Sixth Circuit Changes Course On Proof Required To Show Protected Whistleblower Activity Under SOX

The Sarbanes-Oxley Act (SOX) provides anti-retaliation protection to whistleblowers who engage in "protected activity." To engage in protected activity under SOX, the whistleblower must provide information to the Securities and Exchange Commission (SEC) or another law enforcement agency, to Congress or one of its members, or to a "person with supervisory authority" over the whistleblower. The information must pertain to "any conduct" which the whistleblower "reasonably believes" constitutes a violation of at least one of six federal fraud laws enumerated under SOX.  These laws are:

• 18 U.S.C. § 1348 (securities fraud);
• 18 U.S.C. § 1341 (frauds and swindles by mail);
• 18 U.S.C. § 1348 (wire, radio or television fraud);