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Mutual fund workers denied whistleblower coverage

1st Circuit overturns federal judge’s decision to apply SOX provisions to private companies advising public companies

It took a decade, but an appeals court finally ruled on whether Sarbanes-Oxley Act (SOX) provisions can apply to employees of private contractors.

The 1st Circuit last Friday issued its ruling in Lawson et al v. FMR et al, finding that the law protecting whistleblowers at publicly traded companies does not extend to mutual fund employees.

The plaintiffs—a pair of Fidelity Investments employees, Jackie Hosang Lawson and Jonathan Zang—complained that they notified their supervisors about a number of problems at the company. Lawson blew the whistle on an alleged improper retention of $10 million of fees and, as a result, was passed over for promotion and threatened with punishment for insubordination. Similarly, Zang claimed he received negative reviews and that Fidelity terminated him in retaliation for calling attention to a new payment plan for portfolio managers that was both inaccurate and illegal.

The mutual fund company countered by claiming the plaintiffs worked for affiliate company Fidelity Management & Research, which wasn’t a public company and, therefore, wasn’t covered under SOX. The district court concluded that SOX’s whistleblower protection provision within section 806 extended beyond employees of public companies to encompass those of private companies that are contractors or subcontractors of those public companies.

The circuit court, however, reversed this decision.

“The broader reading of § 1514A(a) offered by plaintiffs would provide an impermissible end run around Congress's choice to limit whistleblower protection in that subsection to the employees of two categories of companies the title and caption call ‘publicly traded companies,’" Chief Judge Sandra Lynch wrote in her opinion.

While Lynch noted that other whistleblower statutes in the Energy Reorganization and Pipeline Safety Improvement Acts specifically extend coverage to contractors, she said that her hands were tied because of how the law was written.

“If we are wrong and Congress intended the term ‘employee’ in  §  1514A(a) to  have  a  broader  meaning  than  the  one  we  have arrived  at,  it  can  amend  the  statute,” Lynch wrote. “We are bound by what Congress has written.”

For more on the 1st Circuit’s decision, read Reuters.

To read more about SOX’s impact on the past decade, click here.

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