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Corporate Whistleblowing in the Coronavirus Era 2020


Speaker(s): Arian M. June, Christopher Ehrman, Debra S. Katz, Jane Norberg, Jason Zuckerman, Jordan A. Thomas, Renee B. Phillips, Sarah E. Bouchard, Sarah K. Marcus, Steven J. Pearlman, Teri M. Wigger, Thad M. Guyer
Recorded on: Jul. 13, 2020
PLI Program #: 277015

Christopher Ehrman is the Director of the Whistleblower Office at the Commodity Futures Trading Commission.  Section 748 of the Dodd-Frank Wall Street Reform and Consumer Protection Act established a whistleblower program under which the CFTC will pay awards, based on collected monetary sanctions, to eligible whistleblowers who voluntarily provide original information about violations of the Commodity Exchange Act that lead either to a “covered judicial or administrative action” or a “related action.”

Mr. Ehrman formerly served as an Assistant Director in the Office of Market Intelligence at the Securities and Exchange Commission. In that role, he oversaw the processing, review and assignment of all tips, complaints and referrals received by the SEC.  Mr. Ehrman also formerly served as the Co-National Coordinator for the Microcap Fraud Working Group, a cross-divisional specialized group charged with creating novel ways to detect, disrupt and prosecute fraud relating to securities quoted on the OTC Market.  Prior to joining OMI, Mr. Ehrman worked in a variety of other roles within the SEC’s Division of Enforcement, including Branch Chief, Senior Counsel, and Staff Attorney.

Mr. Ehrman is a graduate of Miami University and the University of Kentucky College of Law.


Debra Katz is a founding partner of Katz, Marshall & Banks, LLP, where she concentrates her practice on employment discrimination, sexual harassment, whistleblower, and Title IX matters.  She has developed extensive litigation experience in federal and local courts and has achieved significant courtroom successes in a number of high-profile cases. She has been recognized as "Civil Rights Lawyer of the Year" for Washington, D.C. by The Best Lawyers© In America for 2018, and as a “Titan of the Plaintiffs Bar” by Law360. Ms. Katz has also been called “The feared attorney of the #MeToo moment” by the Washington Post, and a “Leading #MeToo Lawyer” by Washingtonian magazine.


Jane Norberg is a Partner in the Securities Enforcement & Litigation Practice at Arnold & Porter.  Jane brings to her practice extensive experience as Chief of the Office of the Whistleblower of the Securities and Exchange Commission, having helped build and develop the SEC’s whistleblower program since near its inception.  Under Jane’s leadership, the SEC received record numbers of whistleblower tips and paid out record breaking awards.

Jane’s practice at Arnold & Porter focuses on advising clients on all aspects of whistleblower matters. This includes helping companies navigate complexities related to whistleblower reports and issues of all kinds; counseling companies on best practices for handling internal whistleblower reports; proactively assessing and mitigating risk; conferring with respect to emerging whistleblower issues; internal and external investigations; advising on best practices related to retaliation and impeding reporting to regulators; assisting the company in its response and defense to specific whistleblower allegations; and providing crisis management to mitigate reputational risk.

During her tenure at SEC, Jane advised the SEC Chairman and the Director of the Division of Enforcement on emerging whistleblower issues and the development of rulemaking and policies, as well as reported to Congress regarding the program’s activities and advised them on whistleblower matters. She joined the Securities and Exchange Commission in 2012 as Deputy Chief of the Office and was appointed to Chief in 2016.

Under her leadership, Jane managed an expansion of the Office’s staff and oversaw a record-breaking growth in the number of whistleblower tips received and awards issued to whistleblowers under the program. Jane has extensive experience and knowledge regarding whistleblower retaliation and agreements that impede reporting in violation of Exchange Act Rule 21F-17, having directly advised on all whistleblower protection cases brought by the SEC during her tenure. Jane had a substantial advisory role related to the amendments to the SEC’s whistleblower rules, and has conferred with and advised other domestic and international regulators related to the development of new whistleblower programs.  Jane also co-led a diversity and inclusion initiative across the SEC Division of Enforcement.

Jane is a sought after speaker and subject matter expert with respect to whistleblower-related issues and speaks regularly on the topic.

 


Jordan A. Thomas concentrates his practice on investigating and prosecuting securities fraud on behalf of whistleblowers and institutional clients. As Chair of the Firm's Whistleblower Representation practice, Jordan protects and advocates for whistleblowers throughout the world who have information about possible violations of the federal securities laws. He created, and serves as the editor for, www.secwhistlebloweradvocate.com, a website dedicated to helping responsible organizations establish a culture of integrity and courageous whistleblowers to report possible securities violations-without personal or professional regrets.

A longtime public servant and seasoned trial lawyer, Jordan joined Labaton Sucharow from the Securities and Exchange Commission where he served as an Assistant Director and, previously, as an Assistant Chief Litigation Counsel in the Division of Enforcement. He had a leadership role in the development of the SEC Whistleblower Program, including leading fact-finding visits to other federal agencies with whistleblower programs, drafting the proposed legislation and implementing rules and briefing House and Senate staffs on the proposed legislation. He is also the principal architect and first National Coordinator of the Commission's Cooperation Program, an initiative designed to facilitate and incentivize individuals and companies to self-report securities violations and participate in its investigations and related enforcement actions. In recognition of his important contributions to these national initiatives, while at the SEC, Jordan was a recipient of the Arthur Mathews Award, which recognizes "sustained demonstrated creativity in applying the federal securities laws for the benefit of investors," and, on two occasions, the Law and Policy Award.

Throughout his tenure at the SEC, Jordan was assigned to many of its highest-profile matters such as those involving Enron, Fannie Mae, UBS, and Citigroup. He successfully investigated, litigated and supervised a wide variety of enforcement matters involving violations of the Foreign Corrupt Practices Act, issuer accounting fraud and other disclosure violations, audit failures, insider trading, market manipulations, offering frauds, and broker-dealer, investment adviser and investment company violations. His cases resulted in monetary relief for harmed investors in excess of $35 billion.

Prior to joining the Commission, Jordan was a Trial Attorney at the Department of Justice, where he specialized in complex financial services litigation involving the FDIC and Office of Thrift Supervision. He began his legal career as a Navy Judge Advocate on active duty and continues to serve as a senior officer in its Reserve Law Program. Earlier, Jordan worked as a stockbroker.

Jordan is a board member of the City Bar Fund, which oversees the City Bar Justice Center, the pro bono affiliate of the New York City Bar Association. He also serves as the Chair of the Investor Rights Committee of the District of Columbia Bar.

Throughout his career, Jordan has received numerous awards and honors. Most recently, Jordan was named a 2015 Top Thought Leaders in Trust by Trust! Magazine and a 2014 Superstar by Corporate Responsibility Magazine. In 2012, he was named a Legal Rebel by the American Bar Association Journal in recognition of his trailblazing efforts in the legal field. Ethisphere Institute, an internationally recognized think tank, selected Jordan as a Rising Star in its listing of 2012 Attorneys Who Matter, which recognizes leading practitioners in the world of corporate ethics and compliance. While at the SEC, Jordan received four Chairman's Awards, four Division Director's Awards and a Letter of Commendation from the United States Attorney for the District of Columbia. He is also a decorated military officer, who has twice been awarded the Rear Admiral Hugh H. Howell Award of Excellence-the highest award the Navy can bestow upon a reserve judge advocate. Jordan has received an AV Preeminent rating, the highest attorney rating available, from the publishers of the Martindale-Hubbell legal directory.

Jordan is a nationally sought after writer, speaker and media commentator on securities enforcement, corporate ethics, and whistleblower issues.


Renee Phillips, partner in the New York office and Co-Head of Orrick’s Whistleblower Task Force, focuses her practice on employment litigation and counseling, with particular emphasis on Sarbanes-Oxley/Dodd-Frank whistleblower issues and internal investigations.

Renee has successfully defended employers in federal and state court litigations as well as administrative proceedings and arbitrations involving claims of discrimination, harassment, wrongful termination, whistleblowing, trade secret misappropriation and other employment-related claims. She regularly counsels employers on a variety of employment-related issues and assists clients in creating and implementing human resources policies, whistleblower policies, negotiating and drafting executive contracts, restrictive covenants and other employment agreements, and conducting internal investigations.

Renee is the co-author of the PLI treatise, Corporate Whistleblowing in the Sarbanes-Oxley/Dodd-Frank Era. She regularly writes and speaks on whistleblower and other employment topics.

Representative Engagements

Representative clients and matters:

  • Broadcom. Obtained complete dismissal of a Dodd-Frank whistleblower claim brought by a former in-house counsel.
  • Bank of America. Represented the bank in a high-profile Sarbanes-Oxley whistleblower suit at the Department of Labor brought by the former head of its Fraud Investigations Unit.
  • Credit Suisse. Obtained complete dismissal of a Sarbanes-Oxley whistleblower case at the Department of Labor, which was affirmed on appeal.
  • Wyeth. Successfully represented this client in several Sarbanes-Oxley whistleblower matters.
  • Confidential Investigations. Conducted several internal investigations of alleged misconduct by CEOs, Board members, and other C-suite executives at major financial services institutions.
  • Carrols Corporation. Represented Carrols Corporation, the largest holder of Burger King franchises, in the largest pattern or practice systemic class action for sexual harassment ever brought by the EEOC, EEOC v. Carrols.
  • Sephora. Won a Second Circuit appeal in a national origin and religious discrimination case.
  • Genentech. Won a Third Circuit appeal in a gender discrimination case.
  • Holland & Knight LLP. Obtained a seminal decision in Weir v. Holland & Knight LLP, which held that law firm partners are not covered by statutory discrimination protections.

Publications

  • Contributor, Orrick’s Employment Law & Litigation Blog
  • Contributor, Orrick's Equal Pay Pulse Blog
  • Co-author, Corporate Whistleblowing in the Sarbanes-Oxley/Dodd-Frank Era, PLI, 2012.
  • Co-Author, "Avoiding the Risk of Cybersecurity Whistleblowers," Law360, April 27, 2016.
  • “Foreign Whistleblower Awarded $30-$35 Million Dodd-Frank Whistleblower Bounty,” ABA International Labor & Employment Law Committee Newsletter, November 2014.
  • “Corporate Whistleblowing - Key Issues in Responding to Possible Violations,” The Review of Securities & Commodities Regulation, November 24, 2014.
  • “U.S. Whistleblower Law Does Not Apply Extraterritorially According to Federal Court,” ABA International Labor & Employment Law Committee Newsletter, August 2014.
  • “U.S. Whistleblower Laws’ Scope Narrowed to Complaints Arising in U.S. and Subjects under U.S. Law,” ABA International Labor & Employment Law Committee Newsletter, March 2014.
  • "Corporate Whistleblowing in the U.S.," Japan Commercial Arbitration Journal, June 6, 2012.
  • "What We Can Learn From the SEC's Office of the Whistleblower's Initial Report," International Financial Law Review, March 1, 2012.
  • "Corporate Whistleblowing in the U.S.," Employment & Industrial Relations Law, Vol. 22, No. 1, March 2012.

Speeches and Programs

  • Webcast: Renee Phillips on SEC enforcement and its impact on internal investigations from Rossdale CLE (12/3/15)
  • Webcast: Renee Phillips on Managing Internal Investigations & Corporate Compliance from Rossdale CLE (1/7/15)
  • Podcast: Renee Phillips on SEC's 1st Whistleblower Anti-Retaliation Case (7/1/14)

Admissions

  • New York

Court Admissions

  • United States District Courts | Eastern District of New York
  • United States District Courts | Northern District of New York
  • United States District Courts | Southern District of New York
  • United States Courts of Appeals | Second Circuit
  • United States Courts of Appeals | Third Circuit
  • United States Courts of Appeals | Fifth Circuit

Practice Areas

  • Whistleblower & Corporate Investigations
  • Employment Law & Litigation
  • Discrimination, Harassment & Retaliation

Honors

  • Law360 Rising Star
  • New York Law Journal Rising Star 2016
  • Employment Litigation Rising Star – New York, NY Super Lawyers 2015
  • American Society of Legal Advocates Top 40 Under 40 Labor/Employment Lawyer in New York State
  • The Recorder California Labor & Employment Department of the Year (2013-2015)
  • The Recorder California Litigation Department of the Year (2013-2014)
  • Legal Aid Society Pro Bono Award (2005)

Education

  • J.D., Industrial and Labor Relations, Harvard Law School, 2002
  • B.S., Industrial and Labor Relations, Cornell University, 1998

Clerkships/Externships

  • Hon. Robert L. Carter, United States District Court, Southern District of New York


Sarah Bouchard helps companies respond to workplace crisis situations.  She litigates highly sensitive and complex harassment, whistleblower, noncompetition, and trade secret matters across the United States. As co-leader of the firm’s whistleblower group, Sarah routinely handles litigation and litigation avoidance related to regulatory issues under the Sarbanes-Oxley Act, Dodd-Frank Act, False Claims Act, and Foreign Corrupt Practices Act.  She is adept at leading internal investigations related to workplace misconduct, including sexual harassment, advising employers on appropriate responses and remediation measures, and defending companies in employment lawsuits and related matters.

Sarah’s whistleblower experience includes litigating numerous cases before the US Occupational Safety and Health Administration (OSHA), administrative law judges, and federal courts. She defends clients against allegations involving complex regulatory and compliance issues, including value-added tax (VAT) treatment and free trade zone issues; inventory booking and corresponding implications on quarterly earnings reports; accurate revenue accounting treatment; proper internal control procedures; and stock option agreements and compensation models. On behalf of Morgan Lewis, she has published comments to the US Securities and Exchange Commission (SEC) on the Dodd-Frank whistleblower program, and is a frequent speaker on Sarbanes-Oxley (SOX) and Dodd-Frank whistleblower issues.

Sarah also advises employers on the preemptive creation of crisis management plans before harassment allegations are made, and she advises on workplace culture assessments to evaluate companies’ policies, practices, and processes for handling sexual harassment and other workplace complaints. Sarah has handled workplace harassment investigations and counseled on workplace crises for employers in the financial services, legal services, and media and entertainment industries.

A seasoned litigator with first- and second-chair trial experience in numerous matters, Sarah handles cases alleging violations of employment laws, including individual, US national, and regional collective class actions under the Fair Labor Standards Act (FLSA) and state wage and hour laws. She also litigates noncompete and trade secret matters for clients across the United States, most recently in the medical device and technology sectors.

Sarah also routinely advises employers on sexual harassment, employee leave rights, wage and hour compliance, and litigation avoidance, conducting training and internal audits related to these issues. Sarah is the labor and employment practice leader for the Philadelphia office.


Sarah Marcus is the Deputy Associate Solicitor of the Fair Labor Standards Division of the U.S. Department of Labor’s Office of the Solicitor.  Ms. Marcus has been an attorney with the Department since 2010.  Her work in the Fair Labor Standards Divison, which provides legal services to the Wage and Hour Division and the Directorate of Whistleblower Protection Programs within OSHA, has included handling appellate matters before U.S. Courts of Appeals in cases arising under the Fair Labor Standards Act, Sarbanes-Oxley Act, and other statutes as well as working on major regulatory projects—including the rule implementing the paid leave provisions of the Families First Coronavirus Relief Act—and providing general legal advice to her client agencies.  Ms. Marcus is a graduate of Yale College and Harvard Law School and served as a judicial clerk with the Alaska Supreme Court and the U.S. District Court for the District of Columbia. 


Thad Guyer is based in Saigon, and during the pandemic in Seattle, and has over 30 years of litigation experience representing whistleblowers against governments, international organizations, and Fortune 500 companies.  As Adjunct Senior Litigation Counsel for the Government Accountability Project in Washington, DC, he has argued cases in state and federal trial and appellate courts nationwide, and in the tribunals of the United Nations, World Bank, International Labour Organization (Geneva), and Latin American and African Development Banks. He has represented whistleblowers assigned to projects and missions in Africa, Latin America and the Caribbean, South Asia, East Asia, and Europe.  In addition to CLEs on whistleblower rights and corporate compliance in the U.S., he has been a speaker in Tokyo, Saigon, Beijing, Hong Kong, Rome, Paris and Bratislava.

Mr. Guyer is also a partner with T.M. Guyer and Ayers & Friends, PC.


Arian M. June is a litigation partner based in the firm’s Washington, D.C. office and is a member of the White Collar & Regulatory Defense Group. Recognized as one of 25 Influential Black Women in Business by The Network Journal (2020) and by Benchmark Litigation’s 40 and Under Hotlist (2020), Ms. June’s practice focuses on government and internal investigations, securities enforcement defense, whistleblower response, sensitive investigations, crisis management and white collar criminal defense. She has represented financial institutions, publicly traded companies, investment advisers and senior executives in complex regulatory matters, including allegations of securities fraud, insider trading, accounting and corporate disclosure issues, violations of the Bank Secrecy Act, cyber-intrusions and sales practices violations, including matters involving foreign exchange products and the distribution of life insurance products. Ms. June advises clients on various facets of the Dodd-Frank Act, with particular emphasis in designing corporate policies and procedures to comply with the Dodd-Frank Whistleblower regulations, investigating corporate whistleblower reports and mitigating whistleblower-related risks. In addition to her white collar practice, Ms. June also advises boards of corporations, educational institutions and other organizations in sensitive investigations, including board-directed independent inquiries of allegations involving sexual misconduct, racial intolerance and related matters.

Ms. June speaks and publishes frequently on topics of importance to her practice area. She has authored or co-authored articles for publications such as Bloomberg BNA Securities Regulation & Law Report, Bloomberg BNA World Securities Law Report, Law360, Journal of Investment Compliance and The Hill. Ms. June is co-editor-in-chief of the firm’s Accounting & Financial Reporting Enforcement Round-Up.

Ms. June has served in a variety of professional leadership roles, including as a Fellow to the American Bar Foundation, a Board Member of the District of Columbia Bar Board of Governors, a member of the Board of Trustees for the Washington Lawyers' Committee for Civil Rights and Urban Affairs and Vice Chair for the Federal Regulation of Securities Committee of the American Bar Association Business Law Section. She was also recently appointed to the Board of Directors of the National Health Law Program.

Ms. June joined Debevoise in 2017. She was previously a counsel at an international Washington, D.C.-based firm. She received her J.D. from the University of Pennsylvania Law School, where she served as a senior editor of the University of Pennsylvania Law Review. She earned a B.A. cum laude at the University of Maryland. Ms. June served as a law clerk to Chief Judge Royce C. Lamberth, U.S. District Court for the District of Columbia.


Jason Zuckerman litigates whistleblower retaliationwhistleblower rewards, wrongful discharge, and other employment-related claims, and authors the Whistleblower Protection Law Blog. His broad experience includes practicing employment law at a national law firm, serving as a Principal at The Employment Law Group, and serving as Senior Legal Advisor to the Special Counsel at the U.S. Office of Special Counsel, the federal agency charged with protecting whistleblowers in the federal government. In 2012, the Secretary of Labor appointed Zuckerman to serve on the Whistleblower Protection Advisory Committee, which makes recommendations to the Secretary of Labor to improve OSHA’s administration of federal whistleblower protections.

At OSC, Zuckerman worked on several high-profile investigations, including a whistleblower retaliation case resulting in the removal of an Inspector General.  He also took an active role in the agency’s implementation of the Whistleblower Protection Enhancement Act, expanded the agency’s outreach program, and drafted amicus curiae briefs on key issues concerning federal employee whistleblower rights and protections.

Zuckerman is rated 10 out of 10 by Avvo, based largely on client reviews, and rated AV Preeminent® by Martindale-Hubbell based on peer reviews.  He was recognized by Washingtonian magazine as a “Top Whistleblower Lawyer” in 2015, and selected by his peers to be included in The Best Lawyers in America® in the category of employment law (2011-2017).

He has lectured extensively on whistleblower law and employment law, especially on Dodd-Frank, Sarbanes-Oxley and False Claims Act actions, and has written several articles on whistleblower protections. Zuckerman co-authored a chapter on litigating whistleblower cases for Whistleblowing: The Law of Retaliatory Discharge, drafted a chapter on the D.C. Whistleblower Protection Act for the D.C. Practice Manual, and is a contributing author to The International Handbook on Whistleblowing Research.

For nearly a decade, Zuckerman has been a contributing author to an annual update on the whistleblower protection provisions of the Sarbanes-Oxley Act published by the ABA Fair Labor Standards Legislation Committee. Zuckerman’s articles have been cited in various treatises and in a federal court opinion on the scope of Sarbanes-Oxley whistleblower protection. Zuckerman has trained administrative law judges, agency EEO directors, senior OIG officials and delegations from more than 30 countries on federal whistleblower protections.

Zuckerman serves as Co-Chair of the Whistleblower Subcommittee of the ABA Labor and Employment Section’s Employee Rights and Responsibilities Committee and served as Co-Chair of the National Employment Lawyers Association’s Whistleblower Committee, Co-Chair of the Sarbanes-Oxley Subcommittee of the ABA Labor and Employment Fair Labor Standards Legislation Committee, Co-Chair of the Whistleblower Committee of the District of Columbia Bar’s Labor and Employment Section, and member of Law 360’s Employment Editorial Advisory Board.

Zuckerman graduated Phi Beta Kappa and magna cum laude from Georgetown University and received his law degree from the University of Virginia, where he served as Articles Editor of the Virginia Journal of Law and Technology.  He is admitted to practice before the District of Columbia, Maryland and Virginia bars, the United States Supreme Court, the United States Court of Appeals for the Second, Fourth, and Federal Circuits, the United States District Court for the District of Columbia, the United States District Court for the Eastern District of Virginia, and the United States District Court for the District of Maryland.


Steven J. Pearlman is a partner in the Labor & Employment Law Department and co-head of the Whistleblowing & Retaliation Group. Steven’s practice covers the full spectrum of employment law, with a focus on claims of discrimination, retaliation and harassment, restrictive covenant violations, wage-and-hour violations, whistleblower retaliation and breach of contract. He defends class and collective actions, as well as single-plaintiff actions. He has successfully tried cases in multiple jurisdictions, and defended what is reported to be one of the largest Illinois-only class actions in the history of the U.S. District Court for the Northern District of Illinois. Reporting to boards of directors and their audit committees, he conducts sensitive investigations and has testified in defense of investigations in federal court.

Chambers describes Steven as an “outstanding lawyer” who is “very sharp and very responsive.” Steven was 1 of 12 individuals selected by Compliance Week as a "Top Mind."  Earlier in his career, he was 1 of 5 U.S. lawyers selected by Law360 as a "Rising Star Under 40" in the area of employment law and 1 of "40 Illinois Attorneys Under Forty to Watch" selected by Law Bulletin Publishing Company. Steven is a Burton Award Winner (U.S. Library of Congress) for "Distinguished Legal Writing." He was elected as a Fellow to the College of Labor and Employment Lawyers.

Steven has served on Law360’s Employment Editorial Advisory Board and is a Contributor to Forbes.com. He has appeared on Bloomberg News (television and radio) and Yahoo! Finance, and is regularly quoted in leading publications such as The Wall Street Journal.

The U.S. Chamber of Commerce has engaged Steven to serve as lead counsel on amicus briefs to the U.S. Supreme Court and federal circuit courts. He was appointed to serve as a Special Assistant Attorney General for the State of Illinois in employment litigation matters. He has presented with the Solicitor of the DOL, the Acting Chair of the EEOC, an EEOC Commissioner and heads of government whistleblower programs (SEC, CFTC and OSHA).


Teri M. Wigger is the Assistant Regional Administrator for OSHA’s Region 2 Whistleblower Protection Programs. Region 2’s geographical territory includes: New York, New Jersey, Puerto Rico and the Virgin Islands. The program enforces 23 whistleblower provisions the Secretary of Labor has been delegated the authority to investigate.

Teri is a graduate of Binghamton University with a degree in Political Science and a concentration in Public Policy. She started her career with OSHA in 1988 and as a Compliance Officer and was quickly recruited by the whistleblower program supervisor. Teri played a significant role in changing the culture of the railroad industry in the early days after Congress enacted the Federal Railroad Safety Act (FRSA), making a significant impact on the safety of this industry. Teri has also investigated egregious cases under the environmental statutes and was one of the early agency experts on cases under the Sarbanes Oxley Act.

In January of 2017, Teri received a Commendation Coin from the Assistant Secretary of OSHA for her leadership work on an agency “Tiger Team” which dealt with financial fraud whistleblower statutes. The Secretary of Labor gave Teri the Distinguished Career Service Award in 2016.