The high-profile November 18, 2018 arrest in Japan of Carlos Ghosn, the Chairman and former CEO of Nissan (and of several other car companies) on charges of misleading the Japanese government and investors about his compensation made the front pages of the world’s papers. Continuing revelations, including the recent indictment of Ghosn and other company executive, continue to roil the company. On December 11, 2018, an institutional investor and holder of U.S.-traded Nissan ADR’s initiated a securities class action lawsuit against the company. The lawsuit is interesting in and of itself but also with respect to how it reflects several recent securities litigation filing trends.
Continue Reading Nissan Chairman’s Arrest and Pay Disclosure Leads to U.S. Securities Suit
U.S. Supreme Court Adopts Narrow View of Who Can Rely on Dodd-Frank Act’s Anti-Retaliation Protections
The U.S. Supreme Court ruled on February 21, 2018 that the Dodd-Frank Act’s anti-retaliation provisions protect only whistleblowers that make a report to the SEC, and do not apply to whistleblowers who report internally. The Court’s ruling, which resolved a circuit split on the question of who was entitled to the Act’s provisions, will significant limit the scope of the anti-retaliation protections. The Court’s February 21, 2018 opinion in Digital Realty Trust, Inc. v. Somers can be found here.
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Enron’s Legacies, a Decade and a Half Later
Fifteen years ago this month, the once high-flying energy company Enron completed its massive collapse when it filed a petition for bankruptcy protection. In his interesting December 2, 2016 post on the Harvard Law School Forum on Corporate Governance and Financial Regulation (here), Michael Peregrine of the McDermott, Will & Emery law firm takes a retrospective look at Enron’s downfall and suggests a number of different ways that those events have continuing relevance. As I discuss further below, there are, in addition to the considerations Peregrine notes, a number of other continuing legacies of Enron.
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The SEC Wants You to Know that It Intends to Protect Whistleblowers’ Rights
The SEC has long made it clear that it intends to protect whistleblowers and to suppress activities it believes will have the effect of discouraging whistleblower activity. The agency recently launched enforcement actions against companies that had incorporated various waivers in employee severance agreements that discouraged employees from reporting possible securities law violations to the SEC. The agency’s actions shows that the agency is prepared to actively target corporate actions the agency believe may suppress the whistleblowing process.
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Thinking About the Applicability of SOX Whistleblower Protection to Private Company Employees
Since their 2002 enactment, the whistleblower protections in Section 806 of the Sarbanes-Oxley Act have been presumed to apply only to employees of publicly traded companies. After all, the provisions are entitled “Protection for Employees of Publicly Traded Companies Who Provide Evidence of Fraud.” However, in its March 4, 2014 holding in Lawson v. FMR,
SEC Releases Fiscal 2013 Whistleblower Report
Whistleblower reports to the SEC continued to rise during the latest fiscal year, according to the agency’s annual Dodd-Frank Whistleblower Program report to Congress. According to the November 15, 2013 report, a copy of which can be found here, there were 3,238 whistleblower reports to the SEC during the 2013 fiscal year, brining the
Whistleblower Report Follow-On Securities Suit: We’ll Be Seeing More of These
On October 30, 2013, the SEC announced another whistleblower bounty award under the Dodd-Frank whistleblower program. Although the size of this latest award ($150,000) is relatively modest compared to the recent $14 million award (about which refer here), the most recent award does suggest that awards under the whistleblower program are gaining momentum.
Has the Whistleblower Moment Arrived? SEC Awards Whistleblower More Than $14 Million
It is not the first whistleblower award under the Dodd Frank Act’s whistleblower bounty program but the “more than $14 million” award to an anonymous whistleblower that the SEC announced on October 1, 2013 is by far the largest so far. The size of the award raises the question of what the award may
Will Obstacles Deter the SEC’s Dodd-Frank Whistleblower Program?
Whistleblower information may be one of the SEC’s “most effective weapons in its new enforcement arsenal,” but the agency’s whistleblower program “faces challenges on many fronts,” according to an April 23, 2013 New York Times Dealbook article entitled “Hazy Future for Thriving S.E.C. Whistle-Blower Effort” (here). As evidence of the whistleblower program’s promise
BNY Mellon Hit with Securities Suit Following Whistleblower Allegations
With the implementation of potentially rich whistleblower bounties under the Dodd-Frank Act, there have been concerns that the incentives will not only lead to increased numbers of reports and increased enforcement activity, but that the regulatory action will in turn generate follow-on civil litigation. A securities class action lawsuit filed this past week against Bank