February 2024 - cypherpunks@lists.ogf.org

Cleary And Vladeck Raskin Must Face Cuomo's Subpoena Bid
by Gunnar Larson 28 Feb '24

28 Feb '24

Cleary And Vladeck Raskin Must Face Cuomo's Subpoena Bid <https://www.law360.com/newyork/articles/1807304?nl_pk=ac5a3855-e47c-4403-be…> By Jack Karp Former New York Gov. Andrew Cuomo can continue his effort to force Cleary Gottlieb Steen & Hamilton LLP and Vladeck Raskin & Clark PC to turn over information about the women whose sexual misconduct accusations forced him to resign, a New York federal judge has said. Order attached | Read full article » <https://www.law360.com/newyork/articles/1807304?nl_pk=ac5a3855-e47c-4403-be…> | Save to favorites » <https://www.law360.com/newyork/articles/1807304?nl_pk=ac5a3855-e47c-4403-be…>

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U.S. Supreme Court Endorses Low Burden Of Proof For Whistleblowers - Whistleblowing - United States
by Gunnar Larson 28 Feb '24

28 Feb '24

https://www.mondaq.com/unitedstates/whistleblowing/1428262/us-supreme-court… In a landmark unanimous ruling late last week, Murray v. UBS Securities, LLC, et al. 601 U. S. ____ (2024), the U.S. Supreme Court held that whistleblowers do not need to prove their employer acted with "retaliatory intent" to be protected under the Sarbanes-Oxley Act. Instead, all whistleblower plaintiffs need to prove is that their protected activity was a "contributing factor" in the employer's unfavorable personnel action. Background The Sarbanes-Oxley Act is a federal law that was passed in 2002 with the goal of improving auditing and public disclosure in response to several accounting scandals which shook financial markets. In recognition of the role whistleblowers played in exposing the accounting scandals of the early-2000s, Congress passed Section 806, codified at 18 U.S.C. § 1514A, which prohibits publicly-traded companies from retaliating against whistleblowing employees. The U.S. Supreme Court in Lawson v. FMR, 571 U.S. 429 (2014), thereafter extended the whistleblower protections in § 1514A to employees of non-public contractors and subcontractors of a public company. The language of the Sarbanes-Oxley Act at issue in the Murray v. UBS Securities, LLC case was no employer subject to Sarbanes-Oxley "may discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee in the terms and conditions of employment because of" the employee's protected whistleblowing. Many statutes dealing with employment discrimination and retaliation apply a relatively high bar for employee-plaintiffs, requiring the plaintiff to show that the protected activity was a substantial factor in, or the "but-for cause" of the adverse employment action. Ruling The case involved the termination, in 2012, of a research strategist working for a New York securities firm, UBS Securities, LLC ("UBS"). After his termination, the research analyst filed a lawsuit against his former employer claiming his termination was retaliatory. The case went to trial and the jury found in favor of the plaintiff and issued an advisory verdict on damages, recommending that the plaintiff receive nearly $1 million. The court then adopted the jury's advisory verdict on damages and awarded an additional $1.769 million in attorney's fees. UBS appealed the decision to the Second Circuit, which vacated the jury's verdict and remanded for a new trial. The appellate court identified the central question as whether the Sarbanes-Oxley Act's antiretaliation provision requires a whistleblower-employee to prove retaliatory intent, and concluded that the answer was yes. The Second Circuit's opinion, requiring whistleblowers to prove retaliatory intent, placed that Circuit in conflict with the Fifth and Ninth Circuits, which had rejected such requirement; therefore, the U.S. Supreme Court decided to "resolve the disagreement." In a 9-0 decision, the U.S. Supreme Court reversed the decision of the Second Circuit and remanded, holding that a plaintiff does not need to prove retaliatory intent to prevail on a retaliation claim under the Act. A whistleblower who invokes 18 U.S.C. §1514A only bears the burden to prove that his protected activity "was a contributing factor in the unfavorable personnel action alleged in the complaint." If a plaintiff makes this showing, the burden then shifts to the defendant to show, by clear and convincing evidence, that it "would have taken the same unfavorable personnel action in the absence of " the protected activity. The U.S. Supreme Court left no doubt as to the employee-friendly nature of its decision. Justice Sotomayor, who authored the Opinion of the Court, wrote: "To be sure, the contributing-factor framework that Congress chose here is not as protective of employers as a motivating-factor framework. That is by design. Congress has employed the contributing-factor framework in contexts where the health, safety, or well-being of the public may well depend on whistleblowers feeling empowered to come forward. This Court cannot override that policy choice by giving employers more protection than the statute itself." While the decision relieves plaintiffs of having to show retaliatory intent, the Court nonetheless asserted that Sarbanes-Oxley's burden-shifting framework does serve as a "mechanism for getting at intent" by allowing an employer to respond to an employee's circumstantial evidence with its own. This, says the Court, provides the "full picture" that allows the factfinder to make the ultimate determination as to whether differential treatment was intentional and based on protected activity. Why Is This Important? After this decision, there is no longer any doubt as to the burden of proof in whistleblower lawsuits under the Sarbanes-Oxley Act. While the burden for employees is to prove that their whistleblowing contributed, even tangentially, to the unfavorable personnel decision (which includes termination, demotion, transfer, etc.), in order to defend against such claims, an employer must prove by clear and convincing evidence, that it would have taken the same unfavorable personnel action in the absence of the protected behavior. In a nutshell, this is a high bar for employers to meet. In practice, employers should act with caution in considering personnel decisions if they are aware of a complaint or report that might qualify as a protected activity under the Sarbanes-Oxley Act (or other anti-retaliation statutes). Employers should also review their policies and practices regarding internal reporting mechanisms to ensure visibility into such complaints or report. This decision further serves to remind employers of the importance of documenting legitimate workplace performance issues.

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Respecting The Freedom Of Expression And Right To Private Life In The Employment Context: The Analysis Of The Constitutional Court Case In Ayhan Deniz And Others - Employee Rights/ Labour Relations - Turkey
by Gunnar Larson 28 Feb '24

28 Feb '24

https://www.mondaq.com/turkey/employee-rights-labour-relations/1430230/resp… Turkey: Respecting The Freedom Of Expression And Right To Private Life In The Employment Context: The Analysis Of The Constitutional Court Case In Ayhan Deniz And Others 23 February 2024 by Eyup Kun and Citil Attorney Partnership Citil Attorney Partnership Your LinkedIn Connections with the authors View Eyup Kun Biography on their website The individual complaint case filed by Ayhan Deniz and others has been published in the Official Gazette on November 22, 2023. This case concerns the termination of employment contracts for multiple employees as a result of their social media posts. This case involves an intricate interaction between labour law, the freedom to express oneself, and the right to privacy. The Court's analysis provides a sophisticated perspective on the intersection between personal expressions on social media and employment obligations and rights. 1. Overview of the Case The individuals in question were employed by İzmit Atık ve Artıkları Arıtma Yakma ve Değerlendirme Anonim Şirketi (İZAYDAŞ) in Turkey. The Kocaeli Metropolitan Municipality Inspection Board conducted an investigation and found that their social media posts violated the moral and goodwill rules stated in Article 25 of the Turkish Labour Law (4857). As a result, their contracts were terminated. The employees initiated legal proceedings seeking reinstatement, but their claims were initially dismissed by the Kocaeli 5th Labour Court. The Court determined that the termination was justified due to the posts violating trust and loyalty, which qualifies as a legitimate cause under the Labour Law. After the case advanced through different tiers of the legal system, encompassing the Istanbul Regional Court of Justice and the Court of Cassation, the employees initiated to file a individual complaint alleging, among others, violation of freedom of expression and right to private law. 2. Analysis by the Constitutional Court The Constitutional Court examined whether the dismissal from employment as a result of social media posts violated the applicants' right to privacy and freedom of speech. The Court examined the content of the posts, which consisted of critical remarks directed towards political figures and policies. The Court stated that these expressions constituted a component of the applicants' personal life and fell within the scope of their entitlement to freedom of speech. The Court assessed the substance of the posts and their influence on the work environment. It was observed that the lower courts did not sufficiently evaluate whether the posts had a negative impact on the workplace atmosphere or the employer's functioning. The Court emphasised the need to strike a balance between the employer's operational interests and the rights of the employees. It is revealed that the lower courts did not effectively establish this equilibrium, as they did not sufficiently justify how the social media posts justified termination. The Court acknowledged that employers have the authority to enforce limitations on employees' personal lives for valid operational purposes. Nevertheless, these limitations should not excessively encroach upon fundamental rights, such as the right to express oneself. The Court determined that the termination of the employment contracts, which was result of the content shared on social media, constituted a breach of the applicants' entitlement to freedom of speech. The Court found that the lower courts had not adequately substantiated their rulings. Overall, the Constitutional Court's ruling demonstrates a thorough examination of the overlap between labour legislation, the utilisation of social media, and basic human rights. It emphasises the significance of examining the context and content of social media posts, the requirement for a fair evaluation of both employer and employee interests, and the safeguarding of freedom of speech in the workplace. This case highlights the importance for employers to thoroughly assess the consequences of social media activity when making employment decisions. It is crucial that any measures taken by employers do not excessively violate employees' rights to privacy and freedom of speech. 3. Takeaways For Employers Considering the ruling of the Constitutional Court and its implications, here are some recommendations for employers to take into account when formulating policies regarding the termination of employment contracts, with a focus on safeguarding freedom of expression: Establish a policy regarding the social media: Employers should establish clear guidelines pertaining to the use of social media. The policies should clearly define the behaviours that are considered acceptable and unacceptable on social media platforms, and also make it clear how engaging in social media activity can affect one's employment status. Strike a Balance Between Freedom of Expression, Right to Privacy and Workplace Harmony: Employers must find a ground between upholding employees' right to freely express themselves and ensuring a workplace environment that is respectful and harmonious. The policy must not prejudice personal opinions or expressions that have no direct bearing on the workplace atmosphere or the company's functioning. The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Supreme Court Holds Proof Of Retaliatory Intent Not Required For Sarbanes-Oxley Whistleblower Claims - Whistleblowing - United States
by Gunnar Larson 28 Feb '24

28 Feb '24

https://www.mondaq.com/unitedstates/whistleblowing/1428322/supreme-court-ho… In Short The Background: In August 2022, the United States Court of Appeals for the Second Circuit held in Murray v. UBS Securities, LLC., et al. ("Murray") that an employee suing his employer under the anti-retaliation provisions of the Sarbanes-Oxley Act ("SOX") had to prove that the employer acted with "retaliatory intent." This holding put the Second Circuit at odds with the U.S. Courts of Appeals for the Fifth and Ninth Circuits, which had held that retaliatory intent was not required to prove a SOX whistleblower claim. The U.S. Supreme Court granted certiorarito resolve the circuit split. The Result: On February 8, 2024, the Supreme Court reversed the Second Circuit's decision in Murray, holding that a SOX whistleblower claim does not require proof of "retaliatory intent," which the Court equated with "animus." Instead, the employee need only show that the protected whistleblowing activity was a "contributing factor" in the adverse employment action. Looking Ahead: The Supreme Court's decision clarifies that adverse employment actions attributable in whole or in part to an employee's protected conduct need not be motivated by animus in order to be unlawful. Despite this relatively narrow holding, parties will likely dispute in the lower courts and administrative proceedings how the Court's decision impacts plaintiffs' burden of proof. Under the Sarbanes-Oxley Act, 18 U.S.C. § 1514A, no public company "may discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee" for reporting conduct that the employee reasonably believes constitutes fraud or violations of securities laws. If a company discharges or otherwise retaliates against an employee for making such a report (a "protected activity"), the whistleblower-employee may be entitled to reinstatement, backpay, and other compensation. To prevail, a plaintiff must first prove by a preponderance of the evidence that the protected activity, such as an internal complaint or a report to a government agency, was a contributing factor in the unfavorable personnel action. If the plaintiff does so, the burden then shifts to the employer to prove by clear and convincing evidence that it would have taken the same adverse action regardless of the employee's protected activity. Absent such proof, the employee prevails. These procedures and standards of proof are not unique to SOX claims; many other whistleblower laws—including laws applicable to the railroad, airline, and food manufacturing industries—use the same contributing factor standard and burdens of proof. In Murray, the Supreme Court granted certiorari to resolve a circuit split over whether a plaintiff in a SOX whistleblower case was required to prove "retaliatory intent." The plaintiff, Murray, was a research strategist at UBS Securities LLC ("UBS"). Murray alleged that he was pressured by the UBS trading desk to "skew" his market reports to support the desk's business strategies, in violation of SEC regulations which required him to certify that his reports were independent. Murray further alleged that he reported this conduct to his supervisor multiple times, but that his concerns were not addressed. Shortly after these complaints, Murray's supervisor recommended that Murray either be discharged or reassigned to a new role, despite having given Murray a strong performance review just a few months earlier. UBS ultimately discharged Murray. Murray subsequently brought a SOX claim against UBS Securities and UBS AG alleging his dismissal was in retaliation for reporting violations of SEC regulations. At trial, the district court instructed the jury that if Murray could prove his protected activity was a contributing factor in his firing, then the burden of proof would shift to the defendants to justify the decision. The jury found for Murray, awarding him over $1 million. But on appeal, the Second Circuit reversed, holding that the statute required Murray to prove that his employer acted with animus or "retaliatory intent." In a unanimous 9-0 decision, the Supreme Court reversed the Second Circuit's judgment. The Court held that in order to prevail on a SOX whistleblower claim, a plaintiff need not prove "retaliatory intent," a concept which the Court interpreted as "something akin to animus." Said otherwise, SOX does not require proof that the adverse action was motivated by hostility or anger toward the employee for having engaged in protected conduct. Thus, adverse actions taken even for reasons other than animus could subject an employer to liability if they were due in whole or in part to protected conduct. The Court nonetheless affirmed that proof of intent is required to establish a SOX claim—specifically, evidence of "the intent to take some adverse employment action against the whistleblower employee 'because of' his protected whistleblowing activity." This question of intent, according to the Court, is resolved through the burden-shifting framework applicable to SOX claims. In light of Murray, employers facing SOX or other whistleblower claims should be prepared to present a robust affirmative defense aimed at establishing that they would have taken the same action regardless of protected conduct, including, for example, evidence that other employees who engaged in the same protected conduct were not disciplined, or evidence that the plaintiff engaged in the same protected conduct for some time without any repercussions. In every case, the evidence should be tailored to the specific facts; there is no "one-size-fits-all" approach. Murray is also a good reminder that employers should act to mitigate whistleblower risk preemptively. Such actions may include reviewing policies and procedures to ensure that adequate channels are available for employees to report misconduct internally (while not discouraging employees from reporting misconduct directly to government agencies); ensuring that such reports are investigated appropriately; establishing company policies prohibiting retaliation; training managers and employees on those policies; and vetting certain disciplinary decisions with counsel and appropriate internal resources. Four Key Takeaways: 1. The Supreme Court held that proof of retaliatory intent—i.e., "something akin to animus" toward an employee for engaging in protected conduct—is not required to establish a SOX whistleblower claim. This holding extends beyond just the SOX context; it also applies to many other whistleblower laws using the same standards and burdens of proof as SOX does. 2. Proof of intent is still required to establish a SOX claim—"the intent to take some adverse employment action against the whistleblowing employee 'because of' his protected whistleblowing activity." This provides some assurance that a company should not be held liable for legitimate, nonretaliatory personnel decisions. 3. The Supreme Court's decision could make it easier for employees in some cases to meet their own burden of proof, resulting in more whistleblower cases being decided on the basis of the employer's affirmative defense (i.e., whether the employer can prove by clear and convincing evidence that the same action would have been taken regardless of protected conduct). Employers should therefore be mindful of the type of evidence necessary to establish this defense and seek to develop it throughout discovery. 4. Employers can and should take steps to mitigate whistleblower risk preemptively by putting in place appropriate safeguards to protect the company's interests, as described above.

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UN's Unstereotype Alliance Releases State Of The Industry Report - Advertising, Marketing & Branding - Worldwide
by Gunnar Larson 28 Feb '24

28 Feb '24

https://www.mondaq.com/unitedstates/advertising-marketing--branding/1427972… The Unstereotype Alliance just released its State of the Industry report for 2023. The Unstereotype Alliance, which was convened by UN Women, the United Nations entity for gender equality, seeks to bring together partners to collectively use the advertising industry as a force for good to drive positive change all over the world. The report was released in connection with the Unstereotype Alliance's Global Member Summit, which is being held this week at the United Nations. Some of the key findings from the "State of the Industry" report include: Women are increasingly given more screen time in commercials; Screen time for women is high in Argentina, India, Pakistan, Peru, and Saudi Arabia and low in the Czech Republic, France, Italy, and the Netherlands; Across ads that show both men and women, women's prominence has stayed the same; Women and men under 40 are over-represented in advertising; Representation of women and men with diverse body types remains low; Representation of individuals from diverse ethic origins remains low, though it is most prominent in Australia, Canada, the Netherlands, the UK, and the United States; Representation of people with disabilities is very low, and even when present, stereotypical portrayals persist; and Representation of the LGBTIQ+ community in advertising remains low as well. I was very pleased to attend the Summit with representatives from the International Council for Advertising Self-Regulation, and even more pleased to see that the report cited ICAS's work in this area. The report wrote, "Advertising self-regulatory bodies play an instrumental role in receiving complaints about stereotyped and inappropriate ads, evaluating content, and removing content that violates said regulations. The regulatory ecosystem is now taking it a step further, moving towards the proactive encouragement of diverse and inclusive content development. In April 2023, the International Council for Advertising Self-Regulation (ICAS) announced the launch of the new DEI Award category . . . to encourage global advertising standards bodies to support initiatives for more diverse and inclusive ads." Some key recommendations in the report relating to achieving unstereotyped advertising include: Evaluate the screen time and presence of women and underrepresented groups within ads; Ensure portrayals are authentic and strengths-based; and Recognize that "who makes the work, shapes the work," thus diverse representation throughout the entire creative process is essential to ensuring authentic and unstereotyped portrayals.

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Fwd: #F23, 205 Open Records # 2024-040-00099 Ref. Social Media lawsuit
by Gunnar Larson 28 Feb '24

28 Feb '24

---------- Forwarded message --------- From: Nieves Dana <DNieves10(a)schools.nyc.gov> Date: Tue, Feb 27, 2024, 12:31 PM Subject: #F23,205 To: g(a)xny.io <g(a)xny.io> Cc: Macadangdang Ann <AMacadangdang(a)schools.nyc.gov> Please see attached in reference to the above FOIL request. Please continue to submit all communications concerning this request to FOIL(a)schools.nyc.gov using the subject-referenced number. Thanks, *Dana Nieves* Records Access Unit Coordinator: FOIL Unit New York City Department of Education Office of the General Counsel DNieves10(a)schools.nyc.gov February 27, 2024 VIA EMAIL Gunnar Larson xNY.io – Bank.org g(a)xny.io RE: #F23,205 Open Records # 2024-040-00099 Ref. Social Media lawsuit Dear Mr. Larson: On February 20, 2024, the Office of Legal Services of the NYC Department of Education (DOE) received your Freedom of Information Law (FOIL) request through the OpenRecords portal (submitted February 20, 2024), which assigned it an OpenRecords reference number of 2024-040- 00099. The DOE has assigned it a FOIL reference number of F23,205. Please include this reference number in all subsequent correspondence. In your request, you ask for: [1]… records pertaining to the lawsuit and [2] Section 1. Subchapter 1 of chapter 1 of title 3 of the administrative code of the city of New York, section 3-119.5 (https://intro.nyc/local-laws/2022-35) To the extent that the request is reasonably described, a search for records will be conducted. We anticipate providing you with a response by March 26, 2024. If responsive records are located and identified for release, you will be notified of the cost of reproduction. At that time, please make your check or money order payable to the New York City Department of Education and include the FOIL reference number on the instrument of payment. Please be advised that Public Officers Law § 87(1)(b)(iii) permits the DOE to charge a fee of 25¢ per photocopy not in excess of nine inches by fourteen inches, or the actual cost of reproducing any other record in accordance with Public Officers Law § 87(1)(c). Sincerely, Alina Novikova /s/ Alina Novikova Deputy Records Access Officer FOIL(a)schools.nyc.gov

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Feds Say Fla. Atty Can't Undo COVID Relief Fraud Conviction
by Gunnar Larson 27 Feb '24

27 Feb '24

Feds Say Fla. Atty Can't Undo COVID Relief Fraud Conviction <https://www.law360.com/governmentcontracts/articles/1806466?nl_pk=4126fe73-…> By Madison Arnold A U.S. attorney's office has pushed back on a Florida lawyer's bid to vacate her conviction in Georgia federal court of conspiring to defraud a coronavirus pandemic relief program, saying the government doesn't have to prove she was "behind the keyboard" when the applications were submitted to be convicted of the charges. Response attached | Read full article » <https://www.law360.com/governmentcontracts/articles/1806466?nl_pk=4126fe73-…> | Save to favorites » <https://www.law360.com/governmentcontracts/articles/1806466?nl_pk=4126fe73-…>

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FDIC Faces Staffing Crunch Amid Rising Turnover, IG Warns
by Gunnar Larson 27 Feb '24

27 Feb '24

FDIC Faces Staffing Crunch Amid Rising Turnover, IG Warns <https://www.law360.com/banking/articles/1806457?nl_pk=feb6bbba-7878-4d39-be…> By Sarah Jarvis The Federal Deposit Insurance Corp. is struggling to hire enough new employees to keep up with retirements and departures, especially in its examinations department, according to a report from the independent agency's inspector general. Report attached | Read full article » <https://www.law360.com/banking/articles/1806457?nl_pk=feb6bbba-7878-4d39-be…> | Save to favorites » <https://www.law360.com/banking/articles/1806457?nl_pk=feb6bbba-7878-4d39-be…>

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1st Circ. Rejects Crypto Founder's Hollow Fraud Appeal
by Gunnar Larson 27 Feb '24

27 Feb '24

1st Circ. Rejects Crypto Founder's Hollow Fraud Appeal <https://www.law360.com/capitalmarkets/articles/1806685?nl_pk=abe82add-2a33-…> By Brian Dowling A cryptocurrency founder convicted of fraud hitched his appeal to "inapplicable precedent" and failed to muster an argument why a judge's blocking of testimony from government witnesses deprived his defense of material and favorable evidence, the First Circuit said in upholding the guilty verdict. Opinion attached | Read full article » <https://www.law360.com/capitalmarkets/articles/1806685?nl_pk=abe82add-2a33-…> | Save to favorites » <https://www.law360.com/capitalmarkets/articles/1806685?nl_pk=abe82add-2a33-…>

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Western Union Sued For Interest It Earns On Failed Transfers
by Gunnar Larson 27 Feb '24

27 Feb '24

Western Union Sued For Interest It Earns On Failed Transfers <https://www.law360.com/banking/articles/1806711?nl_pk=feb6bbba-7878-4d39-be…> By Sydney Price Financial services company Western Union has been hit with a proposed class action alleging that the company can't lawfully earn interest from money transfers that don't make it to their recipient. Complaint attached | Read full article » <https://www.law360.com/banking/articles/1806711?nl_pk=feb6bbba-7878-4d39-be…> | Save to favorites » <https://www.law360.com/banking/articles/1806711?nl_pk=feb6bbba-7878-4d39-be…>

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