Sarbanes-Oxley Whistleblower Provisions: A Study in Statutory Construction
October 1, 2007Jay P. Lechner
In the February 2007 issue of Engage, J. Gregory Grisham and James H. Stock, Jr. expertly explored the civil whistleblower provision of the Sarbanes-Oxley Act (“SOX”) and addressed criticisms that the scope of SOX’s civil whistleblower provision does not provide sufficient protection to employees. The authors concluded that plaintiffs have not fared well under this provision and that judges have “been reluctant to stray from the specific statutory language set out in Section 1514A….” The purpose of the instant article is not to recover the same ground already thoroughly addressed by Grisham and Stock, but rather to argue that judges have been inconsistent in their interpretation of Section 1514A, and in fact have often strayed from its specific statutory language to the detriment of employers. Furthermore, the ambiguous and incomplete language of both SOX’s civil and criminal whistleblower provisions invites further unintended anti-employer construction, unless judges are consistent in
strictly construing the statutory text....