Challenges to California’s Board Diversity StatutesBuilding on board gender diversity requirements, California passed Assembly Bill (AB) 979 in 2020. This statute requires publicly held corporations headquartered in California to diversify their boards of directors with directors from “underrepresented communities,” specifically those individuals who self-identify as Black, African American, Hispanic, Latino, Asian, Pacific Islander, Native American, Native Hawaiian, or Alaska Native,... Continue ReadingMarch 17, 2022 |
U.S. Supreme Declines to Resolve Circuit Split on False Claims Act Anti-Retaliation ProvisionsThe U.S. Supreme Court has declined to settle a split among federal appeal courts on whether former employees are covered by whistleblower anti-retaliation protections contained in the False Claims Act (FCA). United States ex rel. David Felten v. William Beaumont Hosp., 993 F.3d 428 (6th Cir. 2021), cert. denied, No. 21-443 (U.S. Jan. 24, 2022).... Continue ReadingMarch 7, 2022 |
Fifth Circuit Cases Underscore Need for Attention to Detail in Arbitration Agreements Covering Whistleblower ClaimsIn the last ten years alone, SCOTUS and Circuit Courts have shaped the way employers craft and use arbitration agreements with their workforce, and the trend shows no sign of slowing down. In the last few months, recent court decisions have reinforced the notion that employers must always be vigilant and review their agreements to... Continue ReadingMarch 7, 2022 |
Blowing The Whistle May Not Act As A Shield: The Consequences of MisconductThat an employee may have engaged in protected activity under The Sarbanes-Oxley Act (“SOX”) does not render their employer unable to address the employee’s subsequent misconduct or other inappropriate behavior. Employers retain the ability to take adverse employment action for legitimate reasons unrelated to an employee’s arguably protected activity under SOX. Mere protected activity, by... Continue ReadingFebruary 11, 2022 |
Diversity, Inclusion & Equity Training for Boards – Not Just a Compliance Exercise“The most powerful leadership tool you have is your own personal example.” John Wooden Boards play a pivotal role in establishing an organization that champions, highlights, and capitalizes on diversity, inclusion and equity. Boards must be mindful of how they present themselves. The growing climate of intolerance that has come to light over the last... Continue ReadingJanuary 21, 2022 |
Expanded Protections For Whistleblowers Require Strong Commitment to Compliance ProgramsWith so much happening during the holidays, who wants to think about preventive steps and corporate compliance? Unfortunately, expansion of New York’s “whistleblower protection” laws coupled with the ongoing pandemic-related return to work issues make it increasingly critical for employers to ring in the New Year with an understanding of these new developments. High on... Continue ReadingDecember 16, 2021 |
SEC Reports Significant Increases In FY2021 Whistleblower ProgramFiscal Year 2021 was a record year for the Whistleblower Program (the “Program”) of the U.S. Securities and Exchange Commission (the “SEC” or the “Commission”). The Commission released its 2021 Annual Report to Congress (the “Report”) last Monday and it reflects substantial increases in many different metrics. The Program has already awarded more than $1.1... Continue ReadingNovember 19, 2021 |
SCOTUS Declines to Decide Whether Objective Falsity is Required to Establish Liability Under FCAThe question of whether the False Claims Act (FCA) requires a showing of objective falsity will continue to divide the circuit courts following the U.S. Supreme Court’s decision not to address the issue. To establish liability under the FCA, which prohibits the defrauding of the government, an individual must demonstrate actual knowledge that the claim...… Continue ReadingMarch 19, 2021 |
California Requires Board Diversity and Additional Company DisclosuresOn September 30, 2020, California Governor Gavin Newsom signed a bill into law requiring publicly held corporations to further diversify their boards of directors. He also signed a bill requiring that corporations and limited liability companies make additional disclosures. Assembly Bill 979 (AB 979) adds Section 301.4 to the California Corporations Code. This Section requires...… Continue ReadingOctober 31, 2020 |
SEC Adopts Amendments to Whistleblower Program RulesThe Securities and Exchange Commission has voted to adopt numerous amendments to the rules governing its whistleblower program. See https://www.sec.gov/news/press-release/2020-219 The whistleblower program serves as a significant tool for the Commission to encourage individuals to come forward with information regarding suspected security fraud. As set forth in the SEC’s press release, “The amendments to the...… Continue ReadingOctober 7, 2020 |
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