Upholding a jury verdict in favor of a former U.S. Bancorp certified financial planner, the Sixth Circuit adopts the majority rule under the Sarbanes-Oxley Act (SOX) that - for a retaliation claim - employees need only show that they had an objectively reasonable belief, based on a totality of the circumstances, that they were reporting actionable fraud to a supervisor under § 1514A(a)(1). The panel rejects a standard, previously adopted in a nonprecedential opinion, that the employee's complaint "must definitively and specifically relate to one of the six enumerated categories" of fraud by "approximat[ing] the basic elements" of the fraud claim.
Over recent weeks, several banks that we are aware of have handed to thousands of their FINRA-regulated employees onerous new clawback agreements with the condition that if they do not sign them they will not receive their 2012 bonuses. This only the beginning of the bad news. These new clawback agreements contain provisions that allow the bank to clawback part of an employee's earned and paid cash bonus merely because the employee resigns during the ensuing two or three years. Thus, for example, a bank can clawback part of the 2012 bonus (already paid and taxed in 2013) if the employee leaves during 2015.
The Financial Industry Regulatory Authority (FINRA) announced on January 25, 2012 that it fined brokerage house Merrill Lynch, Pierce, Fenner & Smith $1 million for requiring employees to resolve disputes relating to "retention bonuses" in New York state courts. The FINRA rules require its member firms and their employees to arbitrate such disputes in FINRA arbitration.
In a recent arbitration decision, a panel of FINRA arbitrators awarded $3.25 million in damages, interest, and costs to a broker who had alleged defamation and other claims against his former employer. The decision (known as an "award") concluded the arbitration proceedings in the case of Gorter v. Questar Capital Corp, FINRA Case No. 08-03514 (award signed Jan. 13, 2012).