Is a Sarbanes-Oxley Whistleblower Required to Prove Pretext?
A SOX whistleblower is not required to disprove the employer’s allegedly legitimate, non-retaliatory reason for taking an adverse employment action.[i] But proof of pretext can prove causation. As the ARB observed in Palmer, “Indeed, at times, the factfinder’s belief that an employer’s claimed reasons are false can be precisely what makes the factfinder believe that protected activity was the real reason.”[ii]
[i] Zinn v. American Commercial Lines, Inc., ARB No. 10-029, ALJ No. 2009-SOX-025, 2012 WL 1143309, *7 (ARB Mar. 28, 2012); Warren v. Custom Organics, ARB No. 10-092, ALJ No. 2009-STA-030, 2012 WL 759335, *5 (ARB Feb. 29, 2012); Klopfenstein v. PCC Flow Tech., Inc., ARB No. 04-149, ALJ No. 04-SOX-11, 2006 WL 3246904, *13 (ARB May 31, 2006).
[ii] Palmer, ARB No. 16-035 at 54 (citations omitted).
Zuckerman Law Amicus Curiae Brief Filed on Behalf of Senator Wyden and Representative Speier Clarifying the Contributing Factor Causation Standard
In July 2021, whistleblower protection law firm Zuckerman Law filed this amicus curiae brief in the Second Circuit concerning the appropriate causation standard under federal whistleblower protection laws.
AMICUS CURIAE BRIEF OF SENATOR RON WYDEN AND REPRESENTATIVE JACKIE SPEIER AND IN SUPPORT OF THE PLAINTIFF-APPELLEE-CROSS-APPELLANTSarbanes-Oxley (SOX) Whistleblower Anti-Retaliation Law
The whistleblower protection provision of the Sarbanes-Oxley Act provides robust protection to corporate whistleblowers, and indeed some SOX whistleblowers have achieved substantial recoveries. Leading whistleblower law firm Zuckerman Law has released a guide to the SOX whistleblower protection law: Sarbanes-Oxley Whistleblower Protection: Robust Protection for Corporate Whistleblowers. The guide summarizes SOX whistleblower protections and offers concrete tips for corporate whistleblowers based on lessons learned during years of litigating SOX whistleblower cases.
