Current Employee Whistleblowers: Recent Developments

Transcription

1 Current Employee Whistleblowers: Recent Developments Lloyd B. Chinn Ebony Ray Proskauer Rose LLP ERR Midwinter Meeting Puerto Vallarta March 2017

2 A. Background Current employee whistleblowers pose myriad unique challenges to employers. Below are collected recent (i.e., last few years) legal developments in this area. B. Adverse Actions Issuing a Litigation Hold Halliburton, Inc. v. Administrative Review Board, 771 F.3d 254 (5th Cir. 2014) (affirming an ARB decision finding that an employer s disclosure of an SEC whistleblower employee s identity to his colleagues amounted to an adverse action) In a case brought under SOX, the Fifth Circuit affirmed a decision of the Department of Labor s Administrative Review Board (ARB) and held that disclosing the identity of a whistleblower may constitute an adverse employment action and therefore retaliation against the whistleblowing employee. The case involved an employee who circulated a memorandum to colleagues within his department raising concerns that some of Halliburton's accounting practices involving revenue recognition did not conform with generally accepted accounting principles. The same employee also later contacted the SEC and the company s confidential whistleblowing hotline to voice concerns about the company s accounting practices. After receiving notice of an SEC investigation, the General Counsel of the company inferred from the employee s previous internal memo that he must have reported his concerns to the SEC. In anticipation of the SEC investigation, the General Counsel sent out legal hold notices that identified the employee whistleblower. Although the General Counsel may have been complying with an obligation to retain potentially relevant documents, the ARB held -- and the Fifth Circuit affirmed -- that the disclosure of the employee s identity as the whistleblower constituted a materially adverse action. The court analogized antiretaliation under SOX to antiretaliation under Title VII, and used the U.S. Supreme Court s standard set forth in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006). In Burlington, the Supreme Court emphasized that, in a Title VII context, an adverse action must have dissuaded a reasonable worker from making or supporting a charge of discrimination in order to be materially adverse. Halliburton, 771 F.3d at 259 (quoting Burlington, 548 U.S. at 67-68). Using this standard, the Halliburton court concluded that the whistleblower s disclosure to his colleagues created an environment of ostracism, which in turn well might dissuade a reasonable employee from whistleblowing. Id. at 262. The employee testified that after the hold notices went out, his coworkers avoided him, he became isolated at work, he was eventually reassigned to a lower ranking accounting officer, and ultimately resigned. For employers this is a troubling (and indeed fundamentally flawed) decision as it requires employers to choose between engaging in fulsome document preservation efforts 2

3 (and thereby risking a retaliation claim) versus maintaining the confidentiality of the whistleblower (and risking a spoliation claim). Forwarding of Whistleblower Complaint Quast v. MidAmerican Energy Co., No CV-00278, 2016 WL (S.D. Iowa Feb. 8, 2016) (distinguishing Halliburton, Inc. on its facts) In Quast, a plaintiff alleged that disclosure of his identity as a whistleblower constituted an adverse action under SOX and cited to Halliburton in support of this contention. On April 9, 2011, the plaintiff wrote a letter to Warren Buffett, board chairman and CEO of Berkshire Hathaway, an indirect parent corporation of the plaintiff s employer MidAmerican. In his letter, plaintiff states that a former chairman of MidAmerican engaged in misconduct including purchasing shares in a particular company before suggesting to Buffett that Berkshire Hathaway purchase shares in the company. Plaintiff marked each page of the letter strictly confidential. After he sent the April 9 letter to Buffett, he forwarded it to his direct supervisor and discussed it with one other person up his direct chain of command. The plaintiff alleged that these individuals retaliated by forwarding the letter to the Head of HR and the Director of Security. The Southern District of Iowa held that unlike the plaintiff in Halliburton whose identity was released to the very colleagues about whom he was complaining, the plaintiff at issue in Quast did not report his colleagues, but rather, reported a former [executive] from whom there was no risk of harassment. Id. at *12. The court found that once the plaintiff shared the information with various individuals in his chain of command (and above), plaintiff in essence abandoned any legitimate expectation of privacy. Id. Moreover, the court found that since the Head of HR and Director of Security had a legitimate business purpose to review the letter, it therefore was not unforeseeable to plaintiff that [his letter might be shared with them.] Id. Accordingly, the Court concluded that disclosure of the April 9 letter to the Head of HR and the Director of Security was not materially adverse such that the plaintiff would have been dissuaded from making his disclosures to Buffett and others in his direct chain of command had he known the information would be shared with these two additional individuals. Id. Negative Reference Timmons v. CRST Dedicated Services, Inc., No , 2014 WL (U.S. Dep t of Labor Adm. Review Bd. Sept. 29, 2014) In Timmons, the ARB upheld a damages award where a whistleblower s former employer provided negative references to potential employers thereby blacklisting the whistleblower. Grant E. Timmons, a truck driver, filed a complaint with the Occupation Safety and Health Administration (OSHA) alleging that his company terminated him in violation of the Surface Transportation Assistance Act of 1982 (STAA) for making complaints about job safety. After Timmons and CRST settled the complaint, Timmons looked for other trucking jobs and applied with Howell s Motor Freight (Howell s). 3

4 An employment verification report sent to Howell s from CRST included the fact that CRST terminated Timmons employment because he did not meet company standards and was not eligible for rehire. Id. at *1. Timmons testified that a Howell's representative told him he would have been hired but for his reference indicating he had been terminated from CRST. The ARB noted that the STAA regulations specifically provide for a cause of action for an employee whose employer blacklists him because he engaged in protected activity and the Board has recognized that blacklisting may be the adverse action in a STAA complaint. Id. (internal citations omitted). C. Confidentiality Provisions Generally Securities and Exchange Commission Enforcement Actions In early 2015, the SEC began actively pursuing enforcement actions against organizations, aiming to eliminate employment agreements that deter reporting to the SEC. The SEC sent broad document requests to several companies for employment agreements, severance agreements, release of claim agreements, and policies and handbooks relating to confidentiality. On April 1, 2015, the SEC announced its first enforcement action in this area. The SEC brought an action against KBR for having a policy that would have required employees and former employees involved in certain internal investigation interviews to sign confidentiality statements that warned that employees could face discipline and even be fired if they discussed the matters with outside parties without the prior approval of [the company s] legal department. Since these investigations included allegations of possible securities law violations, the SEC found that these terms violated Rule 21F-17, which prohibits companies from taking any action to impede whistleblowers from reporting possible securities violations to the SEC. 1 Notably, the SEC chose to pursue KBR even though, according to the SEC s order, there were no apparent instances in which KBR had ever actually prevented any current or former employees from communicating with the SEC. The company settled with the SEC for $130,000 and revised its confidentiality statement as follows: o Nothing in this Confidentiality Statement prohibits me from reporting possible violations of federal law or regulation to any governmental agency or entity, including but not limited to the Department of Justice, the Securities and Exchange Commission, the Congress, and any agency Inspector General, or making other disclosures that are protected under the whistleblower provisions of federal law or regulation. I do not need the prior authorization of the Law Department to make any such reports or disclosures and I am not required to notify the company that I have made such reports or disclosures

5 On June 23, 2016, the SEC announced that after investigating Merrill Lynch, it found that the company violated the SEC s Customer Protection Rule for (among other things) misusing customer cash and also violated the Exchange Act Rule 21F-17 for using prohibitive confidentiality language in its severance agreements. Merrill Lynch appears to have paid $358 million in civil penalties for its 21F-17 violations. 2 The language in its severance agreements prohibited departing employees from voluntarily disclosing any confidential information or trade secrets except pursuant to formal legal process or written authorization. In 2014, the company also added language advising that the agreement did not prohibit initiating communication with the SEC or other authorities so long as the information provided related to the severance agreement itself or its underlying facts and circumstances. Merrill Lynch revised the agreements to include express carve-out language, started annual training that included a summary of and link to a document called Notice Concerning Your Rights to Report Possible Violations of Law (21F-17 Notice), and updated its code of conduct and other policies to comply with Rule 21F-17. The SEC considered the substantial remedial acts promptly undertaken by the company and its substantial cooperation with the SEC. The SEC did not require the company to contact former employees who had already signed the prohibited agreements. On September 28, 2016, the SEC charged Anheuser-Busch InBev with violating the Foreign Corrupt Practices Act (FCPA) and for entering into a separation agreement that prevented an employee from continuing to communicate with the SEC in connection with FCPA misconduct. 3 The company s 2012 agreements contained provisions that 1) prohibited against disclosing confidential and proprietary information, with no carve-out for government agencies; 2) prohibited against disclosing the substance of the separation agreement; and 3) included $250,000 liquidated damages in the event the employee breached the confidentiality provisions. As a result, at least one employee who had been communicating with the SEC ceased doing so after signing the agreement. The company has agreed to pay $6 million to settle the SEC s charges and was ordered to contact former employees identified by the SEC to inform them of their reporting rights. The SEC did not require revised separation agreements because in 2015, the company updated its agreements to include: I understand and acknowledge that notwithstanding any other provision of this Agreement, I am not prohibited or in any way restricted from reporting possible violations of law to a governmental agency or entity, and I am not required to inform the Company if I made such reports. Financial Industry Regulatory Authority (FINRA) In October, 2014, FINRA issued Regulatory Notice 14-40, reminding firms that it is a violation of FINRA Rule 2010 to include confidentiality provisions in a settlement

6 agreement or any other documents, including confidentiality stipulations made during a FINRA arbitration proceeding, that prohibit or restrict a customer or any other person from communicating with the Securities and Exchange Commission (SEC), FINRA, or any federal or state regulatory authority regarding a possible securities law violation. 4 National Labor Relations Board (NLRB) In Bridgewater Associates, LP, Case No. 01-CA (filed June 30, 2016), the NLRB accused a hedge fund of violating the National Labor Relations Act by requiring employees to sign agreements prohibiting them from divulging confidential information or disparaging the company. The NLRB also accused Bridgewater of suspending an employee for violating its rules. The complaint was withdrawn in late 2016, suggesting that the matter may have been settled. In Banner Health System, 358 NLRB 809 (2012), vacated on other grounds sub nom, Banner Health System v. NLRB, No , 2014 U.S. App. LEXIS (D.C. Cir. Aug. 1, 2014), the NLRB found that an employer violated the National Labor Relations Act by asking an employee to keep confidential and refrain from discussing a matter under investigation. The Board concluded that the statement, viewed in context, had a reasonable tendency to coerce employees, and so constituted an unlawful restraint on Section 7 rights. 358 NLRB at 810. The Board held that employers must therefore have a legitimate business justification that outweighs employees Section 7 rights in order to justify a prohibition on discussion of matters under investigation. Id. Based on the decision, an employer may require confidentiality in an ongoing investigation only on a case-by-case basis where the employer is able to specifically demonstrate that the integrity of the investigation is at risk. This includes cases in which: (1) witnesses need protection; (2) evidence is in danger of being destroyed; (3) testimony is in danger of being fabricated; or (4) there is a need to prevent a cover-up. The decision applies to unionized and non-unionized workplaces. See id. Occupational Safety and Health Administration (OSHA) Policy Guidelines for Settlement On August 23, 2016, OSHA issued new policy guidelines to regional whistleblower program managers who review settlement agreements between employers and employees. The guidelines set forth criteria for approving settlement agreements during the investigative stage: OSHA will not approve a gag provision that prohibits, restricts, or otherwise discourages a complainant from participating in protected activity. Protected activity includes, but is not limited to, filing a complaint with a government agency, participating in an investigation, testifying in proceedings, or otherwise providing information to the government

7 The guidelines direct managers to ask the parties to remove any such provisions that run afoul of the guidelines and/or add a prominent statement pre-drafted by OSHA that states, in effect, that nothing in the agreement is intended to impede a complainant s right to communicate with the government, engage in all whistleblower activity protected under the whistleblower statutes administered by OSHA, or receive a monetary award under a government-administered whistleblower award program. D. Non-Disparagement Provisions The SEC brought cease and desist proceedings against NeuStar, Inc., and on December 19, 2016 announced a settlement by which the company paid $180,000 and agreed to contact 246 former employees to inform them that the severance agreements they had signed between August 2011 and May 2015 do not prevent them from communicating about violations of law or regulations to the SEC. 6 The SEC found that at least one former employee was allegedly impeded from communicating with the SEC as a result of this provision. Upon commencement of the SEC s investigation, the company voluntarily updated its agreements: o Non-Disparagement Language Objected to by SEC: Except as specifically authorized in writing NeuStar or as may be required by law or legal process, I agree not to engage in any communication that disparages, denigrates, maligns or impugns NeuStar... including but not limited to communication with... regulators (including but not limited to the [SEC]. o Revisions: NeuStar removed reference to regulators in the non-disparagement clause. It also added the following: In addition, nothing herein prohibits me from communicating, without notice to or approval by NeuStar, with any federal government agency about a potential violation of a federal law or regulation. E. Provisions Prohibiting Bounty or Monetary Recovery in Connection with Law Enforcement or Agency Action The SEC brought cease and desist proceedings under Rule 21F-17 against BlueLinx Holdings, Inc. (Aug. 10, 2016) 7 and Health Net, Inc. (Aug. 16, 2016) 8 resulting in both companies settling for $265,000 and $340,000 respectively. For the first time, the SEC explicitly held a bounty waiver unenforceable. BlueLinx s severance agreements included the following bounty waiver language:

8 o Employee further acknowledges and agrees that nothing in this Agreement prevents Employee from filing a charge with... the [SEC] or any other administrative agency if applicable law requires that the Employee be permitted to do so; however, Employee understands and agrees that Employee is waiving the right to any monetary recovery in connection with any such complaint or charge that Employee may file with an administrative agency. (Emphasis added) As part of the settlement, BlueLinx amended its agreements to read, in part, This Agreement does not limit Employee s right to receive an award for information provided to any Government Agencies. Health Net s 2011 severance agreement required employees to waive the right to file an application for award for original information submitted pursuant to Section 21F of the Securities Exchange Act of About 600 employees signed agreements containing this language between August 2011 and June In June 2013, Health Net updated this language to the following: o [N]othing in this Release precludes Employee from participating in any investigation or proceeding before any federal or state agency or governmental body... however while Employee may file a charge, provide information, or participate in any investigation or proceeding, by signing this Release, Employee, to the maximum extent permitted by law... waives any right to any individual monetary recovery... in any proceeding brought based on any communication by Employee to any federal, state or local government agency or department. (Emphasis added) The SEC held that the 2011 and 2013 agreements violated Rule 21F-17 by directly target[ing] the SEC s whistleblower program by removing the critically important financial incentives that are intended to encourage persons to communicate directly with the Commission staff about possible securities law violations. Despite the fact that the language does not directly mention the SEC program and only removes financial incentives to the extent permitted by law, the SEC read Rule 21F-17 expansively. It did not matter that the SEC was unaware of anyone actually impeded from communicating with the SEC or that the company had taken no action to enforce the provisions. On January 17, 2017, the SEC ordered BlackRock, Inc. 9 to pay a $340,000 penalty for inclusion of a bounty waiver in its separation agreements. The SEC ordered BlackRock to contact 1067 former employees to provide a link to the Order and inform them that the separation agreements that they had signed between October 14, 2011 and March 31, 2016 do not prevent them from obtaining a whistleblower award from the SEC. The fact that the company had voluntarily altered its agreements prior to the SEC s enforcement action did not dissuade the SEC from pursuing it

9 On January 19, 2017, the SEC ordered Homestreet, Inc. 10 to pay $500,000 in a civil penalty for, among other things, including common EEOC waiver language in certain severance agreements. The language was as follows: o This release shall not prohibit Employee from filing a charge with the [EEOC] or discussing any matter relevant to Employee s employment with any government agency with jurisdiction over the Company but shall be considered a waiver of any damages or monetary recovery therefrom. o As a result, the company revised its agreements as follows: Employee understands that nothing contained in this Agreement limits Employee s ability to file a charge or complaint with any federal, state or local government agency or commission ( Government Agencies ). Employee further understands that this Agreement does not limit Employee s ability to communicate with any Government Agencies or otherwise participate in any investigation or proceeding that may be commenced by any Government Agency including providing documents or other information without notice to the Company. This Agreement does not limit the Employee s right to receive an award for information provided to any Government Agencies. F. Further SEC Enforcement Efforts On Oct. 24, 2016, the SEC s Office of Compliance Inspections and Examinations OCIE issued an alert entitled Examining Whistleblower Rule Compliance. 11 The alert announced that it would be examining registered investment advisors and registered broker-dealers and reviewing, among other things, compliance manuals, codes of ethics, employment agreements, and severance agreements to determine whether provisions in those documents pertaining to confidentiality of information and reporting of possible securities law violations may raise concerns under Rule 21F-17. The alert explicitly states that it would assess provisions that: (a) require an employee to represent that he or she has not assisted in any investigation involving the registrant; (b) prohibit any and all disclosures of confidential information, without any exception for voluntary communications with the Commission concerning possible securities laws violations; (c) require an employee to notify and/or obtain consent from the registrant prior to disclosing confidential information, without any exception for voluntary communications with the Commission concerning possible securities laws violations; or

10 (d) purport to permit disclosures of confidential information only as required by law, without any exception for voluntary communications with the Commission concerning possible securities laws violations. G. Defend Trade Secrets Act Defend Trade Secrets Act (DTSA) (codified at 18 U.S.C. 1836(b)) On May 11, 2016, the Defend Trade Secrets Act became effective providing for a federal cause of action for owners of trade secrets that have been misappropriated. The Act includes robust remedies and whistleblower protection provisions that require, in part, employers give affirmative notice to employees and contractors about their immunity under the Act in the event they disclose trade secrets to the government or lawyers in connection with a suspected violation of law or for retaliation for reporting a suspected violation of law. Failure to give notice could result in denial of damages (up to two times actual damages) and attorneys fees for willful or malicious violations. H. Investigations and the Attorney Client Privilege In re Kellogg Brown & Root, Inc., 796 F.3d 137 (D.C. Cir. 2015), cert denied, 136 S. Ct. 823 (2016) Harry Barko worked for KBR as a defense contractor. In 2005, he filed a False Claims Act complaint against KBR and KBR-related corporate entities. He alleged that KBR and certain subcontractors defrauded the U.S. government by inflating costs and accepting kickbacks while administering military contracts in wartime Iraq. During discovery Barko sought documents related to KBR s internal investigation into the alleged fraud. The D.C. Circuit held that the district court erred when it concluded that KBR waived the attorney client privilege and work product protection. The court evaluated whether review of the documents by the company s Vice President for Legal constituted waiver of the attorney-client privilege. The Vice President was designated as the Rule 30(b)(6) witness for topics related to the company s internal investigation and reviewed the privileged internal investigation documents before a deposition. The district court found that his review of internal investigation documents constituted waiver even though he never testified to their contents. The D.C. Circuit reversed. It held that the district court s application of Federal Rule of Evidence 612 was inappropriate since the witness at issue did not use a writing to refresh memory. Id. at 143. Here, the witness reviewed the internal investigation documents but never relied on them to answer questions at the deposition. Moreover, the D.C. Circuit held that in any case, waiver is inappropriate where the party asserting waiver caused the privileged documents to be placed at issue in a deposition: Barko cannot overcome the privilege by putting [the COBC investigation] in issue at the deposition, and then demanding under Rule 612 to see the 10

11 investigatory documents the witness used to prepare. Allowing privilege and protection to be so easily defeated would defy reason and experience and potentially upend certain settled understandings and practices about the protections for such investigations... (internal quotations and citations omitted). Id. at 145. I. Employee Theft of Employer Documents Brown Jordan International, Inc. v. Carmicle, 846 F.3d 1167 (11th Cir. 2017) The former employee repeatedly accessed other employees accounts with a generic password (being used by the company to transition to a new service provider) and took screenshots with his personal ipad of hundreds of s over a period of months. Not long thereafter, the employee wrote a letter to the company s board of directors accusing senior management of wrongdoing. After an investigation, the company terminated the former employee s employment, principally because of his pilfering of company . The district court, in Brown Jordan International, Inc. v. Carmicle, No. 14-CV-60629, 2016 U.S. Dist. LEXIS (S.D. Fla. Mar. 1, 2016), aff d, 846 F.3d 1167 (11th Cir. 2017), granted summary judgment for the employer as to most of the former employee s claims, including his whistleblower claims under Kentucky law. Following trial, the district court held that the employee violated the Stored Communications Act ( SCA ) and Computer Fraud Abuse Act ( CFAA ) when he surreptitiously accessed s of others without authorization and awarded Brown Jordan over $76,000 in actual and punitive damages attorneys fees and costs under the SCA (the determination of the amount for which is pending) as well as monetary sanctions for discovery abuse. The district court also dismissed all of the employee s remaining claims. After the former employee s appeal, on January 25, 2017, the Eleventh Circuit issued an opinion, joining the Fourth and Sixth Circuits in holding that a loss under the CFAA includes responding to the offense, even if there is no interruption of service. On the SCA claim, the Eleventh Circuit concluded that Carmicle did not have authorization to exploit a generic password and surreptitiously access s of others and that the other issue he raised had been waived. The Eleventh Circuit further held that the District Court correctly granted summary judgment for Brown Jordan on Carmicle s wrongful discharge claim. Erhart v. BofI Holding, Inc., No. 15-CV BAS-NLS, 2017 WL (S.D. Cal. Feb. 14, 2017) In Erhart, the Southern District of California granted in part and denied in part a company s summary judgment motion against whistleblower plaintiff Charles Erhart, an internal auditor. Erhart used his personal g-mail account to files containing 11

12 confidential BofI information to his personal g-mail address and ed files to his mother. Moreover, he printed copies and/or downloaded company documents to his and/or his girlfriend s personal computer including customer banking information, internal audit reports, audit communications, wire transfer details, account lists, and portions of loan files. He claimed he did so for safekeeping and later provided the information to the government. Erhart brought a whistleblower retaliation action against defendant BofI Holding, Inc. which countersued, alleging (among other things) breach of a confidentiality agreement, and violation of California state law and the Computer Fraud and Abuse Act by publishing confidential information and deleting hundreds of files from his company laptop. Erhart raised several affirmative defenses relating to whistleblower protections. The court examined five categories of Erhart s conduct: Providing information to the government. In denying summary judgment, the court held any attempt to enforce the [confidentiality] agreement as to this conduct would violate the SEC's rule prohibiting BofI from enforcing, or threatening to enforce, a confidentiality agreement to impede Erhart from communicating with the SEC. Consequently, as to these actions, the public policy in favor of whistleblower protection clearly outweighs the interest in the enforcement of the agreement, and the agreement is unenforceable. Id. at *10 (internal citations omitted). Appropriating BofI's files. The court noted that there is merit to a public policy exception to confidentiality agreements to protect whistleblowers who appropriate company documents... the Court recognizes the strong interest in the enforcement of confidentiality agreements like the one signed by Erhart. But at the same time, whistleblowers often need documentary evidence to substantiate their allegations. The court noted, that relevant documents taken from an employer not only can provide potentially valuable evidence of a possible securities violation, but also can help the SEC confirm the veracity of the whistleblower s information and better distinguish between tips that warrant significant attention and those that do not... Thus, it concluded that a genuine issue for trial existed as to this conduct and denied summary judgment. Id. at *12. The Erhart court acknowledged prior cases enforcing confidentiality agreements against employees who argued that their self-help discovery was protected by whistleblower retaliation statutes. For example, in JDS Uniphase Corp. v. Jennings, 473 F. Supp. 2d 697 (E.D. Va. 2007), a federal court applied California law and held that a whistleblower cannot pilfer an employer s proprietary documents in violation of their contract merely because it might help them blow the whistle on an employer s violations of law, real or imagined. Id. at 702. Further, in Cafasso v. General Dynamics C4 Sys., Inc., 637 F.3d 1047, 1062 (9th Cir. 2011), the Ninth Circuit declined to adopt a whistleblower-based exception to confidentiality agreements and upheld summary judgment in favor of an employer s claim against an employee for breaching its confidentiality agreement. In addition to the cases cited by Erhart, the U.S. Department of Labor Administrative Review Board has affirmed the dismissal of a SOX whistleblower retaliation claim on the 12

13 grounds that the employee s secret tape recording and downloading of company data violated the company s employee handbook. See Galinsky v. BOA, No (U.S. Dep t of Labor Admin. Review Bd. Oct. 31, 2012). Sending BofI s information to his mother and placing BofI s information on his livein girlfriend's computer. The court noted that it is undisputed that Erhart sent an to his mother that included a spreadsheet containing BofI customers social security numbers and used his live-in girlfriend's computer to access BofI documents. The court took into account Erhart s declaration that he was fearful that the Bank would delete or alter material information, based on what [he'd] seen management do in the past and that he was informed that the bank was breaking into his locked cabinets and computer. He also stated that he feared upper management had accessed [his] work laptop remotely. Viewing the evidence in the light most favorable to Erhart, the Court concluded a factfinder could determine that the information transmitted by Erhart was relevant to his whistleblower reports, that this information was transmitted because he had a reasonable concern the information might be destroyed, and that Erhart's motivation for forwarding the information was to support his allegations of wrongdoing. Id. at 12. Purportedly providing information to the press. BofI also alleged that Erhart disclosed confidential information to the New York Times in violation of his confidentiality agreement. The Court relied on a recent 9th Circuit case, Tides v. Boeing Co., 644 F.3d 809, 811 (9th Cir. 2011), which held [l]eaks to the media are not protected by Sarbanes Oxley's anti-retaliation provision, and thus there was no genuine issue of material fact as to this conduct. Id. at 811. Disclosing information in his publicly-filed whistleblower retaliation complaint. The Court concluded that disclosure is protected activity so long as it was reasonably necessary for Erhart to disclose this information in his complaint to pursue his whistleblower retaliation claims. BofI argued Erhart disclosed confidential information in his complaint in order to inflict maximum damage on the company and not simply to pursue his whistleblower retaliation claims. The court concluded that this determination turned on issues of fact and therefore denied summary judgment. Erhart, at *17. 13