Law Commons^™

Confidentiality And Whistleblowing, Richard Moberly

Nebraska College of Law: Faculty Publications

I. A (BRIEF) HISTORY OF WHISTLEBLOWING IN THE LAST FIFTEEN YEARS: A. Antiretaliation Protections, B. Bounty Provisions. C. Structural Disclosure Channels

II. THE CORPORATE RESPONSE. : A. Using Confidentiality Provisions, B. Results from Broad Study of Settlement Agreements—1. Brief Background on the Study, 2. The Prevalence of Confidentiality Provisions.

III. GOVERNMENT COUNTERMOVES: A. SEC Rule 21F-17, B. OSHA Guidance, C. Government Contractors

Companies often require confidentiality from their employees. Maintaining corporate secrets helps protect intellectual property and gives a company an edge in a competitive marketplace. The law generally supports this corporate desire for secrecy through statutes that prohibit …

Sarbanes-Oxley's Whistleblower Provisions: Ten Years Later, Richard Moberly

Nebraska College of Law: Faculty Publications

Whistleblower advocates and academics greeted the enactment of the Sarbanes-Oxley Act's whistleblower provisions in 2002 with great acclaim. The Act appeared to provide the strongest encouragement and broadest protections then available for private-sector whistleblowers. It influenced whistleblower law by unleashing a decade of expansive legal protection and formal encouragement for whistleblowers, perhaps indicating societal acceptance of whistleblowers as part of a broader law enforcement strategy. Despite these successes, however, Sarbanes-Oxley's greatest lesson derives from its two most prominent failings. First, over the last decade, the Act did not sufficiently protect whistleblowers who suffered retaliation. Second, despite the massive increase in …

The Supreme Court's Anti-Retaliation Principle, Richard E. Moberly

Nebraska College of Law: Faculty Publications

In five cases issued during the last five years, the Supreme Court interpreted statutory anti-retaliation provisions broadly to protect employees who report illegal employer conduct. These decisions conflict with the typical understanding of this Court as pro-employer and judicially conservative. In a sixth retaliation decision during this time, however, the Court interpreted constitutional anti-retaliation protection narrowly, which fits with the Court’s pro-employer image but diverges from the anti-retaliation stance it appeared to take in the other five retaliation cases. This Article explains these seemingly anomalous results by examining the last fifty years of the Supreme Court’s retaliation jurisprudence. In doing …