SOX, Statutory Interpretation, and the Seventh Amendment: Sarbanes-Oxley Act Whistleblower Claims and Jury Trials

Abstract:     
Section 806 of the Sarbanes-Oxley Act of 2002 prohibits a publicly-traded company from retaliating against an employee whistleblower who reports suspected corporate fraud to a company supervisor or to a governmental entity. The SOX whistleblower provision is unique in employment discrimination law in that Congress adopted a two-track civil enforcement system for whistleblowers. A complainant must initially pursue a claim in a Department of Labor administrative proceeding. The administrative proceeding entails a trial-like hearing before an administrative law judge and review of the judge's decision by the Administrative Review Board. However, if the Department of Labor does not make a final decision on the claim within 180 days, the complainant may elect to file a de novo case in federal district court.

Although SOX provides for a private right of action to be brought in federal district court if the 180-day deadline is not satisfied, the statute does not explicitly state whether a jury-trial right attaches to such actions. My article entitled "SOX, Statutory Interpretation, and the Seventh Amendment: Sarbanes-Oxley Act Whistleblower Claims and Jury Trials" argues that the statute should be interpreted to imply a jury right for certain SOX actions in federal district court. If the courts do not imply the right, I contend the Seventh Amendment guarantees a jury trial in certain SOX actions.

The jury trial question in the SOX whistleblower provision is an issue that has already been raised in several cases. To my knowledge, this piece is the first scholarly article to address the question and thus one which should be of interest to labor and employment scholars, labor and employment attorneys, federal judges, and others.

Number of Pages in PDF File: 61

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