Fifth Circuit Affirms Summary Judgment On SOX Whistleblower Claim

On February 15, 2019, the Fifth Circuit affirmed the grant of summary judgment in favor of Andeavor Corporation f/k/a Tesoro Corporation on a SOX whistleblower claim, concluding that the plaintiff lacked an objectively reasonable belief that the company was misreporting its revenue to the SEC. Wallace v. Andeavor Corp., No. 17-cv-50927.

Background

Plaintiff, a Vice President of Pricing and Commercial Analysis, was a sub-certifier of the company's financial statements. He was tasked with investigating the company's financial performance in various industry segments, and purportedly concluded that it improperly booked taxes as revenues in certain internal reporting channels. On February 8, 2010, he reported his concerns to his supervisor. Yet, shortly thereafter, he certified that he knew of no reason why the company's 2009 10-K could not be certified. That 10-K, which was filed on March 1, 2010, included a statement disclosing that certain taxes were included in