Where are SOX whistleblower cases litigated?

Sarbanes-Oxley Whistleblower Litigation

A claim under the anti-retaliation provision of the Sarbanes-Oxley Act must be filed initially at the Occupational Safety and Health Administration at the U.S. Department of Labor. They will perform an investigation and if they conclude that the employer violated SOX, OSHA can order preliminary reinstatement.

After the process at OSHA is complete, SOX retaliation claims are litigated before the Department of Labor Office of Administrative Law Judges or in federal court. SOX provides a right to de novo review in federal court after a complaint has been pending before the DOL for more than 180 days without a final decision. “De novo” review essentially means that a SOX whistleblower has an unwavering right to start afresh in district court, and the presiding judge should not defer to OSHA’s findings or to the ALJ’s rulings.  Stone v. Instrumentation Lab. Co., 591 F.3d 239 (4th Cir. 2009).

Once OSHA completes its investigation, the whistleblower or the respondent (the former employer) may request a hearing before an ALJ at the Department of Labor.  The hearing before the ALJ is de novo, i.e., the ALJ does not defer to OSHA’s findings.

Once the ALJ has issued an opinion, either party can request an appeal before the Administrative Review Board.  And an ARB decision can be appealed to a federal court of appeals.

Recent SOX jury verdicts suggest that SOX is a robust remedy to combat retaliation:

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

• Jury Awards Former Bio-Rad Counsel $11M in Sarbanes-Oxley Whistleblower Case
• Jury Awards Six Million Dollars to Whistleblower in Sarbanes-Oxley Case
• Sarbanes-Oxley Whistleblower Recovers Nearly $5 Million
• JP Morgan SOX Whistleblower Wins $1.13M at Trial

SOX “Kick-Out” Provision

Commonly referred to as the “kick out” provision, SOX allows a
complainant to seek relief from a U.S. District Court only when the DOL has not issued a final decision within 180 days after the filing of an administrative complaint.  The statute states that “if the Secretary has not issued a final decision within 180 days of the filing of the complaint and there is no showing that such delay is due to the bad faith of the claimant, bringing an action at law or equity for de novo review in the appropriate district court of the United States, which shall have jurisdiction over such an action without regard to the amount in controversy.” 18 U.S.C. § 1514A(b)(1).

Only after the 180–day waiting period do federal courts have jurisdiction over SOX whistleblower claims. See Candler v. URS Corp., 2013 U.S. Dist. LEXIS 137757, at *7 (N.D. Tex. Sept. 25, 2012) (explaining the plain language of the kick–out provision “reveals that a federal court can assert jurisdiction under SOX only ‘if’ two pre–conditions are met,” namely that OSHA has not issued a final decision within 180 days of the filing of the administrative complaint and that the delay was not caused by the complainant’s bad faith).

Damages SOX Whistleblowers Can Recover

Retaliation Prohibited by the Sarbanes-Oxley Whistleblower Protection Law

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 obtained settlements in excess of one million dollars in at least six 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.

De Novo Review in Federal Court

Once a whistleblower retaliation case is removed by the plaintiff from the DOL OALJ to federal court, “nothing in the statute limits a party’s right to obtain discovery . . .  or restricts the Court to the record developed at the administrative level.” Chad Bertrang v. Wisconsin Central, Ltd., 2014 WL 12939908 (April 14, 2014).

Top-Rated 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 the 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.

Whistleblower Protections for SEC Whistleblowers 

Client Reviews of SOX Whistleblower Law Firm

• “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.”