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Practices Practices Section

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Whistleblowing & Retaliation

Overview Press Room

Overview

The whistleblower landscape has undergone dramatic changes and the corresponding risks for employers have risen substantially. Employee whistleblower claims pose unusually high reputational risks to employers because such claims are often brought by higher-level employees and implicate critical, corporate compliance issues and highly sensitive information. Our Whistleblowing & Retaliation Group takes a multi-disciplinary approach to defending whistleblower litigation domestically and internationally by drawing on the experience of lawyers from across our Labor & Employment Law, Litigation, Corporate, Health Care and Tax Departments to bring employers a unique blend of skills to address all of their needs in this area. Members of our team have held important government roles including: U.S. Attorney in New Jersey and Southern Illinois; Massachusetts Attorney General; Deputy Assistant Attorney General of the Department of Justice Criminal Division; Deputy Attorney General in the New York Attorney General’s Office; Chief of the Major Crimes Unit in the U.S. Attorney’s Office for the Southern District of New York; General Counsel of the SEC; Chief Enforcement Director, Mid-Atlantic States, of the SEC; Assistant Enforcement Director in the SEC’s Los Angeles Regional Office; and Deputy Chief of the Felony Trial Division of the U.S. Attorney’s Office for the District of Columbia. Plus, our experience spans a broad range of industries (e.g., financial services, healthcare and accounting).

Whistleblower claims under statutes such as Section 806 of the Sarbanes-Oxley Act of 2002 ("SOX") are being filed routinely, and whistleblower claims under the Dodd-Frank Wall Street Reform and Consumer Protection Act ("Dodd-Frank") anti-retaliation provision are on the rise. At the same time, employees are starting to bypass internal compliance systems and heading directly to the Securities and Exchange Commission ("SEC") in hopes of recovering potentially significant bounties available under Dodd-Frank. Employees also are beginning to seek bounties under other laws, such as the IRS Whistleblower Law, with greater frequency. In addition, qui tam claims under the False Claims Act remain constant.

The reach of whistleblower claims has expanded as well, as employees are continuing to lodge such claims based on alleged conduct that has occurred overseas. In fact, claims under Dodd-Frank and SOX are beginning to involve alleged violations of the Foreign Corrupt Practices Act. Plus, a number of countries have enacted complex whistleblower-protection laws, such as the UK's Public Interest Disclosure Act, the UK Bribery Act and Article 1161-1 of the French Labor Code, which vary in material respects from U.S. laws.

Areas of Focus

  • Litigating before federal and state courts and the U.S. Department of Labor ("DOL")
  • Developing codes of conduct, whistleblower protection policies, and policies designed to encourage employees to use internal channels for lodging complaints
  • Auditing and strengthening compliance programs, including implementation of processes specifically focused on minimizing the risk of whistleblower claims and developing defenses where litigation is unavoidable
  • Conducting internal investigations into whistleblower retaliation reports and into allegations of misconduct made by whistleblowers 
  • Representing companies and individuals before the Department of Justice and the Securities and Exchange Commission in connection with investigations prompted by whistleblower reports
  • Developing remedial measures in response to whistleblower claims implicating meritorious compliance concerns
  • Training in-house legal, compliance and human resources professionals, as well as managers