Jottings By An Employer's Lawyer

Thursday, February 19, 2004

Pro Se Sarbanes Oxley Claimant Prevails Before ALJ

Although many, including me, had anticipated that precious few Sarbanes Oxley claims would ultimately be heard by ALJ's because of the option for plaintiffs to opt to go to federal court after 180 days, a record of plaintiff successes before ALJ's may change that perception. In this case, a pro se research analyst, Margot Getman, convinced the ALJ that she had been terminated in violation of Sarbanes Oxley. Getman v. Southwest Securities, Inc.2003-SOX-8 (ALJ 2/2/04). According to the ALJ, "The strongest support for Complainant's claim that her protected activity was the proximate cause of her termination is Respondent's general dishonesty regarding a number of the key issues found in this matter." (emphasis added) Among the issues were back dated documentation of her performance, which apparently was not disclosed to the OSHA investigator and a misstatement of the reason for her termination on the required U-5. An act the employer characterized as charitable in nature to her, and the ALJ found to be an admission of intentional submission of inaccurate documents to securities regulators and a possible violation of securities laws. Ouch!

Although the decision has apparently escaped the commercial press, today's Daily Labor Report (BNA, paid subscription required) picked it up. Although no doubt Getman is basking in the award of approximately $175,000, I would assume her claim against the Dallas based firm will still be subjected to review by both the Administrative Review Board, and ultimately the 5th Circuit. The 'whistleblowing' in this case seems somewhat novel, as it is based on a stock report that ended up never being published, because of the rating that she gave the stock. Given the strong anti-credibility findings of the ALJ, my guess is that the appeals will focus on whether or not the act was in fact the type of activity protected by Sarbanes-Oxley.

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