Alaska Employment Law

The 9th Circuit has issued its first opinion on the substantive requirements of a SOX whistleblower claim.  In the course of doing so, it also (1) held that an in-house lawyer may proceed with a federal law claim that may require the disclosure of attorney-client privileged communications; and (2) emphasized that the “sham affidavit rule” continues to be too broadly enforced.   

The panel’s holdings on the substantive aspects of SOX retaliation claims seem to be in line with those of other Circuits.  The court held that evidence construed favorably to the employees showed that:

(1) the employees had an objectively reasonably belief that the employer had engaged in securities fraud;

(2) the employees’ subjective belief in the fraud was not undercut by their statement that they believed the employer should have conducted a more thorough investigation to determine whether fraud had actually occurred; and

(3) the 2-3 months that intervened between their report of possible fraud and their terminations was sufficient (along with other facts) to support an inference of causation.

Van Asdale v. International Game Technology, 2009 WL ______ (9th Cir. Aug. 13, 2009)