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Whistleblower Protection: Dodd-Frank and SOX

by John Jacob Tollefsen1The author practices law in Oregon, Washington, California, Texas, D.C., and New York. He has been lead counsel on several SOx § 806 cases including Tides v. The Boeing Co., 644 F.3d 809 (C.A.9, Wash. 2011), cert. den. 132 S.Ct. 518 (2011) and Reid v The Boeing Company, 2009-SOX-27 (ARB Mar. 30, 2012).  Overview of Whistle Blower Protection under Dodd-Frank and SOX including the SEC Bounty Program The Sarbanes Oxley Act of 2002 (“SOx”) § 8063SOx § 806 is codified as 18 U.S.C. § 1514A(a)(1). was designed to protect certain employees who reasonably believe they are reporting a violation of a law, rules, or regulation listed in § 806. Due to drafting issues and the hostility of courts and administrative judges, few whistleblowers prevailed. The Dodd–Frank Wall Street Reform and Consumer Protection Act of 2010 add additional protections designed to increase the whistleblowers chances of success. This article provides a brief overview of federal whistleblower protection under Sox and Dodd-Frank including the Securities and Exchange Commission bounty program.2There are numerous other whistleblowing protection provisions in federal law that may be helpful in a particular case including aircraft safety and environmental issues that are not covered by this article. Prepare to have your career ruined As a practical matter, whistleblowing protection has not been favored by judges. This is to be expected. For many people, a “whistleblower” is a “snitch”.4The English language is rife with pejorative terms for whistleblower like informer, fink, stoolpigeon, stoolie, sneak, blabbermouth, tattler, tattletale, squealer, mole, betrayer, rat, and rat fink. Even lawyers fight rules (like ABA proposed ethical rules) making reporting of...

Foreclosure Not Outrageous

Lyons v U.S. Bank National Association (WA SC October 30, 2014) Decision: 141030-Lyons-v-US-Bank Lyons defaulted on the note secured by a trust deed on her home. In October 2011, Lyons filed bankruptcy, and in January 2012 she applied for a loan modification with Wells Fargo. On March 30, 2012, while Lyons was waiting for a response regarding her application for a modification, she received a notice of trustee’s sale from NWTS informing her that her property was scheduled to be sold  on July 6, 2012. On April 5,2012, Wells Fargo told Lyons’ attorney that the in-house modification had been approved. On April 19,2012, Lyons received the letter confirming the modification. The terms required her to pay $10,000 by May 1,2012. Wells Fargo informed Lyons they would discontinue the sale upon receipt of this payment. She paid this amount to Wells Fargo as required. However, on March 29, 2012, Wells Fargo had sold Lyons’ loan to U.S. Bank National Association as trustee for Stanwich Mortgage Loan Trust Series 2012-3 with Carrington Mortgage Services LLC as the new servicer of the loan. This was to become effective on May 1,2012. NWTS received notice of the sale and service release on April 12,2012. Lyons received notice of this sale on April 26, 2012. On April 26, 2012, Lyons’ attorney spoke with a representative of NWTS to inform it that Wells Fargo no longer had any beneficial interest in the loan after the sale, that Carrington was the new servicer of the loan, and that Lyons had received a loan modification so she was no longer in default. On June 11, 2012, Lyons’...

Principles of contract interpretation

Washington State Law – Principles of Contract Interpretation Viking Bank v. Firgrove Commons 3, LLC, 2014 Wash. App. LEXIS 2277 (Division II, Wash. Ct. App.Sept. 16, 2014) Decision: 140916-II-Viking-Bank-v-Firgrove The court refused to imply a promise to pay management fees into the triple net provision of a commercial lease. These facts are unusual because standard commercial leases specifically list management fees in the description of costs passed on to tenants. This case is useful for the following statement of the principles of contract interpretation applicable to Washington State: “The primary objective in contract interpretation is to ascertain the mutual intent of the parties at the time they executed the contract. Int’l Marine Underwriters v. ABCD Marine, LLC, 179 Wn.2d 274, 282, 313 P.3d 395 (2013). Washington follows the “objective manifestation theory” of contract interpretation, under which the focus is on the reasonable meaning of the contract language to determine the parties’ intent. Hearst Commc’ns, Inc. v. Seattle Times Co., 154 Wn.2d 493, 503, 115 P.3d 262 (2005). “We generally give words in a contract their ordinary, usual, and popular meaning unless the entirety of the agreement clearly demonstrates a contrary intent.” Hearst, 154 Wn.2d at 504. And we view the contract as a whole, interpreting particular language in the context of other contract provisions. See Weyerhaeuser Co. v. Commercial Union Ins. Co., 142 Wn.2d 654, 669-70, 15 P.3d 115 (2000). “To assist in determining the meaning of contract language, we also apply the “context rule” adopted in Berg, 115 Wn.2d at 666-69. This rule allows examination of the context surrounding a contract’s execution, including the consideration of extrinsic evidence...

No notice of damages sought required in Washington pleadings

Kathryn Learner Family Trust v. Wilson, 2014 Wash. App. LEXIS 2196 (Wash. Ct. App., Div. 3, Sept. 4, 2014) Decision: 140904-Learner-v-Wilson It has long been the common law rule that a plaintiff must give notice to the defendant of the type of damages it is seeking. Prior to the advent of “notice pleading” the defendant had the right to notice of the amount of damages. The rule developed that “general damages” did not need pled. General damages are those which are the “natural and necessary result of the wrongful act or omission asserted as the basis for liability. They are presumed by or implied in law to have resulted from the injury.”1Jensen v. Torr, 44 Wn. App. 207, 214, 721 P.2d 992 (1986). Attorney fees were considered “costs” but the meaning of “costs” changed over time through statutory construction and judicial decision as American courts moved from their British roots. Under federal law, attorney fees arising under a contract2If the attorney fees are from another source like a statute or are part of the cause of action, the rule probably is not applicable are special damages that must be pled under Federal Rule of Civil Procedure 9(g).3United Indus., Inc. v. Simon-Hartley, Ltd., 91 F.3d 762, 764 (5th Cir. 1996) (citing Maidmore Realty Co., Inc. v. Maidmore Realty Co., Inc., 474 F.2d 840, 843 (3rd Cir. 1973) This court held that these rules have been altered in Washington by Civil Rule 54(c) which provides the except “as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose...

Member loses right to file derivative action against LLC by filing bankruptcy petition.

Northwest Wholesale, Inc. v. Pac Organic Fruit, LLC,2014 Wash. App. LEXIS 2197 (Wash. Ct. App.Sept. 4, 2014) Case decision: 140904-Northwest-v-Pac-Organic This case provides an example of the application of Washington limited liability company law to derivative actions when a member files a petition in bankruptcy. One party wanted to bring a derivative action after filing a Chapter 11 petition. This is not allowed under Washington Law. RCW 25.15.370 reads: A member may bring an action in the superior courts in the right of a limited liability company to recover a judgment in its favor if managers or members with authority to do so have refused to bring the action or if an effort to cause those managers or members to bring the action is not likely to succeed.  39 RCW 25.15.375 provides:  In a derivative action, the plaintiff must be a member at the time of bringing the action and: (1) At the time of the transaction of which the plaintiff complains; or (2) The plaintiff’s status as a member had devolved upon him or her by operation of law or pursuant to the terms of a limited liability company agreement from a person who was a member at the time of the transaction. Under RCW 25.15.130(1)(d)(ii), a member of a limited liability company loses his or her membership upon the filing of bankruptcy. The statute provides:  (1) A person ceases to be a member of a limited liability company, and the person or its successor in interest attains the status of an assignee as set forth in RCW 25.15.250(2), upon the occurrence of one or more of the...

90% Means 90% – Modifying Condominium Declaration

Filmore LLLP v. Unit Owners Ass’n of Centre Pointe Condo., 2014 Wash. App. LEXIS 2181 (Wash. Ct. App. Sept. 2, 2014) Decision: 140902-Filmore-v-Unit-Owners The condominium’s declaration required more than 67% of the votes for amendments. The Washington condominium statute requires 90% majority to change the “use” of condominiums. The legal question was whether changing the leasing rights of condominium owners was a change in use. RCW 64.34.264, entitled “Amendment of declaration,” provides in relevant part: (1) Except in cases of amendments that may be executed by a declarant under RCW 64.34.232(6) or 64.34.236; the association under RCW 64.34.060, 64.34.220(5),64.34.228(3),64.34.244(1),64.34.248, or 64.34.268(8); or certain unit owners under RCW 64.34.228(2), 64.34.244(1), 64.34.248(2), or 64.34.268(2), and except as limited by subsection (4) of this section, the declaration, including the survey maps and plans, may be amended only by vote or agreement of unit owners of units to which at least sixty-seven percent of the votes in the association are allocated, or any larger percentage the declaration specifies: PROVIDED, That the declaration may specify a smaller percentage only if all of the units are restricted exclusively to nonresidential use. (4) Except to the extent expressly permitted or required by other provisions of this chapter, no amendment may create or increase special declarant rights, increase the number of units. change the boundaries of any unit, the allocated interests of a unit, or the uses to which any unit is restricted, in the absence of the vote or agreement of the owner of each unit particularly affected and the owners of units to which at least ninety percent of the votes in the association are...

Debt Purchasers Need Collection License

Gray v Suttell & Associates (Supreme Court WA, Aug 28, 2014)   Copy of the Opinion: 140828 WSC Gray v Suttell Over a thousand collection lawsuits were filed in the name of the purchaser of the debt. The Supreme Court held that was unlawful if the buyer did not have a debt collection license from Washington State. The court included the following industry analysis in its opinion. Since the enactment of the WCAA, the debt collection industry has grown and changed to keep up with the increasing amount of consumer delinquent debt. TheFederal Trade Commission noted that ‘”[t]he most significant change in the debt collection business in recent years has been the advent and growth of debt buying.”‘FED. TRADE COMM’N, THE STRUCTURE AND PRACTICES OF THE DEBT BUYING INDUSTRY (2013) (alteration in original) (quoting FED. TRADE COMM’N, COLLECTING CONSUMER DEBTS: THE CHALLENGE OF CHANGE 13 n.1 (2009)). Although a relatively new industry, by 2007, the debt collection industry employed over 200,000 people and reported annual revenue of $58 billion from consumer collections. RICK JURGENS & ROBERT J. HOBBS, NAT’L CONSUMER LAW CTR., THE DEBT MACHINE, HOW THE COLLECTION INDUSTRY HOUNDS CONSUMERS AND OVERWHELMS COURTS 5 (201 0). A “debt buyer” is an entity or individual that purchases delinquent or charged-off debts from a creditor, usually for a fraction of the face value of the debt, and then takes some action to collect on those claims. H.B. REP. on SUBSTITUTE H.B. 1822, at 2, 63d Leg., Reg. Sess. (Wash. 2013). There is growing concern that collection practices employed by debt buyers are harmful to consumers. A legislative staff summary of public...

False Claims Act Whistleblower

The False Claims Act provides that ¨Any employee who is discharged; or demoted; or suspended; or threatened; or harassed; or in any manner discriminated against is entitled to bring an action for reinstatement with same seniority; 2 times back pay with interest; special damages; emotional distress; attorneys’ fees and costs. No punitive damages are available. An “employee” includes: temporary worker; and demoted worker; and discharged worker. An independent contractor is not an employee. A false claims act whistleblower should expect harassment in the form of counterclaims filed in the retaliation action; industry blackballing; unprovable but real retaliation; reassignment for ostensibly unrelated reasons; other non-compensatable harassment; possible losing the case; and paying attorney fees and costs if the retaliation case is deemed frivolous. More on False Claims Act Whistleblower Protection Washington State False Claims Act Qui Tam (False Claims Act) procedure False Claims Act...

CPA Claims Assignable

CPA Claims Assignable No Exception for Fraud under Economic Loss Rule Duty of Good Faith Does Not Create Warranty   Carlile v. Harbour Homes, Inc., 147 Wn. App. 193, 194 P.3d 280, (Wash.App. Div. 1 Oct 20, 2008) (NO. 61419-3-I) Homes are purchased by contract. Washington law denies the home purchaser the right to sue for torts like negligence under the “economic loss rule.” The rule limits the parties to their contract remedies because “tort law is not intended to compensate parties for losses suffered as a result of a breach of duties assumed only by agreement.” Alejandre v. Bull, 159 Wash.2d 674, 681, 682, 153 P.3d 864 (2007). An exception to the rule was created for fraudulent concealment claims. In Carlile, the court was asked to create an exception for intentional misrepresentation (common law fraud). The two tort claims have distinct elements. A claim for fraudulent concealment requires a plaintiff to show: (1) [that] the residential dwelling has a concealed defect; 2) the vendor has knowledge of the defect; (3)the defect presents a danger to the property, health, or life of the purchaser; (4) the defect is unknown to the purchaser; and (5) the defect would not be disclosed by a careful, reasonable inspection by the purchaser. The nine elements of intentional misrepresentation (common law fraud) are: (1) representation of an existing fact; (2) materiality; (3) falsity; (4) the speaker’s knowledge of its falsity; (5) intent of the speaker that it should be acted upon by the plaintiff; (6) plaintiff’s ignorance of its falsity; (7) plaintiff’s reliance on the truth of the representation; (8) plaintiff’s right to rely...

Making Dissident Shareholders Pay Legal Fees

ATP TOUR, INC., Etienne De Villiers, Charles Pasarell, Graham Pearce, Jacco Eltingh, PerryRogers, and Iggy Jovanovic, Appellants, v. DEUTSCHER TENNIS BUND (German Tennis Federation), Rothenbaum Sport GmbH, and Qatar Tennis Federation, Appellees. Supreme Court of Delaware, May 8, 2014 Decision: 150508-ATP-Tour-v-Bund The general rule in the United States is that each party pay its own legal fees and costs unless there is a contract or statute that provides otherwise. The “American Rule” as this is known is prevalent throughout courts and arbitrations in all 50 states. The Delaware was asked to decide whether a bylaw making dissident shareholders pay legal fees when they lose violated public policy. The court said it did not unless it was being used for an inequitable purpose. It did not matter that the bylaw was completely one-sided. It did not make the corporation liable for the dissident shareholders’ legal fees if the corporation lost the case. Excerpts from the decision: A fee-shifting bylaw, like the one described in the first certified question, is facially valid. Neither the DGCL nor any other Delaware statute forbids the enactment of fee-shifting bylaws. A bylaw that allocates risk among parties in intracorporate litigation would also appear to satisfy the DGCL’s requirement that bylaws must “relat[e] to the business of the corporation, the conduct of its affairs, and its rights or powers or the rights or powers of its stockholders, directors, officers or employees.” The corporate charter could permit fee-shifting provisions, either explicitly or implicitly by silence. Moreover, no principle of common law prohibits directors from enacting fee-shifting bylaws.   The third certified question asks whether the bylaw is...