On Friday, January 6th 2017, the National Whistleblower Center filed an Amicus Brief before the Tenth Circuit in Genberg v. Porter. The Genberg case deals with the definition of reasonable belief under the Sarbanes-Oxley Act (SOX). SOX requires whistleblowers to have a reasonable belief that a violation has happened or might happen in the future in order to be protected. Consequently, the standard for reasonable belief has wide-reaching consequences for whistleblowers reporting on corporate fraud and misconduct. The principal author of the brief, Stephen M. Kohn, writes about the case below:

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Washington, D. C. May 24, 2016. The U.S. Court of Appeals for the 4th Circuit ruled in favor of a corporate whistleblower in a May 20, 2016 decision. The case, filed under the Sarbanes-Oxley Act by Mrs. Dinah R. Gunther, alleged that the Virginia-based software provider, Deltek, Inc. fired her after she raised accounting concerns to the company’s General Counsel, Audit Committee and the U.S. Securities and Exchange Commission.
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The Department’s Top Judges will Decide the “Burden of Proof” Whistleblower Must Meet to Prevail in Sarbanes-Oxley and Dodd-Frank Whistleblower Cases

The Department of Labor Administrative Review Board (ARB) will hold oral arguments in the case of Powers v. Union Pacific Railroad Company, ARB Case No. 13-034 on Wednesday, January 14 at 2pm.  This case will decide the burden of proof that whistleblowers must meet in order to prevail in retaliation cases filed under the key corporate whistleblower laws, including the Sarbanes-Oxley Act, the Dodd-Frank Act’s Consumer Safety laws, transportation safety laws, the Atomic Energy Act and the Affordable Care Act, among others.

National Whistleblower Center Executive Director Stephen M. Kohn will be one of the attorneys arguing the case on behalf of the whistleblowers.  Kohn called the Powers case “monumental.”  The case is being heard en banc by all of the top Labor Department appeals court judges who have the authority to decide whistleblower cases. 
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Yesterday, the National Whistleblower Center joined other groups in filing an amici curiae brief with the Department of Labor Administrative Review Board (ARB) in Powers v. Union Pacific Railroad Company, ARB Case No. 13-034.  Joining the NWC as amici are the National Employment Lawyers Association, the Truckers Justice Center and Teamsters for a Democratic Union.

The ARB called for amici to file briefs in the Powers case to consider the standard of proof for employees to establish the “contributing factor” test in whistleblower retaliation cases arising under the Sarbanes-Oxley Act  (SOX) and other whistleblower statutes.  The full ARB is considering whether an earlier 2-to-1 ARB panel decision in Fordham v. Fannie Mae, ARB No. 12-061 was correctly decided.  In Fordham, the ARB reversed and vacated an Administrative Law Judge’s recommended decision that had improperly weighed employer defenses in determining whether the employee had demonstrated her whistleblowing was a contributing factor in her termination.  
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SOX whistleblower protection covers mutual fund industry

Washington, D.C. March 4, 2014. The U.S. Supreme Court ruled today in Lawson v. FMR, LLC, that contractors and subcontractors of publicly traded companies are fully protected under the Sarbanes-Oxley Act for corporate whistleblowers.

Significantly, in today’s decision the Supreme Court explicitly held that investment advisors and

Yesterday, the National Whistleblowers Center filed an amicus, or friend of the court, brief with the U.S. Court of Appeals for the Third Circuit in its case of Wiest v. Lynch, Case No. 11-4257. The main issue is whether the Court should adopt the ARB’s broad “reasonable belief” standard for determining protection activity, or

Mike DeGuelleIn an unusual move, the Seventh Circuit U.S. Court of Appeals in Chicago has decided to appoint a lawyer for Milwaukee tax whistleblower Mike DeGuelle (pictured). Tax.com reports today that  DeGuelle blew the whistle on a prolonged tax cheating scheme by S. C. Johnson & Son, Inc. The scheme included taking advantage of IRS audit mistakes, destroying records, and buying a tax shelter from the now defunct accounting firm of Arthur Anderson.

DeGuelle filed a lawsuit against the company in federal court in Milwaukee.  The lawsuit claimed that the company engaged in a pattern of racketeering activities that included the tax fraud, and firing DeGuelle in retaliation for providing the government information about the fraud. DeGuelle’s lawsuit uses an improvement made to the criminal charge of witness retaliation. 18 U.S.C. § 1513(e). One issue is whether a victim of such retaliation can seek damages under the Racketeer Influenced and Corrupt Organizations Act (RICO). The company said the law does not permit such a recovery, and the district court agreed, dismissing DeGuelle’s lawsuit. DeGuelle appealed, without the representation of his original lawyer. Now the Seventh Circuit has decided to appoint a lawyer for him and allow the new lawyer to start briefing the case all over again.


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According to Reuters, whistleblower, Ralph Fabiano, sued German pharmaceutical manufacturing company, BAYER AG. Fabiano alleges that he was terminated from his position at the company for refusal to alter the results of particular auditing and accounting tests required under the Sarbanes-Oxley Act. Subsequent to Fabiano’s dogged refusal to falsify data, he was removed from