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5th Cir. Upholds SOX Decision of No Protected Activity

By Michael W. Fox, Esq.

There are two ways a claimant's Sarbanes Oxley whistleblowing case can make it to the 5th Circuit. One is an appeal from a district court if a claimant had foregone the administrative route and chosen to file directly in federal court (permitted if the administrative proceedings are not concluded within 180 days).

The other is an appeal of a ruling from the Administrative Review Board. That is what led to yesterday's decision in Allen v. Administrative Review Board (5th Cir. 1/22/08) [pdf]. The plaintiffs alleged that their complaints about their employer's failure to report problems with its software that calculated payoff amounts was protected activity under SOX.

Unfortunately for the plaintiffs, both the ALJ and the ARB had disagreed. And on appeal, the 5th Circuit noted the deferential standard of review -- whether the ARB's decision was ?arbitrary, capricious, an abuse of discretion, or otherwise contrary to law.? Here the Court found it was not.

Given the relative paucity of circuit level decisions under SOX, the Court did provide some helpful guidance for construing protected activity under SOX:

• an employee?s complaint must ?definitively and specifically relate? to one of the six enumerated categories found in § 1514A: mail, wire, bank or securities fraud, any rule or regulation of the SEC, or any provision of federal law relating to fraud against shareholders;
• an employee?s reasonable belief must be scrutinized under both a subjective and objective standard;
• 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;
• the ?objective reasonableness? standard applicable to SOX whistleblower claims is similar to the ?objective reasonableness? standard applicable to Title VII retaliation claims;
• while that can sometimes be decided as a matter of law, if there is a genuine issue of material fact it cannot be;
• perhaps most importantly, in the catch all provision (federal law relating to fraud against shareholders) the employee must reasonably believe that his or her employer acted with a mental state embracing intent to deceive, manipulate, or defraud its shareholders.

The Court did not decide about the requirement for scienter on the first 5 categories since the "issue [was] not before [them]" but perhaps tellingly noted that several ALJ's had made such a finding.

The Court also held that since one of the plaintiffs was a CPA, an "expert standard" had to be applied in reviewing the "objective standard."

An important opinion for those handling SOX claims, not to mention continued good news for Stewart Enterprises, the employer.

Full post as published by Jottings By An Employer's Lawyer on January 23, 2008 (boomark / email).