By Stephen Kohn
The National Whistleblower Center has filed a “friend of the court” brief urging the United States Supreme Court to accept review of, and reverse, the First Circuit’s decision in Lawson v. FMR. I wrote here previously about the two-judge majority in the First Circuit had terribly misconstrued the Sarbanes-Oxley Act (SOX) to deny protection to the employees of contractors of publicly traded companies. I also wrote about how the Department of Labor’s Administrative Review Board (ARB) had rejected the Lawson decision and announced that it would not follow it outside the First Circuit. Spinner v. David Landau and Associates, LLC, ARB Nos. 10-111 and -115, ALJ No. 2010-SOX-29 (ARB May 31, 2012). Now that Jackie Lawson and Jonathan Zang have appealed to the Supreme Court, the National Whistleblowers Center (NWC) is supporting them in urging the Supreme Court to accept the case and reverse the First Circuit decision.
The NWC amicus brief argues that the First Circuit decision opens a huge loophole that prevents SOX from achieving its remedial purpose of protecting all employees when they raise concerns about corporate frauds and other violations of securities laws and regulations. We also note how in a prevision example of a circuit court of appeals rejecting Department of Labor policy, it took that court (the Fifth Circuit) twenty-one (21) years to finally recognize its error. Corporate fraud whistleblowers cannot wait that long for the First Circuit to realize its error. The American people have already waited too long to have a public stock market with the integrity that comes from protecting employees who speak up about misconduct. We expect the Supreme Court to announce someday this Fall if they will ask the federal government to express a position on this appeal, and then whether to accept the appeal for full briefing and consideration on the merits.