Whistleblower Law: A Practitioner's Guide Detail

CHAPTER 1

False Claims Act: Qui Tam and Retaliation Claims
§ 1.01 Introduction

[1] Overview of the False Claims Act
[2] History and Amendments

§ 1.02 False Claims Act Liability and Qui Tam Suits

[1] Elements and Examples of False Claims Act Claims
[2] Statutory Bars to Qui Tam Actions
[3] Filing a Qui Tam Claim—The Litigation Process
[4] Damages and Penalties
[5] Relator’s Share in a Successful Qui Tam
[6] Settlement/Release of Qui Tam Claims

§ 1.03 FCA Retaliation Claims

[1] Prohibited Retaliation and Amendments
[2] Prima Facie Case
[3] Limitations Period for FCA Retaliation Claims and Procedural Issues Related to Filing
[4] Pleading Standard
[5] Remedies
[6] Settlement/Release of Section 3730(h) Claims

CHAPTER 2

Sarbanes-Oxley Act of 2002
§ 2.01 Overview

[1] Whistleblower Provision: Section 806
[2] Dodd-Frank Amendments to SOX

§ 2.02 Covered Employer

[1] Publicly Traded Companies
[2] Consolidated Subsidiaries
[3] Contractors, Subcontractors, and Agents
[4] Individual Liability

§ 2.03 Covered Employee

[1] Classification as Employee or Independent Contractor
[2] Extraterritorial Application of Employee Protections
[3] Enforceability of Pre-Dispute Arbitration Agreements with Respect to Covered Employees

§ 2.04 Prima Facie Case

[1] Protected Activity
[2] Adverse Action
[3] Causation

§ 2.05 Litigation Process

[1] Filing and Investigation of Complaint
[2] Determination and Review
[3] Kick-Out Provision
[4] Review of DOL Final Order by Federal Courts of Appeal
[5] Jury Trial

§ 2.06 Available Remedies

[1] Reinstatement
[2] Front Pay in Lieu of Reinstatement
[3] Back Pay
[4] Attorneys’ Fees
[5] Non-Economic and Compensatory Damages
[6] Punitive Damages

CHAPTER 3

The Dodd-Frank Wall Street Reform and Consumer Protection Act
§ 3.01 Overview

§ 3.02 Amendments to the Sarbanes-Oxley Act of 2002

§ 3.03 Securities and Exchange Commission Whistleblower Program

§ 3.04 Securities and Exchange Commission Anti-Retaliation Provision

[1] Scope of Protection
[2] Prima Facie Case
[3] Procedural Requirements
[4] Available Remedies

§ 3.05 Commodity Futures Trading Commission Whistleblower Program
§ 3.06 Commodity Futures Trading Commission Anti-Retaliation Provision
§ 3.07 Consumer Financial Protection Act Anti-Retaliation Provision
§ 3.08 Amendments to the False Claims Act

CHAPTER 4

Consumer and Investor Whistleblower Statutes
§ 4.01 Overview

§ 4.02 Consumer Product Safety Act and Consumer Product Safety Improvement Act of 2008

[1] CPSIA Anti-Retaliation Provision
[2] CPSIA Anti-Retaliation Provision Procedures

§ 4.03 Patient Protection and Affordable Care Act

[1] ACA Anti-Retaliation Provision
[2] ACA Anti-Retaliation Provision Procedures

§ 4.04 Consumer Financial Protection Act of 2010

[1] CFPA Anti-Retaliation Provision
[2] CFPA Anti-Retaliation Provision Procedures

§ 4.05 FDA Food Safety Modernization Act

[1] FSMA Anti-Retaliation Provision
[2] FSMA Anti-Retaliation Provision Procedures

CHAPTER 5

Nuclear and Environmental Whistleblower Statutes
§ 5.01 OSHA-Administered Nuclear Whistleblower Protections

[1] Overview
[2] Covered Employers and Employees
[3] Burden of Proof
[4] Respondent’s Affirmative Defense
[5] ERA Procedures
[6] NRC Investigation of Whistleblower Complaints
[7] OSHA-Issued Statistics on ERA Complaint Determinations

§ 5.02 OSHA-Administered Environmental Whistleblower Statutes

[1] Overview
[2] Burden of Proof
[3] Procedures
[4] Clean Air Act
[5] Comprehensive Environmental Response, Compensation and Liability Act of 1980
[6] Federal Water Pollution Control Act/Clean Water Act
[7] Safe Drinking Water Act of 1974
[8] Solid Waste Disposal Act
[9] Toxic Substances Control Act
[10] Asbestos Hazard Emergency Response Act of 1986
[11] Section 11(c) of the Occupational Safety and Health Act of 1970

CHAPTER 6

Transportation Industry Whistleblower Protection
§ 6.01 Overview

§ 6.02 Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (“AIR21”)

[1] Overview
[2] Covered Employers and Employees
[3] Protected Activity
[4] Adverse Actions
[5] AIR21 Procedures

§ 6.03 The Federal Railroad Safety Act of 1970 (“FRSA”)

[1] Overview
[2] Covered Employers and Employees
[3] Protected Activity
[4] Adverse Actions
[5] Relation to Other Laws and Remedies
[6] FRSA Procedures

§ 6.04 The Surface Transportation Assistance Act of 1982 (“STAA”)

[1] Overview
[2] Covered Employers and Employees
[3] Protected Activity
[4] Adverse Actions
[5] Relation to Other Laws and Remedies
[6] STAA Procedures

§ 6.05 The National Transit Systems Security Act of 2007 (“NTSSA”)

[1] Overview
[2] Covered Employers and Employees
[3] Protected Activity
[4] Adverse Actions
[5] Relation to Other Laws and Remedies
[6] NTSSA Procedures

§ 6.06 The Pipeline Safety Improvement Act of 2002 (“PSIA”)

[1] Overview
[2] Covered Employers and Employees
[3] Protected Activity
[4] Adverse Actions
[5] The PSIA Procedures

§ 6.07 The Seaman’s Protection Act (“SPA”)

[1] Overview
[2] Covered Employers and Employees
[3] Protected Activity
[4] Adverse Actions
[5] The SPA Procedures

§ 6.08 The International Safe Container Act (“ISCA”)

[1] Overview
[2] Covered Employers and Employees
[3] Protected Activity
[4] Adverse Actions
[5] The ISCA Procedures

§ 6.09 The Moving Ahead for Progress in the 21st Century Act (“MAP-21”)

[1] Overview
[2] Covered Employers and Employees
[3] Protected Activity
[4] Adverse Actions
[5] MAP-21 Procedures

CHAPTER 7

Other Federal Whistleblower Protection Statutes
§ 7.01 Overview

§ 7.02 Whistleblower Protection Act of 1989

[1] Overview
[2] Covered Employers and Employees
[3] Protected Disclosures
[4] Covered Personnel Action
[5] WPA Procedures

§ 7.03 Defense Contractor Whistleblower Protection Act

[1] Overview
[2] Covered Employers and Employees
[3] Protected Activity
[4] Adverse Actions
[5] Relation to Other Laws and Remedies
[6] Procedures

§ 7.04 Government Contractor and Subcontractor Protections

[1] Overview
[2] Covered Employers and Employees
[3] Protected Activity
[4] Adverse Actions
[5] Relation to Other Laws and Remedies
[6] NDAA Procedures

§ 7.05 American Recovery and Reinvestment Act of 2009

[1] Overview
[2] Covered Employers and Employees
[3] Protected Activity
[4] Adverse Actions
[5] Relation to Other Laws and Remedies
[6] ARRA Procedures

§ 7.06 Additional Whistleblower Protections for Federal Government Employees and Contractors

[1] Overview
[2] FBI Whistleblower Protections
[3] Department of Energy Whistleblower Protections
[4] Intelligence Community Whistleblower Protection Act of 1998
[5] Major Fraud Act of 1988
[6] Other Statutes

§ 7.07 Whistleblower Protections for Military Service Members and Employees

[1] Military Whistleblower Protection Act of 1988
[2] Nonappropriated Fund Instrumentality Employees of the Armed Forces

§ 7.08 Whistleblower Protections in the Financial Sector

[1] Federal Credit Union Act
[2] Financial Institutions Reform, Recovery, and Enforcement Act of 1989
[3] Annunzio-Wylie Anti-Money Laundering Act

§ 7.09 Industry-Specific Whistleblower Protections

[1] Overview
[2] Migrant and Seasonal Agricultural Worker Protection Act
[3] Federal Mine Safety and Health Act of 1977
[4] Surface Mining Control and Reclamation Act of 1977
[5] Emergency Medical Treatment and Active Labor Act
[6] Other Statutes

CHAPTER 8

Survey of State Whistleblower Statutes
§ 8.01 Overview

§ 8.02 Alabama