On February 21, 2018, the United States Surpreme Court ruled 9-0 in Digital Realty Trust v. Somers that whistleblowers cannot bring a claim under the Dodd Frank Act if they did not notify the Securities and Exchange Commission in writing. While this is considered a blow to protect whistleblowers, there are still three different ways for an New Jersey employee of a publicly traded company to vindicate their rights.
First, a case can still be filed under the Sarbanes Oxley Act as long as an administrative complaint is filed within 180 days of awareness of retaliation. Then, after 180 days has passed and OSHA has not addressed the complaint (which is common), the whistleblower has a choice of either bringing a federal court action or taking the matter to an administrative tribunal. Under Sarbanes Oxley ('SOX"), a whistleblower who prevails can collect lost earnings, compensatory damages, punitive damages if appropriate proofs are submitted and attorneys fees. And unlike Dodd Frank, an employer cannot compel arbitation of the claim.
Second, a New Jersey whistleblower an bring a lawsuit under the New Jersey Conscientious Employee Protection Act but must do so within one year of the effect of the retaliatory act. Like SOX, a prevailing whistleblower can collect lost earnings, compensatory damages, punitve damages if appropriate proofs are submitted and attorney's fees. The third way to vindciate a whistleblower's claim is filing a breach of contract claim under the employer's Code of Ethics. All publicly traded companies must adopt, distribute and implement a Code of Ethics as requiried by the stock exchanges where the company trades. Our firm just obtained a ruling from New Jersey Superior Court to that effect despite the presence of a written disclaimer in the Code of Ethics that said that no contract was created by the Code. The statute of limiitations is six (6) years for this claim and a whistleblower can only collect lost earnings. If the case is litigated in New Jersey state court, then attorney's fees may be awarded provided that a procedurual maneuver is utilized as allowed under New Jersey court rules.
If you believe that you have been retaliated against because you are a whistleblower, please give us a call at (973) 695-7777 or email us in the box to the right of this blog.