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Two recent Court of Appeals cases highlight potential pitfalls in whistleblower claims brought under Section 806 of the Sarbanes-Oxley Act of 2002 (SOX), 18 U.S.C. §1514A. In Bechtel v. Administrative Review Board, 2013 WL 791334 (2d Cir. March 5, 2013), the U.S. Court of Appeals for the Second Circuit clarified the burdens of proof and elements of whistleblower claims in administrative proceedings, affirming an administrative dismissal of a claim despite the ALJ’s use of an incorrect legal standard. In Wiest v. Lynch, 2013 WL 1111784 (3d Cir. March 19, 2013), a federal court action, the U.S. Court of Appeals for the Third Circuit addressed whether the plaintiff had engaged in "protected activity." The majority, over a vigorous dissent, reversed the district court’s dismissal of a whistleblower claim, finding the claimed protected activity met the prima facie pleading standard. The Wiest case highlights the uncertainties created for employers by the SOX whistleblower provision and the need for employers to carefully document termination decisions, particularly where an employee has taken any action that could be construed to constitute "whistleblowing."

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