Sarbox’s whistleblower provisions were intended “to prevent recurrences of the Enron debacle and similar threats to the nation’s financial markets” by protecting those who report fraudulent activity that could damage innocent investors. That was the intent, at least. The reality is something else.
About 1,000 whistleblowing claims have been filed under Sarbox. Only 17 were determined after federal investigation to have merit and only six of this group have kept their wins after full evidentiary hearings before administrative law judges.
Nevertheless, the plaintiffs bar and others have ready answers for this extremely poor batting average. Critics assert that the 90-day statute of limitation for filing whistleblower claims is too short, the burden of proof placed on complaining employees is too high, that judges are reading the law too narrowly, or even that, as one law professor testified, the whistleblower provisions have “has failed to protect the vast majority of employees who file a Sarbanes-Oxley claim” because they rarely win.
None of these criticisms measure up. Sarbox whistleblowers rarely win because most claimants are using, or some might say, misusing, the law as a club in garden-variety workplace disputes.
Update: as does Professor Bainbridge: “Clearly, the whistle blower provisions significantly raised costs and created opportunities for employees to game the system.”