In a major setback for whistleblowers, a panel of the Ninth Circuit U.S. Court of Appeals has decided that going to the media can never be protected activity under the Sarbanes-Oxley Act (SOX).

The decision, issued in the case of Tides v. Boeing Corporation, upheld the firing of two Boeing employees, Nicholas P. Tides

The Ninth Circuit Court of Appeals has scheduled oral argument in a case that will decide if disclosures to the media can be protected under the Sarbanes-Oxley Act (SOX). The oral argument will be on Friday, April 15, 2011, at the William K. Nakamura U.S. Courthouse,
1010 Fifth Avenue, 7th Floor, Courtroom #2, in Seattle

On behalf of the National Whistleblowers Center (NWC), David Colapinto and I filed a friend-of-the-court brief last week arguing that the Sarbanes-Oxley Act (SOX) can protect corporate whistleblowers who make disclosures through the media. We filed the brief with the U.S. Court of Appeals for the Ninth Circuit in the case of Tides v. The Boeing Company, Case No. 10-35238. The brief examines the history of how whistleblowers have used the public attention of the media to spur government action on matters of public concern. In the 1970’s, Congress began enacting statutes to protect whistleblowers. Courts and the Department of Labor quickly recognized that when whistleblowers use media outlets to raise their safety concerns, their use of the media can and should be protected. It is now one of the recognized ways in which whistleblowers can “cause” information to be disclosed to law enforcement agencies and others who can correct violations or set enforcement policy. This case law was well developed when Congress enacted SOX in 2002, and is fully consistent with the legislative purposes behind SOX.
Continue Reading NWC files brief arguing that SOX protects disclosures to the media

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The Ninth Circuit U.S. Court of Appeals reinstated a Sarbanes-Oxley case and made some helpful comments about SOX. In a decision issued last month, the Court reversed a dismissal by a Nevada magistrate judge and sent the case back so Lena and Shawn Van Asdale can have their day in court. "The success, or failure, of the Van Asdales’ lawsuit does not depend on their ability to show any actual fraud, only that they reasonably believed that fraud had occurred," the Court says.  Here, here. "An employee need not cite a code section he believes was violated," the opinion adds. The case is Van Asdale v. Int’l Game Technology, ___ F.3d. ___, No. 07-16597 (9th Cir. Aug. 13, 2009).Continue Reading Ninth Circuit rules for SOX whistleblower