News Archives - Page 11 of 47

SCOTUS case will determine how much the law guards Sarbanes-Oxley Act whistleblowers

Jul 30 2023

The U.S. Supreme Court soon will take up an appeal that will decide a crucial issue for whistleblowers.

The issue to be decided: How carefully will courts guard whistleblowers against retaliation?

The justices take up the question during the upcoming term, which starts in October.

The case involves Trevor Murray, who started work for UBS Securities in April 2011, the only research strategist for the company’s commercial mortgage-backed securities (CMBS) arm. Federal regulations dictate that such researchers come up with independent opinions, but Murray repeatedly was pressured to publish notes slanted in favor of his company’s strategies.

In December 2011, Murray reported the situation to his boss — twice — calling it unethical and illegal. Still, he received a positive annual performance review. Then, in early February 2012, he was fired.

Murray filed a whistleblower complaint under the Sarbanes-Oxley Act (SOX) in August 2012, suing in 2014. In court, UBS contended that it had fired Murray for financial reasons. The SOX prohibits publicly traded companies like UBS from retaliating against their employees for engaging in protected activity, such as reporting violations of federal securities laws.

The district court ruled in favor of Murray, but the appeals court reversed, saying Murray should have had to show that UBS’s actions were intended as retaliation — not just that his report and his firing were connected.

This is technical, but it’s huge.

“The … requirement that plaintiffs prove the defendant’s intent in order to receive these protections would discourage would-be whistleblowers from taking the significant risk of coming forward to report financial frauds,” The Anti-Fraud (TAF) Coalition wrote in an amicus brief. “Unless reversed, the decision will insulate financial misconduct from detection and prosecution. Investors, financial markets, and potentially our entire economic system will suffer the negative consequences.”

Indeed, the fallout of weaker whistleblower protections could be widespread.

Many will be watching this case; the intent interpretation differed from the rulings of four other federal appeals courts.

The lawyers at Keller Grover have three decades of experience representing whistleblowers and can advise potential whistleblowers about the best path forward from the very beginning, helping minimize the impact of reporting, protect their rights and achieve the best possible outcome. Keller Grover attorney Kate Scanlan is a member of TAF, which works to empower whistleblowers, and she chairs its Public Education Committee. If you have information about government fraud, contact us for a confidential, free consultation.

California Law’s ‘Lookback Window’ Gives Workplace Harassers Fewer Places to Hide

Jul 15 2023

A patchwork of laws during the past few years lays the groundwork for monetary relief for people who have suffered sexual assault, harassment and other types of discrimination.

The latest in California, what is sometimes referred to as a “lookback window,” opened a three-year period — from 2023 through Dec. 31, 2026 — for adults who allege sexual abuse by another adult to pursue civil litigation.

Importantly, this joins recent laws that ban confidentiality and non-disparagement clauses regarding harassment or discrimination (in severance and employment agreements) and prevent forced arbitration clauses when there are allegations of sexual assault or harassment.

Altogether, it means victims of sexual assault and harassment can have their days in court, despite prior legal hurdles such as statutes of limitations and clauses wrapped into employment contracts.

Among those now facing lawsuits under California’s new law: actor Bill Cosby, whom former Playboy model Victoria Valentino accused of sexual misconduct after they met at an audition in
1969, NBC News reported last month.

But let’s look at the specifics of Assembly Bill No. 2777, known as the Sexual Abuse and Cover Up Accountability Act — and particularly at aspects that could apply to the workplace.

The existing law limited time for civil lawsuits stemming from alleged sexual assault against adults to within 10 years from the date of the last act or attempt, or within three years from the
date the victim realized an injury or illness resulting from the act — whichever was later.

In a nutshell, the new law temporarily (through 2026) extends the statute of limitations on sexual assault, citing — among other things — how common it is, the emotional and psychological toll, and the difficulty of confronting a perpetrator.

“Moreover, when these data are combined with widespread news reports of major companies being accused of covering up sexual assaults by their employees, it is self-evident that statutes
of limitation for sexual assault need to be crafted in a way that does not cause the covering-up company to enjoy the fruits of their cover-up solely because our statutes of limitation permit, and
thus motivate, such behavior,” the law reads.

Key points:
● Victims now can pursue any claim seeking damages suffered because of a sexual assault that happened on or after Jan. 1, 2009, that would otherwise be barred solely because of the statute of limitations.
● If there was a coverup, the timeline isn’t limited, so long as allegations include sexual assault, name a specific legally responsible party(ies), and allege a coverup of prior sexual assault instances or allegations by the alleged perpetrator or agents of the perpetrator. Notably, the law specifies that a cover up can include use of nondisclosure or confidentiality agreements.
● Any claims related to an alleged sexual assault, such as wrongful termination and sexual harassment, also are revived.
● Exceptions: Claims that were litigated to finality or that reached written settlement agreements by Jan. 1, 2023, are not eligible. The law also specifies that it revives cases that would be barred solely because the statute of limitations had expired.
● Criminal prosecution or conviction is not required to pursue a civil case. A separate lookback window applying to people over 40 who suffered abuse in California as children closed at the end of last year, prompting a rush of lawsuit filings, according to a report in the Los Angeles Times. If you’ve been the victim of assault, harassment, discrimination, or retaliation in the workplace, don’t hesitate to seek legal advice. These violations are illegal and wrong, and we are passionate about advocating for victims. Start with a free consultation — the experienced employment lawyers at Keller Grover can help you understand your rights, protections, and options. In more than 25 years litigating fraud and employment cases, we have recovered hundreds of millions of dollars for clients and class members. Let us add you to that list.

Whistleblower cases can pit David versus Goliath — prepare yourself with the right strategy

Jul 15 2023

Whistleblower cases are complex, and they often pit laypeople — an everyday worker just trying to do the right thing — against well-heeled, powerful, experienced opponents. Several cases making headlines this year illustrate this scenario:

Large railroads, such as Norfolk Southern, Union Pacific and others, face questions about their safety procedures following accidents and hundreds of whistleblower complaints during the past five years.
A recently unsealed federal appeals court decision upheld dismissal of a whistleblower lawsuit against Johnson & Johnson because plaintiffs misused confidential records and tried to hide it.
A whistleblower received the SEC’s largest-ever award, $279 million, for information that the Wall Street Journal reported was connected to bribery allegations against telecommunications giant Ericsson that the company paid $1.1 billion to settle.

These examples range broadly, but a common theme remains: Whistleblowers should engage knowledgeable and experienced attorneys early — even before any action is taken. Such attorneys (we offer free, confidential consultations) can help you navigate or sidestep potentially thorny issues.

Although the government has limited resources to pursue whistleblower cases, which may take years, there are provisions for whistleblowers to pursue cases on behalf of the government. For the first time ever, last year the federal government recovered more from these non-intervened cases than the cases it initiates or joins — more than half of total recoveries of $1.2 billion in fiscal 2022. Keller Grover has experience working with government lawyers in these cases and has successfully represented clients in non-intervened cases.

A whistleblower’s most valuable ally in any whistleblower case is experienced attorneys representing them.

In a 2016 speech, then-SEC Enforcement Director Andrew Ceresney spoke to that very issue.

“One thing I get asked about a lot is how we view whistleblower counsel,” he said. “…We welcome the involvement of counsel in whistleblower tips. While whistleblowers can engage with us without the assistance of counsel, counsel experienced in whistleblower representations can help with up-front triage of tips to identify those that have a nexus with the federal securities laws and that may have merit. And they can work with whistleblowers going forward to identify information that will be important to us and that will allow us to advance our investigations.”

Keller Grover provides confidential, free consultations to advise those who have observed suspected wrongdoing and can help you determine the best path forward from the very beginning, helping you minimize the impact of reporting, protect your rights and achieve the best possible outcome for your situation.

SCOTUS Decision Underscores Why Whistleblowers Need Expert Advocates

Jun 29 2023

A longstanding but rarely tested corner of whistleblower law flew to the forefront this month in the form of a decision by the U.S. Supreme Court.

We get into the specifics below, but here’s the underlying lesson: In today’s legal environment, whistleblowers benefit greatly from retaining counsel with a thorough understanding of the law and a solid track record of communicating with the U.S. Department of Justice.

Understanding the decision requires a bit of background. We often help whistleblowers here at Keller Grover, so here’s a quick recap of the general process: Our lawyers help False Claims Act whistleblowers to confidentially alert the DOJ to alleged fraud against the government. The government prosecutes the case in court, and whistleblowers can get up to 30 percent of recouped funds.

But sometimes, the DOJ declines to pursue a case. In those instances, the whistleblowers (or “relators”) are free to proceed on behalf of the government with what’s known as a qui tam action. Notably, recoveries from these “non-intervened” FCA cases topped $1.2 billion in fiscal 2022, more than half of total recoveries.

So what’s the problem?

For a long time, if the government declined a case, it stayed out of the case. But in recent years, amendments have allowed the government to intervene later — even to the point of dismissing a case despite the objections of the whistleblower.

That’s exactly the situation that landed this question before SCOTUS. And, in an opinion released June 16, the court sided with the government, affirming its broad discretion to intervene later and dismiss a case, even if the whistleblower disagrees.

However — it’s important to note that this right is rarely exercised, and we don’t expect that to change following this decision. The decision wasn’t a complete surprise. Again, it simply underscores the need for expert counsel.

But it can be informative to understand the particulars. In the case at issue, a whistleblower named Jesse Polansky alleged that compliance solutions provider Executive Health Resources was helping its health care clients misclassify patient treatments in order to get higher Medicare reimbursements. After the government declined to intervene, Polansky filed a qui tam action. The case spent years in discovery; then the government decided that the burdens of the suit outweighed its potential benefits and filed for dismissal, which a District Court granted.

The Supreme Court opinion upheld lower court rulings that, as long as the government first moves to intervene in a case, then offers notice and an opportunity for a hearing, dismissal may take place.

“And here, the Government gave good grounds for thinking that this suit would not do what all qui tam actions are supposed to do: vindicate the Government’s interests,” the opinion syllabus stated. “Absent some extraordinary circumstance, that sort of showing is all that is needed for the Government to prevail on a motion to dismiss.”

That’s why communication must happen early and often. Counsel that has a firm grasp on whistleblower law and is skilled at communicating with the DOJ about its view of non-intervened cases can make a world of difference for whistleblowers.

Keller Grover attorney Kate Scanlan has been watching these issues closely; she’s a member of The Anti-Fraud (TAF) Coalition, which works to empower whistleblowers, and is chair of TAF’s Public Education Committee. We will continue to follow any further developments.

If you want advice about how to handle suspected fraud, contact Keller Grover for a free and confidential consultation. With our proven track record of advocating for whistleblowers, we can help you understand all your options, protections, and best next steps. In more than 25 years litigating fraud and employment cases, Keller Grover has recovered billions for its clients.

Is Your Employer Protecting You Against Rising Summer Temps? California Says It’s the Law

Jun 15 2023

As California marches into its hottest months of the year — accompanied by predictions of above-normal temperatures — people whose livelihoods happen outdoors face potentially life-threatening dangers from exposure to that heat.

Whether they’re harvesting produce, working in construction, or landscaping, California’s outdoor workers deserve basic protections from their employers.

The Golden State boasts some of the nation’s strongest heat laws; the state has been tweaking them over the past two decades, and it’s currently working on regulations about heat in indoor workplaces.

However, not all employers take seriously their responsibility to keep workers safe and well. For example, state law requires every employer of outdoor workers to share with employees a written heat-illness prevention plan. However, a Farmworker Health Study by the UC Merced Community and Labor Center, released earlier this year, found that 43 percent of surveyed workers reported never getting such a plan from their employer.

With climate change pushing temperatures ever higher, the urgency of protections under state law rises, as well. The National Weather Service’s Climate Prediction Center predicts above-normal temperatures in the western United States this June through August. California temperatures have been rising over the past century, particularly at night.

Basic worker protections under state law include very common-sense steps that apply to all outdoor places of employment. In addition to the written heat illness prevention plan, which must be available at all outdoor worksites, employers generally are required to provide water, rest, shade and training.

Here’s an explanation of each element:

Training: All employees and supervisors must receive training about heat illness prevention. That includes the risks, employer procedures and responsibilities, the importance of regular hydration, symptoms of heat illness, and how to respond to suspected heat illness.
Water: Employers must provide enough fresh, pure water so that each employee can drink at least 1 quart (four 8-ounce glasses) of water per hour for the duration of a shift. Notably, employers also must encourage workers to drink this much water, and the water must be suitably cool, near to the worksite, and free.
Shade: Anytime temperatures exceed 80 degrees, employers must make sure workers have easy access to shade, and they must encourage them to rest for at least five minutes in the shade anytime they feel the need to do so to prevent overheating. This must happen before any feelings of illness; if employees show signs of heat illness, they can’t be sent back to work until the symptoms have abated. In addition, the shaded areas must be either open to the air or ventilated/cooled, and they must be sufficient to allow all employees sufficient recovery periods while seated comfortably. Employees also should be monitored for signs of heat illness and provided with appropriate aid if necessary. Even when temperatures are below 80 degrees, shade must be available and provided upon request.
Planning: Every employer is to develop and act upon written procedures that align with the Cal/OSHA Heat Illness Prevention Standard. The plan must be available in writing — in both English and any other primary language spoken by most employees — at outdoor worksites.

California law includes other protections as well, such as specific supervisory procedures and a minimum 10-minute cool-down rest period every two hours when temperatures top 95 degrees.

Is your employer taking the required steps to protect you from the heat? If not, Keller Grover can help. We provide confidential, free consultations to advise those who have been mistreated by employers, and we can aid you in determining the best path forward, helping you minimize the impact of reporting, protect your rights and achieve the best possible outcome for your situation.