Any lawyer who is looked upon within his or her firm or in-house legal department as the resident Sarbanes-Oxley Act expert has likely encountered questions about the applicability of the act to private companies. Considering the general information available in the news media, many clients, and not a few lawyers, may assume that Sarbanes-Oxley applies only to publicly traded companies in all circumstances. And it is correct to understand that the legislative impetus behind the passage of the act was a desire to protect the shareholders of publicly traded companies, and that nearly all of its provisions apply only to such companies.

Taking this thought too far, however, risks ignoring the language of �806(a) of the act, 18 U.S.C. 1514(a), which expressly prohibits retaliation against employees who have engaged in activity protected under the act by “officers, employees, contractors, sub-contractors, or agents” of publicly traded companies covered by the act. Indeed, there are reported decisions supporting the view that private companies can be sued under �806(a) in some situations, and the issue is far from being definitively resolved.

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