisor to the Special Counsel at OSC, where he worked on implementation of the Whistleblower Protection Enhancement Act and several high-profile investigations, including a matter resulting in the removal of an Inspector General.

Before hiring a lawyer for a high-stakes whistleblower case, assess the lawyer's reputation, prior experience representing whistleblowers, knowledge of whistleblower laws and prior results. And consider the experience of other whistleblowers working with that attorney. See our client testimonials by clicking here.

U.S. News and Best Lawyers® have named Zuckerman Law a Tier 1 firm in Litigation - Labor and Employment in the Washington DC metropolitan area.

Both Eric Bachman and Jason Zuckerman served on the Department of Labor's Whistleblower Protection Advisory Committee, which makes recommendations to the Secretary of Labor to improve OSHA's administration of federal whistleblower protections.

Firm Principal Jason Zuckerman was recognized by Washingtonian magazine as a "Top Whistleblower Lawyer" in 2015, 2009, and 2007 selected by his peers to be included in The Best Lawyers in America® in the category of employment law (2011-2017), and selected by his peers to be listed in SuperLawyers (2012 and 2015-2017) in the category of labor and employment law. He is rated 10 out of 10 by Avvo, based largely on client reviews, and rated AV Preeminent® by Martindale-Hubbell based on peer reviews.

Eric Bachman, Chair of the Firm's Discrimination Practice, has substantial experience litigating precedent-setting individual and class action discrimination cases. His wins include a $100 million settlement in a disparate impact Title VII class action and a $16 million class action settlement against a major grocery chain. Having served as Special Litigation Counsel in the Civil Rights Division of the Department of Justice and as lead or co-counsel in numerous jury trials, Bachman is trial-tested and ready to fight for you to obtain the relief that you deserve.

The firm has published extensively on whistleblower rights and protections, and speaks nationwide at seminars and continuing legal education conferences. We blog about new developments under whistleblower retaliation and rewards laws at the Whistleblower Protection Blog.

The firm is routinely quoted in the media about whistleblower rights and protections.

Zuckerman Law has written extensively about whistleblower protections for employees of government contractors and grantees, including the following articles and blog posts:

Whistleblower Bounties

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Top-Rated False Claims Act Qui Tam Attorneys - Zuckerman Law

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False Claims Act qui tam whistleblowers, also known as relators, have enabled the government to recover nearly $30 billion. In fiscal year 2017 alone, qui tam actions brought by whistleblowers resulted in $3.4 billion in settlements and judgments, and the government paid $392 million in whistleblower awards to False Claims Act whistleblowers.

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What is a qui tam whistleblower lawsuit?

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What is a qui tam whistleblower lawsuit?

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The False Claims Act contains a provision allowing whistleblowers, or qui tam "relators", to bring suits on behalf of the United States against the false claimant. "Qui tam is short for the Latin phrase qui tam pro domino rege quam pro se ipso in hac parte sequitur, which means 'who pursues this action on our Lord the King's behalf as well as his own.'" V t. Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S. 765, 768 n.1 (2000).

Jason Zuckerman, Principal of Zuckerman Law, litigates whistleblower retaliation, qui tam, wrongful discharge, and other employment-related claims. He is rated 10 out of 10 by Avvo, was recognized by Washingtonian magazine as a "Top Whistleblower Lawyer" in 2015 and selected by his peers to be included in The Best Lawyers in America® and in SuperLawyers.

Important notice

Information contained in this website should not be relied on as legal advice. You should consult an attorney for advice on your specific situation. Visiting this site or relying on information gleaned from the site does not create an attorney-client relationship with Zuckerman Law. Contacting Zuckerman Law or providing information to Zuckerman Law about a potential legal claim does not create an attorney-client relationship with Zuckerman Law. The content on this website is the property of Zuckerman Law and may not be used without the written consent thereof.

© 2018 Zuckerman Law, All Rights Reserved. Sitemap

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What is a qui tam whistleblower lawsuit? - Zuckerman Law

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The False Claims Act contains a provision allowing whistleblowers, or qui tam "relators", to bring suits on behalf of the United States against the false claimant. "Qui tam is short for the Latin phrase qui tam pro domino rege quam pro se ipso in hac parte sequitur, which means 'who pursues this action on our Lord the King's behalf as well as his own.'" V t.

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What types of false claims are prohibited by the False Claims Act?

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What types of false claims are prohibited by the False Claims Act?

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False Claims Prohibited by the False Claims Act

The False Claims Act permits whistleblowers, also known as qui tam relators to recover damages on behalf of the federal government in return for a contingency fee, also known as a relator share. The statute prohibits "(A) knowingly present[ing], or caus[ing] to be presented, a false or fraudulent claim for payment or approval; [and] (B) knowingly mak[ing], us[ing], or caus[ing] to be made or used, a false record or statement material to a false or fraudulent claim." 31 U.S.C. § 3279(a)(1)(A)-(B). The elements of an FCA claim are as follows: "(1) the defendant submitted a claim to the government, (2) the claim was false, and (3) the defendant knew the claim was false." Pencheng Si v. Laogai Research Found., 71 F. Supp. 3d 73, 91 (D.D.C. 2014) (internal quotation marks omitted).

There are two types of falsity prohibited by the False Claims Act, express legal falsity and implied legal falsity.

Express Legal Falsity (Factually False Claim)

A claim of express falsity arises where a contractor fails to comply with the requirements for the goods or services that it agreed to provide the federal government. A factually false claim is one that "is untrue on its face," for example if it "include[s] 'an incorrect description of goods or services provided or a request for reimbursement for goods or services never provided.'" United States v. Kellogg Brown & Root Servs., Inc., 800 F. Supp. 2d 143, 154 (D.D.C. 2011) (citing United States v. Sci. Applications Int'l Corp. (SAIC II), 626 F.3d 1257, 1266 (D.C. Cir.2010)). Examples include billing for services that were never provided or charging the government for an armored vehicle but providing a vehicle that is not armored.

Legal Falsity (False Certification)

A false certification may be either express or implied:

Express false certification occurs when a claimant explicitly represents that he or she has complied with a statute, regulation, or contractual term, but in fact has not complied.

Implied false certification occurs when "the defendant submits a claim for payment that makes specific representations about the goods or services provided, but knowingly fails to disclose the defendant's noncompliance with a statutory, regulatory, or contractual requirement," and that "omission renders those representations misleading." Escobar, 136 S. Ct. at 1995.

A claim of implied certification arises where the claim for payment to the Government implicitly constitutes a certification of compliance with certain applicable regulations. A government contractor's non-compliance with a government regulation can violate the False Claims Actt where there is a relevant connection to the contract at issue. In 2016, the Supreme Court held in Escobar that an FCA complaint premised on implied certification must satisfy "two conditions": "first, the claim . . . makes specific representations about the goods or services provided; and second, the defendant's failure to disclose non compliance with material statutory, regulatory, or contractual requirements makes those representations misleading half-truths."

Escobar also provides important guidance on materiality:

Materiality turns on the "effect on the likely or actual behavior of the recipient of the alleged misrepresentation." Universal Health, 136 S. Ct. 1989 at 2002.

To plead materiality with the requisite particularity, a relator may draw inferences from various sources, including the Government's history of declining to pay claims for failure to comply with the applicable regulation. See Universal Health, 136 S. Ct. at 2003 (noting that materiality may be premised on "evidence that the defendant knows that the Government consistently refuses to pay claims in the mine run of cases based on noncompliance with the particular statutory, regulatory, or contractual requirement[s]").

Materiality is absent at the pleading stage when the relator's chronology suggests that the Government knew of the alleged fraud, yet paid the contractor anyway. See Universal Health, 136 S. Ct. at 2003-04 ("[I]f the Government pays a particular claim in full despite its actual knowledge that certain requirements were violated, that is very strong evidence that those requirements are not material. Or, if the Government regularly pays a particular type of claim in full despite actual knowledge that certain requirements were violated, and has signaled no change in position, that is strong evidence that the requirements are not material.").

Fraud-In-The-Inducement or Promissory Fraud

The False Claims Act also prohibits fraud-in-the-inducement, i.e., where the contract or extension of government benefit was originally obtained through false statements or fraudulent conduct.

The Supreme Court recognize a fraud-in-the-inducmenent theory when it held in U.S. ex. rel. Marcus v. Hess, 317 U.S. 537 (1943) that contracts obtained under a collusive bidding scheme violated the FCA by defrauding the government and compelling it to pay more "than it would have been required to pay had there been free competition in the open market."

To establish fraudulent inducement under the FCA, a relator must show that a false statement, omission, or misrepresentation "`caused' or `induced' the government to enter into a contract, such that but for the misrepresentations, the government would not have awarded the contract and would not have paid the claim." United States ex rel. Thomas v. Siemens AG, 991 F. Supp. 2d 540, 569 (E.D. Pa. 2014).

A Grant Assurance is a Claim

A grant assurance in an application for federal funds or a grant progress report is a "claim" under the False Claims Act since representations made in the progress report trigger the payment of grant funds. See United States ex rel. Bauchwitz v. Holloman, 671 F.Supp.2d 674, 689 (E.D.Pa.2009).

Examples of False Claims

Off-label use is the unapproved use of an approved drug, or the use of a drug for purposes other than those that have been approved by the FDA.

Experienced False Claims Act Whistleblower Lawyers

The experienced whistleblower lawyers at leading whistleblower law firm Zuckerman Law have represented whistleblowers under the qui tam provisions of the False Claims Act and under other whistleblower reward and whistleblower protection laws. To schedule a free consultation, click here or call us at 202-262-8959.

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What types of false claims are prohibited by the False Claims Act? - Zuckerman Law

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The False Claims Act permits whistleblowers, also known as qui tam relators to recover damages on behalf of the federal government in return for a contingency fee, also known as a relator share.

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What is the first-to-file bar in False Claims Act qui tam cases?

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What is the first-to-file bar in False Claims Act qui tam cases?

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False Claims Act First-to-File Bar

The first-to-file bar prohibits a whistleblower from bringing suit based on a fraud already disclosed through identified public channels, unless the whistleblower is "an original source of the information". It provides that, "[w]hen a person brings an action under [the False Claims Act], no person other than the Government may intervene or bring a related action based on the facts underlying the pending action." 31 U.S.C. § 3730(b)(5). The first-to-file bar ensures that only one relator will share in the government's recovery and encourages prompt filing.

The Fourth Circuit Court of Appeals recently held that the appropriate reference point for a first-to-file analysis is the set of facts in existence at the time that the FCA action under review is commenced. Facts that may arise after the commencement of a relator's action, such as the dismissals of earlier-filed, related actions pending at the time the relator brought his or her action, do not factor into this analysis.

Experienced False Claims Act Qui Tam Whistleblower Attorneys

The experienced whistleblower attorneys at leading whistleblower law firm Zuckerman Law have substantial experience representing whistleblowers disclosing fraud and other wrongdoing at government contractors and grantees. To schedule a free preliminary consultation, click here or call us at 202-262-8959.

Our experience includes:

Representing qui tam relators in False Claims Act actions concerning off-label marketing, false billing, and education loan fraud (inflating entitlement to interest rate subsidies).

Representing whistleblowers in NDAA retaliation claims before the Department of Defense, and Department of Homeland Security, Department of Justice Offices of Inspectors General.

Litigating False Claims Act retaliation cases.

Representing whistleblowers disclosing fraud on the government in Congressional investigations.

Training judges, senior Office of Inspector General officials, and federal law enforcement about whistleblower protections.

In addition, we have substantial experience representing whistleblowers under the Whistleblower Protection Act (WPA) and enforcing the WPA, the law that the NDAA whistleblower provisions are based upon. Two of the attorneys on our team served in senior position at the U.S. Office of Special Counsel overseeing investigations of whistleblower retaliation claims and whistleblower disclosures.

Eric Bachman served as Deputy Special Counsel, Litigation and Legal Affairs, OSC, where he spearheaded an initiative to combat whistleblower retaliation at the Department of Veterans Affairs. During Bachman's tenure at OSC, the number of favorable actions for whistleblowers increased by over 50% agency-wide.

Jason Zuckerman served as Senior Legal Advisor to the Special Counsel at OSC, where he worked on implementation of the Whistleblower Protection Enhancement Act and several high-profile investigations, including a matter resulting in the removal of an Inspector General.

Before hiring a lawyer for a high-stakes whistleblower case, assess the lawyer's reputation, prior experience representing whistleblowers, knowledge of whistleblower laws and prior results. And consider the experience of other whistleblowers working with that attorney. See our client testimonials by clicking here.

U.S. News and Best Lawyers® have named Zuckerman Law a Tier 1 firm in Litigation - Labor and Employment in the Washington DC metropolitan area.

Both Eric Bachman and Jason Zuckerman served on the Department of Labor's Whistleblower Protection Advisory Committee, which makes recommendations to the Secretary of Labor to improve OSHA's administration of federal whistleblower protections.

Firm Principal Jason Zuckerman was recognized by Washingtonian magazine as a "Top Whistleblower Lawyer" in 2015, 2009, and 2007 selected by his peers to be included in The Best Lawyers in America® in the category of employment law (2011-2017), and selected by his peers to be listed in SuperLawyers (2012 and 2015-2017) in the category of labor and employment law. is rated 10 out of 10 by Avvo, based largely on client reviews, and rated AV Preeminent® by Martindale-Hubbell based on peer reviews.

Eric Bachman, Chair of the Firm's Discrimination Practice, has substantial experience litigating precedent-setting individual and class action discrimination cases. His wins include a $100 million settlement in a disparate impact Title VII class action and a $16 million class action settlement against a major grocery chain. Having served as Special Litigation Counsel in the Civil Rights Division of the Department of Justice and as lead or co-counsel in numerous jury trials, Bachman is trial-tested and ready to fight for you to obtain the relief that you deserve.

The firm has published extensively on whistleblower rights and protections, and speaks nationwide at seminars and continuing legal education conferences. We blog about new developments under whistleblower retaliation and rewards laws at the Whistleblower Protection Blog.

The firm is routinely quoted in the media about whistleblower rights and protections.

Zuckerman Law has written extensively about whistleblower protections for employees of government contractors and grantees, including the following articles and blog posts:

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What is the first-to-file bar in False Claims Act qui tam cases? - Zuckerman Law

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False Claims Act First-to-File Bar The first-to-file bar prohibits a whistleblower from bringing suit based on a fraud already disclosed through identified public channels, unless the whistleblower is "an original source of the information". It provides that, "[w]hen a person brings an action under [the False Claims Act], no person other than the Government may...

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What is the requirement to file a False Claims Act qui tam action under seal?

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What is the requirement to file a False Claims Act qui tam action under seal?

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Filing a False Claims Act Case Under Seal

The False Claims Act requires that a qui tam action must be filed under seal and remain seal for at least 60 days. This procedure enables the government to investigate the matter, so that it may decide whether to take over the relator's action or to instead allow the relator to litigate the action in the government's place. The purpose of the seal provision is to avoid alerting defendants to a pending federal criminal investigation. State Farm Fire and Cas. Co. v. US, 137 S. Ct. 436 (2016).

Failure to file under seal could potentially jeopardize a relator's ability recover a whistleblower bounty, but the False Claims Act does not require automatic dismissal for a seal violation.

A False Claims Act retaliation claim can also be filed under seal.

Experienced False Claims Act Qui Tam Whistleblower Attorneys

The experienced whistleblower attorneys at leading whistleblower law firm Zuckerman Law have substantial experience representing whistleblowers disclosing fraud and other wrongdoing at government contractors and grantees. To schedule a free preliminary consultation, click here or call us at 202-262-8959.

Our experience includes:

Representing qui tam relators in False Claims Act actions concerning off-label marketing, false billing, and education loan fraud (inflating entitlement to interest rate subsidies).

Representing whistleblowers in NDAA retaliation claims before the Department of Defense, and Department of Homeland Security, Department of Justice Offices of Inspectors General.

Litigating False Claims Act retaliation cases.

Representing whistleblowers disclosing fraud on the government in Congressional investigations.

Training judges, senior Office of Inspector General officials, and federal law enforcement about whistleblower protections.

In addition, we have substantial experience representing whistleblowers under the Whistleblower Protection Act (WPA) and enforcing the WPA, the law that the NDAA whistleblower provisions are based upon. Two of the attorneys on our team served in senior position at the U.S. Office of Special Counsel overseeing investigations of whistleblower retaliation claims and whistleblower disclosures.

Eric Bachman served as Deputy Special Counsel, Litigation and Legal Affairs, OSC, where he spearheaded an initiative to combat whistleblower retaliation at the Department of Veterans Affairs. During Bachman's tenure at OSC, the number of favorable actions for whistleblowers increased by over 50% agency-wide.

Jason Zuckerman served as Senior Legal Advisor to the Special Counsel at OSC, where he worked on implementation of the Whistleblower Protection Enhancement Act and several high-profile investigations, including a matter resulting in the removal of an Inspector General.

Before hiring a lawyer for a high-stakes whistleblower case, assess the lawyer's reputation, prior experience representing whistleblowers, knowledge of whistleblower laws and prior results. And consider the experience of other whistleblowers working with that attorney. See our client testimonials by clicking here.

U.S. News and Best Lawyers® have named Zuckerman Law a Tier 1 firm in Litigation - Labor and Employment in the Washington DC metropolitan area.

Both Eric Bachman and Jason Zuckerman served on the Department of Labor's Whistleblower Protection Advisory Committee, which makes recommendations to the Secretary of Labor to improve OSHA's administration of federal whistleblower protections.

Firm Principal Jason Zuckerman was recognized by Washingtonian magazine as a "Top Whistleblower Lawyer" in 2015, 2009, and 2007 selected by his peers to be included in The Best Lawyers in America® in the category of employment law (2011-2017), and selected by his peers to be listed in SuperLawyers (2012 and 2015-2017) in the category of labor and employment law. is rated 10 out of 10 by Avvo, based largely on client reviews, and rated AV Preeminent® by Martindale-Hubbell based on peer reviews.

Eric Bachman, Chair of the Firm's Discrimination Practice, has substantial experience litigating precedent-setting individual and class action discrimination cases. His wins include a $100 million settlement in a disparate impact Title VII class action and a $16 million class action settlement against a major grocery chain. Having served as Special Litigation Counsel in the Civil Rights Division of the Department of Justice and as lead or co-counsel in numerous jury trials, Bachman is trial-tested and ready to fight for you to obtain the relief that you deserve.

The firm has published extensively on whistleblower rights and protections, and speaks nationwide at seminars and continuing legal education conferences. We blog about new developments under whistleblower retaliation and rewards laws at the Whistleblower Protection Blog.

The firm is routinely quoted in the media about whistleblower rights and protections.

Zuckerman Law has written extensively about whistleblower protections for employees of government contractors and grantees, including the following articles and blog posts:

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What is the requirement to file a False Claims Act qui tam action under seal? - Zuckerman Law

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The False Claims Act requires that a qui tam action must be filed under seal and remain seal for at least 60 days. This procedure enables the government to investigate the matter, so that it may decide whether to take over the relator's action or to instead allow the relator to litigate the action in the government's place.

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What is the statute of limitations for a False Claims Act qui tam action?

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What is the statute of limitations for a False Claims Act qui tam action?

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False Claims Act Statute of Limitations

A qui tam relator must file suit either six years from when the fraud is committed or three years after the United States knows or should know about the material facts, whichever comes later (so long as the action is filed within ten years of the alleged fraud). 31 U.S.C. § 3731(b).

The statute of limitations for a False Claims Act whistleblower retaliation case is three years.

Call us today for a free confidential consultation at 202-262-8959.

Experienced False Claims Act Qui Tam Whistleblower Attorneys

The experienced whistleblower attorneys at leading whistleblower law firm Zuckerman Law have substantial experience representing whistleblowers disclosing fraud and other wrongdoing at government contractors and grantees. To schedule a free preliminary consultation, click here or call us at 202-262-8959.

Our experience includes:

Representing qui tam relators in False Claims Act actions concerning off-label marketing, false billing, and education loan fraud (inflating entitlement to interest rate subsidies).

Representing whistleblowers in NDAA retaliation claims before the Department of Defense, and Department of Homeland Security, Department of Justice Offices of Inspectors General.

Litigating False Claims Act retaliation cases.

Representing whistleblowers disclosing fraud on the government in Congressional investigations.

Training judges, senior Office of Inspector General officials, and federal law enforcement about whistleblower protections.

In addition, we have substantial experience representing whistleblowers under the Whistleblower Protection Act (WPA) and enforcing the WPA, the law that the NDAA whistleblower provisions are based upon. Two of the attorneys on our team served in senior position at the U.S. Office of Special Counsel overseeing investigations of whistleblower retaliation claims and whistleblower disclosures.

Eric Bachman served as Deputy Special Counsel, Litigation and Legal Affairs, OSC, where he spearheaded an initiative to combat whistleblower retaliation at the Department of Veterans Affairs. During Bachman's tenure at OSC, the number of favorable actions for whistleblowers increased by over 50% agency-wide.

Jason Zuckerman served as Senior Legal Advisor to the Special Counsel at OSC, where he worked on implementation of the Whistleblower Protection Enhancement Act and several high-profile investigations, including a matter resulting in the removal of an Inspector General.

Before hiring a lawyer for a high-stakes whistleblower case, assess the lawyer's reputation, prior experience representing whistleblowers, knowledge of whistleblower laws and prior results. And consider the experience of other whistleblowers working with that attorney. See our client testimonials by clicking here.

U.S. News and Best Lawyers® have named Zuckerman Law a Tier 1 firm in Litigation - Labor and Employment in the Washington DC metropolitan area.

Both Eric Bachman and Jason Zuckerman served on the Department of Labor's Whistleblower Protection Advisory Committee, which makes recommendations to the Secretary of Labor to improve OSHA's administration of federal whistleblower protections.

Firm Principal Jason Zuckerman was recognized by Washingtonian magazine as a "Top Whistleblower Lawyer" in 2015, 2009, and 2007 selected by his peers to be included in The Best Lawyers in America® in the category of employment law (2011-2017), and selected by his peers to be listed in SuperLawyers (2012 and 2015-2017) in the category of labor and employment law. is rated 10 out of 10 by Avvo, based largely on client reviews, and rated AV Preeminent® by Martindale-Hubbell based on peer reviews.

Eric Bachman, Chair of the Firm's Discrimination Practice, has substantial experience litigating precedent-setting individual and class action discrimination cases. His wins include a $100 million settlement in a disparate impact Title VII class action and a $16 million class action settlement against a major grocery chain. Having served as Special Litigation Counsel in the Civil Rights Division of the Department of Justice and as lead or co-counsel in numerous jury trials, Bachman is trial-tested and ready to fight for you to obtain the relief that you deserve.

The firm has published extensively on whistleblower rights and protections, and speaks nationwide at seminars and continuing legal education conferences. We blog about new developments under whistleblower retaliation and rewards laws at the Whistleblower Protection Blog.

The firm is routinely quoted in the media about whistleblower rights and protections.

Zuckerman Law has written extensively about whistleblower protections for employees of government contractors and grantees, including the following articles and blog posts:

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What is the statute of limitations for a False Claims Act qui tam action? - Zuckerman Law

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A qui tam relator must file suit either six years from when the fraud is committed or three years after the United States knows or should know about the material facts, whichever comes later (so long as the action is filed within ten years of the alleged fraud). 31 U.S.C.

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What is the public disclosure bar in the False Claims Act?

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What is the public disclosure bar in the False Claims Act?

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False Claims Act Public Disclosure Bar

The public disclosure bar prohibits a relator from bringing a False Claims Act lawsuit based on a fraud that has already been disclosed through certain public channels, unless the relator is an "original source" of the information. 31 U.S.C. § 3730(e)(4)(A). An original source is "an individual who has direct and independent knowledge of the information on which the allegations are based and has voluntarily provided the information to the Government before filing [suit]." § 3730(e)(4)(B).

The public disclosure bar asks whether the relator's allegations are "substantially similar" to publicly available information. United States ex rel. Davis v. District of Columbia, 679 F.3d 832, 836 (D.C. Cir. 2012). But the public disclosure bar does not dictate that a relator must "possess direct and independent knowledge of all of the vital ingredients to a fraudulent transaction." United States ex rel. Springfield Terminal Railway Co. v. Quinn, 14 F.3d 645, 656 (D.C. Cir. 1994). Rather, "direct and independent knowledge of any essential element of the underlying fraud transaction" is sufficient to give the relator original-source status under the Act. Id. at 657.

In Springfield Terminal, the D.C. Circuit set forth specific criteria to evaluate whether the public disclosures bars a qui tam action:

1. The government has "enough information to investigate the case" either when the allegation of fraud itself has been publicly disclosed, or when both of its underlying factual elements-the misrepresentation and the truth of the matter-are already in the public domain.

2. "[I]f X + Y = Z, Z represents the allegation of fraud and X and Y represent its essential elements. In order to disclose the fraudulent transaction publicly, the combination of X and Y must be revealed, from which readers or listeners may infer Z, i.e., the conclusion that fraud has been committed." Id. at 654. Because the publicly disclosed pay vouchers reflected only the false statement (the arbitrator's claim for payment) and not the true facts (the services actually rendered), we held that the public disclosure bar did not apply. Id. at 655-56. That said, we stressed that a qui tam action cannot be sustained where both elements of the fraudulent transaction-X and Y-are already public, even if the relator "comes forward with additional evidence incriminating the defendant."

Experienced False Claims Act Qui Tam Whistleblower Attorneys

The experienced whistleblower attorneys at leading whistleblower law firm Zuckerman Law have substantial experience representing whistleblowers disclosing fraud and other wrongdoing at government contractors and grantees. To schedule a free preliminary consultation, click here or call us at 202-262-8959.

Our experience includes:

Representing qui tam relators in False Claims Act actions concerning off-label marketing, false billing, and education loan fraud (inflating entitlement to interest rate subsidies).

Representing whistleblowers in NDAA retaliation claims before the Department of Defense, and Department of Homeland Security, Department of Justice Offices of Inspectors General.

Litigating False Claims Act retaliation cases.

Representing whistleblowers disclosing fraud on the government in Congressional investigations.

Training judges, senior Office of Inspector General officials, and federal law enforcement about whistleblower protections.

In addition, we have substantial experience representing whistleblowers under the Whistleblower Protection Act (WPA) and enforcing the WPA, the law that the NDAA whistleblower provisions are based upon. Two of the attorneys on our team served in senior position at the U.S. Office of Special Counsel overseeing investigations of whistleblower retaliation claims and whistleblower disclosures.

Eric Bachman served as Deputy Special Counsel, Litigation and Legal Affairs, OSC, where he spearheaded an initiative to combat whistleblower retaliation at the Department of Veterans Affairs. During Bachman's tenure at OSC, the number of favorable actions for whistleblowers increased by over 50% agency-wide.

Jason Zuckerman served as Senior Legal Advisor to the Special Counsel at OSC, where he worked on implementation of the Whistleblower Protection Enhancement Act and several high-profile investigations, including a matter resulting in the removal of an Inspector General.

Before hiring a lawyer for a high-stakes whistleblower case, assess the lawyer's reputation, prior experience representing whistleblowers, knowledge of whistleblower laws and prior results. And consider the experience of other whistleblowers working with that attorney. See our client testimonials by clicking here.

U.S. News and Best Lawyers® have named Zuckerman Law a Tier 1 firm in Litigation - Labor and Employment in the Washington DC metropolitan area.

Both Eric Bachman and Jason Zuckerman served on the Department of Labor's Whistleblower Protection Advisory Committee, which makes recommendations to the Secretary of Labor to improve OSHA's administration of federal whistleblower protections.

Firm Principal Jason Zuckerman was recognized by Washingtonian magazine as a "Top Whistleblower Lawyer" in 2015, 2009, and 2007 selected by his peers to be included in The Best Lawyers in America® in the category of employment law (2011-2017), and selected by his peers to be listed in SuperLawyers (2012 and 2015-2017) in the category of labor and employment law. is rated 10 out of 10 by Avvo, based largely on client reviews, and rated AV Preeminent® by Martindale-Hubbell based on peer reviews.

Eric Bachman, Chair of the Firm's Discrimination Practice, has substantial experience litigating precedent-setting individual and class action discrimination cases. His wins include a $100 million settlement in a disparate impact Title VII class action and a $16 million class action settlement against a major grocery chain. Having served as Special Litigation Counsel in the Civil Rights Division of the Department of Justice and as lead or co-counsel in numerous jury trials, Bachman is trial-tested and ready to fight for you to obtain the relief that you deserve.

The firm has published extensively on whistleblower rights and protections, and speaks nationwide at seminars and continuing legal education conferences. We blog about new developments under whistleblower retaliation and rewards laws at the Whistleblower Protection Blog.

The firm is routinely quoted in the media about whistleblower rights and protections.

Zuckerman Law has written extensively about whistleblower protections for employees of government contractors and grantees, including the following articles and blog posts:

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What is the public disclosure bar in the False Claims Act? - Zuckerman Law

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The public disclosure bar prohibits a relator from bringing a False Claims Act lawsuit based on a fraud that has already been disclosed through certain public channels, unless the relator is an "original source" of the information. 31 U.S.C. § 3730(e)(4)(A).

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Reverse false claims liability arises where an entity or individual avoids the payment of money due to the government, e.g., failing to pay royalties owed to the government for mining on public lands.

Section 3729(a)(1)(G) creates liability for a person who "knowingly makes, uses, or causes to be made or used, a false record or statement material to an obligation to pay or transmit money or property to the Government," or who "knowingly conceals or knowingly and improperly avoids or decreases an obligation to pay or transmit money or property to the Government." 31 U.S.C. § 3729(a)(1)(G). To establish reverse false claim liability, "a relator must show that the defendant owed a definite and clear 'obligation to pay money to the United States at the time of the allegedly false statements.'" United States v. Space Coast Med. Assocs., L.L.P., 94 F. Supp. 3d 1250, 1263 (M.D. Fla. 2015).

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What is a reverse false claim? - Zuckerman Law

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Reverse false claims liability arises where an entity or individual avoids the payment of money due to the government, e.g., failing to pay royalties owed to the government for mining on public lands.