National Whistleblower Day

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:

Continue Reading Amicus Filed in Major SOX case, Genberg v. Porter

On February 3, 2012, two judges of the U.S. Court of Appeals for the First Circuit dismissed the SOX whistleblower claims of Jackie Lawson and Jonathan Zang. The case is Lawson v. FMR, LLC, Case No. 10-2240 (1st Cir. 2012). To justify this dismissal, the two judge majority held that the SOX whistleblower statute was not remedial, that it is but a “relatively small part” of SOX, that the Department of Labor (DOL) deserves no deference in SOX cases, and that the SOX whistleblower protection does not apply to the employees of contractors of publicly traded companies. Judge Thompson, dissenting, got it right. Judges Lynch and Howard got it very wrong.

On the February 7, 2012, episode of Honesty Without Fear, I interviewed Indira Talwani, the attorney who represents Jackie Lawson. Thankfully, she has filed a petition for rehearing and asked the First Circuit to reverse its decision. We did not have enough time to cover all the issues raised in the decision. I am doing so here and now in this blog.

Continue Reading No SOX protection for contractor’s employees, First Circuit majority says

Originally Published by FCPA Compliance and Ethics Blog
Author: Thomas Fox

The holiday season is past and many of us have returned to work. However, if you are a Chief Compliance Officer (CCO) there is a gift that you may wish to give yourself, it is “The Whistleblower’s Handbook – A Step-by-Step Guide to Doing What’s Right and Protecting Yourself” authored by Stephen Martin Kohn, Executive Director of the National Whistleblowers Center. I do not suggest that CCO’s purchase this volume for their own protection, although the former Chief Executive Officer (CEO) of Olympus might have been able to use it before he was fired by the Olympus Board last October. No, I suggest that CCOs purchase this because many others in your company may well do so and it is the best single volume collection of all laws, rights and obligations related to whistle-blowing that I have come across.

I thought about Kohn’s book when I came across a couple of whistleblower related items last month. The first one was an article in the December 28, 2011 edition of the Wall Street Journal (WSJ), entitled “Internal BNY Mellon Documents Show Panic” by Jean Eaglesham and Michael Siconolfi. In the article they report on some of the emails and other documentary evidence that whistleblower Grant Wilson was able to obtain during the two year period that he was operating “as a government informant” while employed by Bank of New York Mellon (BNY). The WSJ obtained this evidence through an open-records request. Wilson was part of a group which brought a series of whistleblower lawsuits against BNY, which have led to several states, and the Manhattan US attorney, filing civil suits against BNY. Eaglesham and Siconolfi also reported that “the bank’s [BNY] foreign-exchange traders grew concerned about a leaker” and in an earlier WSJ article, entitled “Secret Informant Surfaces in BNY Currency Probe”, reporter Carrick Mollenkamp stated “BNY Mellon sought to discover the insider’s identity and to fight the lawsuits.”

Continue Reading “From Whistleblower to RICO Claimant”


The U.S. Department of Labor’s Administrative Review Board (ARB) (shown in a file photo) yesterday decided that the 2002 Sarbanes-Oxley Act (SOX) protects the employees of subsidiaries of publicly traded companies. The case is Carri Johnson v. Siemens Building Technologies, Inc., ARB Case No. 08-032 (ARB Mar. 31, 2011). This is the first case in which the Obama Era ARB requested amicus briefs. The prior administration had held that SOX would not protect employees of a subsidiary unless the employee could show that the subsidiary was acting as an agent of the publicly traded parent company. The National Whistleblowers Center (NWC) joined with the National Employment Lawyers Association (NELA) and the Government Accountability Project (GAP) to to submit an amicus brief as requested by the ARB. In the meantime, Congress enacted the Dodd-Frank Wall Street Reform and Consumer Protection Act. Section 929A of Dodd-Frank amended SOX to make coverage of subsidiaries clear. NWC submitted a supplemental brief. The ARB’s majority opinion, however, would not give direct effect to the Senate Report’s declaration that Section 929A was a clarification rather than an amendment. (S. Rep. 111-176, p. 11, stated, “This clarification would eliminate a defense now raised in a substantial number of actions brought by whistleblowers under the statute.”) Instead, the ARB finds that Section 929A is a reasonable interpretation of the 2002 SOX language, and consistent with its remedial purpose.

Continue Reading ARB holds that SOX covers subsidiaries