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Whistleblower Law Blog

Topic: The Employment Law Group, P.C.

TELG Principal Attorney, Adam Augustine Carter, Quoted in The Richmond Times-Dispatch on Recent $819,000 Verdict in False Claims Whistleblower Retaliation Suit

The Richmond Times-Dispatch recently reported on last week’s $819,000 jury verdict in favor of a former University of Virginia research neuroscientist represented by The Employment Law Group® law firm, Dr. Weihua Huang, who acted reported the alleged misuse of federal research grant dollars and suffered retaliation for his whistleblowing.

Dr. Huang’s attorney, Adam Augustine Carter, told the Richmond-based paper that the jury’s decision in favor of the whistleblower is important as a precedent for cases brought under the federal False Claims Act since there have been “precious few of these cases that go to trial and get a verdict.”

According to Mr. Cater, “this case should serve to encourage other courageous whistleblowers to report abuse in federal grants to come forward.”  While doing so, Carter noted, “is often tough, Dr. Huang’s courage has set an example.”

The article, entitled “Jury awards $800,000 to U.Va. researcher”, appeared in the October 14, 2012 edition of the Richmond Times-Dispatch.

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The Charlottesville Daily Progress Quotes TELG Principal Attorney, Adam Augustine Carter, on Recent $819,000 Verdict in Huang Whistleblower Retaliation Case

Following last week’s $819,000 jury verdict in favor of former University of Virginia research scientist Dr. Weihua Huang for retaliation he experienced when blowing the whistle on the alleged misuse of federal grant dollars, The Daily Progress interviewed Dr. Huang’s attorney, Adam Augustine Carter of The Employment Law Group® law firm.

The Charlottesville-based publication quoted Mr. Carter as stating that “this verdict is important to the entire [research] grant community because, on these grants, levels of efforts are assigned and the principal investigator is responsible for the use of money. That is the person who needs to be responsible and, in this case, that responsibility was taken over by the lab director.”

In his remarks to the paper, Mr. Carter also highlighted that the decision is important for setting precedent for cases filed under the federal False Claims Act as “there are precious few of these cases that go to trial and get a verdict.”

The Huang verdict is a precedent-setting case as it is one of the few lawsuits tried to a verdict since Congress amended the anti-retaliation provisions of the False Claims Act in May 2009.

The article, entitled “UVa whistleblower wins $820,000 in federal lawsuit”, originally appeared in the October 12, 2012 edition of The Daily Progress.

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A Virginia Jury Awards over $819,000 to The Employment Law Group® Law Firm Client Dr. Weihua Huang in False Claims Act Whistleblower Retaliation Verdict

On October 12, 2012, a federal jury in Virginia awarded Dr. Weihua Huang $819,830 in his False Claims Act suit which accused two University of Virginia administrators of retaliating against him when he blew the whistle on purported misuse of a federal research grant.  In his suit, the former National Institute of Health (NIH) research grant recipient and University of Virginia scientist alleged that his supervisors declined to renew his contract because he had raised questions about the alleged misuse of research grant funds to his supervisors.

In 2009, Dr. Huang was awarded a NIH grant for research relating to the genetics of nicotine addiction and smoking.  Dr. Huang claimed that grant funds were charged without authorization and for work that was never actually performed.  After speaking out about the alleged misused of federal research funds, Dr. Huang’s supervisors terminated him citing performance issues.

According to Dr. Huang’s attorney, Adam Augustine Carter, “this case should encourage other whistleblowers that know of abuse in federal grants to come forward – while it may be tough for people to come forward in such situations, Dr. Huang’s courage has set an example.”

Dr. Huang’s recent jury award is of particular significance to whistleblowers as it is one of the only lawsuit tried to verdict since Congress amended the anti-retaliation provisions of the False Claims Act in 2009.

The presiding judge, Judge Norman K. Moon of the U.S. District Court for the Western District of Virginia, has yet to determine whether or not to grant Dr. Huang’s reinstatement to his prior position or whether he will be compensated with his lost earnings.

The Employment Law Group® law firm’s whistleblower attorneys have helped many clients file suit against employers that fraudulently bill the U.S. government, and have established favorable precedents under the retaliation provision of the False Claims Act.

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Recent Kramer Decision in Favor of a Dodd-Frank Whistleblower Likely to Strengthen Anti-Retaliation Lawsuits Brought by Financial Whistleblowers, Law360 Reports

Law360 recently indicated in its lead story the broad implications of the recent ruling in Kramer v. Trans-Lux for financial whistleblowers.  The Kramer decision marked the first time a Dodd-Frank whistleblower’s retaliation claim has survived a motion to dismiss when, earlier this week, a federal judge embraced an expansive definition of whistleblower under Dodd-Frank.

The Kramer decision joins three other court decisions that have focused on the anti-retaliation provisions of Dodd-Frank as the latest in a series of decisions that broadly interpret who qualifies as a whistleblower.  According to Law360’s report, many whistleblower advocates believe that the Kramer decision will result in an uptick in the filing of whistleblower claims against employers.

These developments are favorable for financial whistleblowers who face retaliation from their employers for reporting fraud or illegal conduct because by filing a retaliation claim under Dodd-Frank rather than the Sarbanes-Oxley Act, plaintiffs have a longer statute of limitations and may bring their claims directly in federal court without having first to proceed through an administrative process at the Department of Labor.

In sum, the Kramer decision will serve as additional authority for employees who seek to bring Dodd-Frank complaints after having suffered retaliation when reporting violations to their employers internally, as well as to the Securities and Exchange Commission (SEC).

The article, “Dodd-Frank Whistleblower Ruling May Spark Retaliation Suits” appeared in the September 27, 2012 edition of Law360.

The whistleblower who brought the suit, Richard Kramer, is represented by The Employment Law Group® law firm’s Nicholas Woodfield and R. Scott Oswald.

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Law360 Quotes Nicholas Woodfield on First-of-Its-Kind Ruling in Whistleblower Protection Case under Dodd-Frank

Law360 recently reported in its lead article on Kramer v. Trans-Lux Corp. , the first court decision allowing a Dodd-Frank Act retaliation suit to survive a motion to dismiss.  In the article, Law360 quoted Nicholas Woodfield, principal at The Employment Law Group® law firm and attorney for Richard Kramer, the whistleblower who brought the lawsuit.

Mr. Kramer, a former executive for Trans-Lux, was fired after reporting to the company’s board of directors and the Securities and Exchange Commission that his supervisors has run afoul of the company’s pension plan.

Trans-lux had argued that Kramer was not a whistleblower as defined in the Dodd-Frank law.  The court, however found that Kramer was protected by against retaliation as a whistleblower and that “Trans-lux’s interpretation would dramatically narrow the available protections to potential whistleblowers.”

Kramer’s attorney, Mr. Woodfield told Law360 that he is “pleased” with the decision and that he regards it as “a fair decision that accurately reflects the goals of the legislators in implementing Dodd-Frank.”  Woodfield also noted that “whether Mr. Kramer will prevail at trial is another issue, but [the decision] fairly recognizes that it was the intent of Congress to protect [whistleblowers] like him.”

The article, “Judge Backs Broad Whistleblower Definition Under Dodd-Frank” appeared in the September 26, 2012 edition of Law360.

The Employment Law Group® law firm has an extensive nationwide whistleblower practice representing employees who have been victims of retaliation.

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Kramer v. Trans-Lux Corp., First Dodd-Frank Claim to Survive Motion to Dismiss in Federal Court

On Tuesday, September 25, the U.S. District Court for the District of Connecticut ruled that the definition of “whistleblower” under the Dodd-Frank Act encompasses individuals who make disclosures required or protected under the Sarbanes-Oxley Act or the Securities Exchange Act of 1934.  Plaintiff’s Richard Kramer’s case against former employer Trans-Lux is the first Dodd-Frank claim to survive a motion to dismiss in federal court.  Kramer v. Trans-Lux Corp., 3:11cv1424 (D. Conn. Sept. 25, 2012).   Scott Oswald and Nick Woodfield, principals with The Employment Law Group, represent Mr. Kramer.

Background

Kramer served as Vice President of Human Resources and Administration for Trans-Lux for eighteen years.  He reported to Chief Financial Officer Angel Toppi.  Kramer and Toppi comprised Trans-Lux’s pension plan committee.  Trans-Lux’s pension plan requires at least three members on the committee, and Kramer repeatedly advised Toppi that the committee needed at least one additional member.  Toppi repeatedly rejected Kramer’s advice.  In addition to serving on the committee, Toppi served as the sole trustee of the pension plan.  Kramer was concerned that this created a conflict of interest.

On four occasions between 2008 and 2011, Trans-Lux amended its pension plan.  On two of those occasions the two-person committee approved the amendments, although the plan requires approval by a three-person committee.  In addition, Toppi failed to bring the 2009 amendments to the board of directors for approval and failed to file them with the SEC.

In March 2011, Toppi ordered Kramer not to notify the Pension Benefit Guaranty Corporation that the company had missed a contribution.  This notification would have resulted in an immediate penalty to Trans-Lux.  Later that month, Kramer notified Trans-Lux executives of all his concerns with Trans-Lux’s failure to adhere to its pension plan.  In May 2011, he brought his concerns to the board of directors’ audit committee.  Finally, he sent two letters to the SEC, notifying them of Trans-Lux’s violations.

As soon as Kramer expressed his concerns, Trans-Lux executives began to retaliate against him.  They reprimanded him, reassigned his subordinates to other executives, stripped him of his responsibilities, and finally terminated him.

“Whistleblower” Under Dodd-Frank

Trans-Lux argued in its motion to dismiss that Kramer did not report Trans-Lux’s violations in the manner that the SEC requires, and therefore did not meet the definition of a “whistleblower.”  Kramer argued that individuals who make disclosures  that are required or protected under the Sarbanes-Oxley Act or the Securities Exchange Act of 1934 meet this definition regardless of the manner in which they make their disclosure.

The court agreed with Kramer’s argument, citing to a final rule promulgated by the SEC on August 12, 2011.  The court explained:

Trans-Lux’s interpretation would dramatically narrow the available protections available to potential whistleblowers. In order to have provided information in the manner provided by the SEC, an individual would have either had to submit the information online, through the Commission’s website, or by mailing or faxing a Form TCR (Tip, Complaint or Referral). Mailing a regular letter is insufficient…. Such a reading seems inconsistent with the goal of the Dodd-Frank Act, which was to “improve the accountability and transparency of the financial system,” and create “new incentives and protections for whistleblowers.”

The court found that Kramer’s disclosures were required under Sarbanes-Oxley and relate to violations of securities laws and therefore are protected under Dodd-Frank regardless of the manner in which they were made.  The court further clarified that the Dodd-Frank Act expands the protections of Sarbanes-Oxley, and that this expansion is a permissible construction of the statute.

Related U.S. District Court Decisions

On April 3, 2012, the U.S. District Court for the Middle District of Tennessee confirmed that the term “whistleblower” includes individuals who make internal disclosures of security law violations, as long as the disclosures are made in accordance with the “certain laws within the SEC’s jurisdiction.”  Nollner v. S. Baptist Convention, Inc., 852 F. Supp. 2d 986, 993 (M.D. Tenn. 2012).  However, the court found that plaintiffs Ron and Beverly Noller were not whistleblowers under Dodd-Frank, because their employer does not issue stock and was not subject to the SEC’s jurisdiction.   Id. at 997.

On May 4, 2011, the U.S. District Court for the Southern District of New York reached the same decision as the Noller court regarding internal disclosures and therefore granted plaintiff Patrick Egan leave to amend his complaint to include a claim for retaliation under Dodd-Frank.  Egan v. TradingScreen, Inc., 10 CIV. 8202 LBS, 2011 WL 1672066 (S.D.N.Y. May 4, 2011).

On June 28, 2012, the U.S. District Court for the Southern District of Texas declined to decide whether plaintiff Khaled Asadi met the definition of a “whistleblower” under Dodd-Frank for making protected disclosures under Sarbanes-Oxley.  Asadi v. G.E. Energy (USA), LLC, CIV.A. 4:12-345, 2012 WL 2522599 (S.D. Tex. June 28, 2012).  Instead, the court decided that the statute did not protect plaintiff Asadi’s disclosures because they occurred outside of the United States.  Id.

Richard Kramer is represented by The Employment Law Group law firm’s Nicholas Woodfield and R. Scott Oswald.

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Law360 Interviews Nicholas Woodfield on Federal Circuit’s Recent Decision to Limit Employees’ Right to Appeal Security Clearance Determinations

Nicholas Woodfield, principal of The Employment Law Group® law firm, was recently interviewed by Law360 regarding a recent Federal Circuit decision which held that national security concerns may limit the review of employment decisions made by federal agencies, even by employees who do not have access to classified information. The decision is widely anticipated to limit the ability of federal employees to contest adverse personnel decisions.

The decision, Berry v. Conyers, held that the Supreme Court’s decision in Department of the Navy v. Egan prohibits the Merits System Protection Board (MSPB) from reviewing a federal agency’s decision relating to an employee’s eligibility to hold a sensitive position, irrespective of whether the position explicitly requires having access to classified materials.

According to Mr. Woodfield, the “Federal Circuit majority’s discussion of what could be construed as sensitive information that implicates national security demonstrates just how elastic the category can be.”

For example, according to Woodfield, a distinction can be drawn “between an employee working in a commissary on a military base and an employee at a nearby 7-11 with the explanation that stock levels of certain unclassified items at the commissary, such as sunglasses, could hint at deployment orders to a particular region for an identifiable unit.”

“What the Federal Circuit uses as an example,” Woodfield continued, “is the perfect example of how the narrow limit set forth in Egan can be expanded to just about anything.  Ultimately, he noted, “you can use that creative logic to strip people of their rights.”

Regarding the issue of whether the Federal Circuit’s decision will be challenged, Woodfield observed that “if the employees do opt to pursue a further appeal, given the strength of the dissent, the case could be a good candidate for en banc review”.

At stake in the case “is essentially a battle between two philosophies,” Woodfield explained:

“The majority is saying national security should expansively trump personal rights,  the minority is saying national security should narrowly trump personal rights. Which way the Federal Circuit might hold on rehearing is anyone’s guess.”

The article, entitled “Fed. Circ. Limits Federal Workers’ Employment Appeal Rights”, appeared in the August 22, 2012 edition of Law360.

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R. Scott Oswald, Managing Principal of The Employment Law Group® Law Firm, Selected for Inclusion in The Best Lawyers in America 2013

R. Scott Oswald, managing principal of The Employment Law Group, P.C., was recently selected by his peers for inclusion in The Best Lawyers in America® 2013 for his work in the area of Labor & Employment Litigation.

Over the course of three decades Best Lawyers has been regarded by both the public and by the legal profession as one of the most credible guides to legal excellence in the United Stated.  The selection process is based on a rigorous peer-review survived consisting of over 4 million confidential evaluations by lawyers throughout the country.

In addition to being described by The American Lawyer as “the most respected referral list of attorneys in practice,” inclusion by Best Lawyers is widely considered to be a significant honor because no fee or purchase is required and because of its transparent survey process in selecting recipients.

Mr. Oswald’s selection will be included in The Best Lawyers in America’s 19th edition.

The Employment Law Group® law firm is a leader in the field of whistleblower law and has an extensive nationwide whistleblower practice representing employees who have exposed illegal activity by their employer.

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Law360 Interviews R. Scott Oswald on Increase in Whistleblower Retaliation Claims Brought by Defense Contractors

R. Scott Oswald, managing principal of The Employment Law Group® law firm, was recently interviewed by Law360 regarding a reported increase in whistleblower retaliation claims brought by defense contractors.  The Law360 article credited the increased amount of reprisal complaints by defense contractors who to recent changes to federal law and regulations.

In addition to “changes to the law [that] may have added more protections,” Mr. Oswald also cited “the amount of defense-related work that’s been outsourced to private companies in connection with the war efforts in Iraq and Afghanistan [as another] also a key factor in the rise in defense contractor retaliation claims.”

Whistleblower attorney Oswald noted that “companies may use standards or practices that are perfectly acceptable in the private realm but don’t work when dealing with defense contracts.”  This often “puts employees in a bind [as] managers or executives may ask for classified information about projects they aren’t authorized to have access to, and take umbrage when a subordinate won’t comply with that request.”

“We have individuals who are paid by U.S. government contractors while at the same time take an oath to the U.S. government to maintain national security secrets, so there is this inherent conflict,” Oswald said.

Oswald pointed out the case of William Holowecki, a former Avaya Government Solutions security professional who confronted such a conflict when his manager requested classified information.

The Employment Law Group® represents Mr. Holowecki and recently filed a lawsuit against Avaya which alleges that the company ran afoul of the anti-retaliation provision of the False Claims Act by terminating him for voicing concern that security guards having access to restricted areas.  Holowecki also claims he was fired because he complained to his employer that failing to disclose the security guards’ access to restricted areas amounted to fraud against the U.S. government.  Finally, Holowecki alleged that Avaya terminated him on account of his refusal to disseminate classified material to a company manager.

According to attorney R. Scott Oswald, “employers would also be well-served to have a clearly articulated complaint procedure that requires managers to make higher-ups aware of potential violations and ensures that the company gets notified officially and directly about complaints.”

Without such a procedure, “a corporation may not be aware that there was has been a complaint because it is not brought to the attention of compliance or risk management professionals.”

Oswald also highlighted the importance complaint procedures for workers, saying that it is “important for employees to know that the company is going to effectively investigate, evaluate and remediate their complaints” as ensuring worker confidence in an employer’s handling of complaints makes workers less likely to seek out outside counsel or go to an outside government agency, and more likely to keep their complaints within the company.

The article, entitled “Defense Contractors Face Rising Wave Of Retaliation Claims”, appeared in the August 10, 2012 edition of Law360.

The Employment Law Group® law firm’s whistleblower attorneys  have helped many clients file suit against employers that fraudulently bill the U.S. government, and have established favorable precedents under the retaliation provision of the False Claims Act.

 

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Former Avaya Government Solutions Employee Claims He Suffered Retaliation and Termination for Blowing the Whistle on Unauthorized Security Practices

According to Law360, a former employee of Avaya Government Solutions, William Holowecki, recently filed a whistleblower lawsuit against Avaya in the U.S. District Court for the Eastern District of Virginia.  Mr. Holowecki alleges that Avaya terminated his employment in retaliation for revealing what he claims were fraudulent reports that Avaya sent to federal agencies, in violation of the False Claims Act.

Mr. Holowecki alleges that Avaya eliminated his position as an information systems security officer in retaliation for his discovery and reporting of false reports that Avaya allegedly made to a government contractor relating to unauthorized access to restricted facilities at Avaya’s Virginia location.  Holowecki alleges that Avaya’s failure to report the security violations was in violation of its government contracts and, as a consequence, resulted in the government paying claims under the false information – a violation of the False Claims Act.  Mr. Holowecki’s suit also claims that Avaya fired him because of his refusal to allow unauthorized employees access to classified information.

In addition to claiming that Avaya terminated his employment because of his protected activities as a whistleblower under the FCA, Holowecki also claims that the company violated the Age Discrimination in Employment Act (ADEA) by replacing him with a younger and allegedly less-qualified employee.

Mr. Holoweck is seeking reinstatement to his prior position, as well as back pay and damages.  Mr. Holowecki is represented by attorneys at The Employment Law Group® law firm.

The Employment Law Group® law firm focuses in the areas of employment law and whistleblower protection law, has helped many clients file suit against employers that fraudulently billed the U.S. government, and has established favorable precedents under the retaliation provision of the False Claims Act.

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