Revisiting 'Protected Activity' Under SOX and Dodd-Frank - The Collapse of the 'Definitive and Specific' Standard

Our Whistleblower Team continues to monitor the legal standard for pleading and establishing “protected activity” under the Sarbanes–Oxley Act (“SOX”) and the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”). As we have previously reported, most federal courts have adopted the United States Department of Labor’s Administrative Review Board’s (“Board”) 2011 loosening of the definition of “protected activity” covered by SOX in Sylvester v. Parexel Int’l LLC, ARB No. 07-123, ALJ Nos. 2007-SOX-039, -042 (ARB May 23, 2011), which abrogated its prior decision in Platone v. FLYi, Inc., ARB Case No. 04-154 (ARB Sept. 29, 2006) establishing the requirement that whistleblowing activity must “specifically and definitively” relate to the listed categories of fraud or securities violations.

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