10 Updates

Supreme Court Says Sarbox Whistleblower Protection Extends To Contractors

Mar 4 2014, 2:33pm CST | by

The U.S. Supreme Court today ruled the whistleblower protections in the Sarbanes-Oxley financial-reform law extend to employees of contractors of public companies, in a decision supporters say will...

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21 weeks ago

Supreme Court Says Sarbox Whistleblower Protection Extends To Contractors

Mar 4 2014, 2:33pm CST | by

The U.S. Supreme Court today ruled the whistleblower protections in the Sarbanes-Oxley financial-reform law extend to employees of contractors of public companies, in a decision supporters say will rein in the accountants and other outside contractors who closed their eyes to financial scandals at Enron and Worldcom, but which defense lawyers say could expose millions of small businesses to opportunistic employee suits.

The court, in a decision by Justice Ruth Bader Ginsburg, rejected Fidelity parent FMR’s argument that only direct employees of public companies should receive protection. FMR, like most mutual fund companies, operates its funds with zero employees under a contracting arrangement with separately incorporated investment advisors. It sought to avoid liability under a whistleblower-retaliation case filed by Jackie Hosang Lawson, a former senior director of finance who claimed she was punished for disclosing certain cost-accounting improprieties.

Fidelity warned of  “absurd results” if the whistleblower protections under Sarbox were extended to employees of every contractor working for a public company. Justices Anthony Kennedy, Samuel Alito and Sonia Sotomayor also dissented, saying the decision sweeps in low-level employees who will be able to file federal retaliation claims after witnessing trivial offenses.

As interpreted today, the Sarbanes-Oxley Act authorizes a babysitter to bring a federal case against his employer—a parent who happens to work at the local Walmart (a public company)—if the parent stops employing the babysitter after he expresses concern that the parent’s teenage son may have participated in an Internet purchase fraud. And it opens the door to a cause of action against a small business that contracts to clean the local Starbucks (a public company) if an employee is demoted after reporting that another nonpublic company client has mailed the cleaning company a fraudulent invoice.

“For 10 years employees of smaller contractors likely believed that it would be an exercise in futility to bring claims” under Sarbox, said Steven J. Pearlman, a partner in Proskauer’s Chicago office who focuses on whistleblower defense. “Now that there is a clear Supreme Court precedent we can expect them to bring cases.”

But the law is clear, the Supreme Court ruled. Congress ordered protection for “any officer, employee, contractor, subcontractor, or agent” of any public company. In the case of the FMR executive working for a fund manager, the court said, “it is implausible that Congress intended to leave such an employee remediless.”

This despite the fact that the heading on the section of the law covering whistleblowers says: “Protection for Employees of Publicly Traded Companies Who Provide Evidence of Fraud.”

Ginsburg, in the majority opinion, said there is “scant evidence” that the floodgates scenario is “more than hypothetical.”

“Few housekeepers or gardeners, we suspect, are likely to come upon and comprehend evidence of their employer’s complicity in fraud,” she wrote.

Pearlman said the threat is very real that enterprising employment lawyers will seek out contractor employees now with any plausible claim of retaliation that can be tied to a financial matter. Under federal labor law an employee need only show that retaliation was a factor in his or her demotion or dismissal under a low preponderance of the evidence standard. Employers, on the other hand, must provide clear and convincing evidence the employee was fired for legitimate reasons.

The result is that employees can file relatively weak cases with the anticipation employers will settle to avoid even larger legal bills. Millions of contractors of public companies, meanwhile, will have to hire lawyers like Pearlman to devise compliance plans and defense strategies if they want to minimize the risk. The financial improprieties employees can claim to have blown the whistle on include mail and wire fraud, which have extremely broad definitions and could include virtually anything impacting a public company’s finances or the activity of its employees.

The dissent drew a surprising mix of conservative justices and the somewhat liberal Sotomayor. Archconservative Justice Antonin Scalia signed off on the majority opinion, but with a generous helping of snark. He criticized Ginsburg for attempting to figure out what Congress meant to accomplish when it wrote the law, instead of simply interpreting the words on the page.

Reliance on legislative history rests upon several frail premises. First, and most important: That the statute means what Congress intended. It does not. Because we are a government of laws, not of men, and are governed by what Congress enacted rather than by what it intended, the sole object of the interpretative enterprise is to determine what a law says. Second: That there was a congressional “intent” apart from that reflected in the enacted text. On most issues of detail that come before this Court, I am confident that the majority of Senators and Representitives had no views whatever on how the issues should be resolved  —indeed, were unaware of the issues entirely.

Source: Forbes Business

 
Update
10

7 weeks ago

RM47mil KWSG contributions still unclaimed

Jun 9 2014 7:54am CDT | Source: Business Times Malaysia

KUALA LUMPUR: About RM47 million of contributions in the Teachers Provident Fund (KWSG) still remain unclaimed, the D ...
Source: Business Times Malaysia   Full article at: Business Times Malaysia
 

 
Update
9

7 weeks ago

Gold shop lost almost RM1mil

Jun 9 2014 3:50am CDT | Source: Business Times Malaysia

KANGAR: A gold shop owner lost almost RM1 million after after the safe on in his shop was b ...
Source: Business Times Malaysia   Full article at: Business Times Malaysia
 

 
Update
8

7 weeks ago

Motion to debate MAS losses in Dewan Rakyat rejected

Jun 9 2014 3:39am CDT | Source: Business Times Malaysia

KUALA LUMPUR: AN emergency motion to debate the losses incurred by Malaysia Airlines last year, amounting to RM1.2 billion was rejec ...
Source: Business Times Malaysia   Full article at: Business Times Malaysia
 

 
Update
7

7 weeks ago

MH370 Tragedy: Hisham: RM27.6 mil spent on 1st phase of SAR

Jun 9 2014 2:11am CDT | Source: Business Times Malaysia

KUALA LUMPUR: Malaysia spent some RM27.6 million in its first phase of the search operations for missing Malaysia Airline flight MH370, said Acting Transport Minister, Datuk Seri Hisham ...
Source: Business Times Malaysia   Full article at: Business Times Malaysia
 

 
Update
6

7 weeks ago

9.1m litres of diesel seized in a month

Jun 8 2014 1:11am CDT | Source: Business Times Malaysia

PUTRAJAYA: The Domestic Trade, Cooperatives, and Consumerism ministry has seized some 9.1 million litres of diesel and property worth RM58 million since mounting ‘Operasi Diesel Selatan’ in the southern states last month. ...
Source: Business Times Malaysia   Full article at: Business Times Malaysia
 

 
Update
5

7 weeks ago

Girl, 9, awarded RM2.78m compensation for medical negligence

Jun 6 2014 4:56am CDT | Source: Business Times Malaysia

KUALA LUMPUR: A nine-year-old girl who suffered brain damage during her birth at a government hospital was awarded over RM2.78 million in compens ...
Source: Business Times Malaysia   Full article at: Business Times Malaysia
 

 
Update
4

7 weeks ago

Malaysia's total trade in April up 12pc

Jun 5 2014 11:52pm CDT | Source: Business Times Malaysia

KUALA LUMPUR: Malaysia's total trade in April 2014 rose by 12 per cent from a year ago to RM123.86 billion due to growing trading activities, International Trade and Industry Minister ...
Source: Business Times Malaysia   Full article at: Business Times Malaysia
 

 
Update
3

7 weeks ago

Works Ministry to spend RM20m for upgrading works at 50 accident black spots

Jun 4 2014 11:35pm CDT | Source: Business Times Malaysia

JOHOR BARU: The Works Ministry will implement upgrading works at 50 accident prone locations in the country that have been identified this year involving an allocation of RM ...
Source: Business Times Malaysia   Full article at: Business Times Malaysia
 

 
Update
2

7 weeks ago

Najib launches loan scheme for Ramadan traders

Jun 4 2014 10:24pm CDT | Source: Business Times Malaysia

PUTRAJAYA: Prime Minister Datuk Seri Najib Razak today launches RM45 million Ramadan ...
Source: Business Times Malaysia   Full article at: Business Times Malaysia
 

 
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1

8 weeks ago

Residents bring up objection against Kidex to Suhakam

Jun 4 2014 4:49am CDT | Source: Business Times Malaysia

PETALING JAYA: A group of 20 Petaling Jaya residents held a meeting with the Human Rights Commission of Malaysia (Suhakam) over their objection against the proposed RM2.2 billion Kinr ...
Source: Business Times Malaysia   Full article at: Business Times Malaysia
 

 

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