Reimagining Financial Whistleblower Protection: A Proposal for Stronger Protection Under the Sarbanes-Oxley Act

Authors

Matthew J. Gilligan

Abstract

Whistleblowers occupy a unique place in American society. They operate in nearly every sphere of modern life, exposing unlawful conduct by financial institutions, technology companies, and government entities, just to name a few. When whistleblowers encounter retaliatory behavior, they are faced with an uphill battle to hold their employer accountable. This note discusses the circuit split regarding whistleblower protections under the Sarbanes-Oxley Act, which was recently granted cert by the US Supreme Court. Until recently, no circuit required whistleblowers suing their employers for engaging in retaliatory behavior to show that the employer acted with retaliatory intent. The Second Circuit broke from this consensus, requiring a showing of retaliatory intent and making it more difficult for whistleblowers to hold their employers accountable. This note proposes changes to Sarbanes-Oxley’s whistleblower protections using the Whistleblower Protection Act, which employs broader and more concrete language in defining the standard for showing that an employer engaged in retaliation. It proposes both broadening Sarbanes-Oxley’s list of prohibited conduct and adding more concrete language to guide courts in determining whether an employer used an employee’s protected whistleblowing conduct in making an adverse employment decision. In doing so, this note paves a path more straightforward than a 2024 Supreme Court decision will likely be able to accomplish.

Recommended Citation

Matthew J. Gilligan, Reimagining Financial Whistleblower Protection: A Proposal for Stronger Protection Under the Sarbanes-Oxley Act, 88 Brook. L. Rev. 1423 (2023).
Available at: https://brooklynworks.brooklaw.edu/blr/vol88/iss4/9