Minimizing Corporate Liability Exposure When the Whistle Blows in the Post Sarbanes-Oxley Era

Over the past few years, numerous newspapers and magazines have featured stories discussing whistleblowers. From Sherron Watkins at Enron to Cynthia Cooper at Worldcom, employees who reported perceived corporate fraud have received widespread attention. With this increased public focus, Congress chose to provide statutory protection in the whistleblower corporate or securities law context through enactment of the Sarbanes-Oxley Act of 2002 (SOX). Prior to SOX, federal and state statutes (as well as common law) existed to protect whistleblowers in specific settings. For example, the False Claims Act provides protection to individuals who report fraudulent activities committed against the federal government. States likewise provide some degree of whistleblower protection, but each state's laws can vary regarding the persons protected, the procedural requirements for establishing the existence of retaliation, the type of evidence required to prove retaliation, and the available remedies. In part to eliminate the "patchwork and vagaries of current state [whistleblower] laws," Congress enacted SOX. For attorneys who provide legal counsel to corporations, the contours of the SOX whistleblower provisions merit exploration. In-house as well as outside lawyers must understand the complexities implicated to advise their clients to minimize potentially massive liability exposure