AN EMPLOYEE’S ASSISTANCE IN RESPONDING TO A SUBPOENA BY A GRAND JURY WAS POTENTIALLY “ASSISTING” A PROCEEDING AND THEREFORE POTENTIALLY A PROTECTED ACTIVITY
April 2, 2008
In Miles v. Wal-Mart Stores, Inc.,No. 5:06-CV-05162 (W.D.Ark. Jan. 25, 2008), the court found that the Plaintiff had created a geniune issue of material fact as to whether she engaged in protected activity under SOX because she had provided assistance to the FBI and an Assistant U.S. Attorney in connection with Wal-Mart’s response to a grand jury subpoena calling for production of documents concerning union-related labor relations and the investigation of a former executive for suspected fraud. The Plaintiff had objected to an instruction to shred certain documents being digitized in her labor relations department which she believed might have been subject to the subpoena. Wal-Mart argued that the Plaintiff had only aided an “investigation” as opposed to a “proceeding.” The court found that under the circumstances, a genuine issue of material fact existed as to whether the Plaintiff engaged in protected activity.
The section of the Sarbane-Oxley Act that potentially applied was the second prong of the protected activity provision of Sarbanes-Oxley which prohibits publicy traded companies from discrimination against an employr or other covered person that: files, causes to be filed, testifies, participates in, or otherwise assists in a proceeding filed or about to be filed (with any knowledge of the employer) relating to an alleged violation of section 1341, 1343, 1344, or 1348, any rule or regulation of the Securities and Exchange Commission, or any provision of Federal law relating to fraud against shareholders. 18 U.S.C. 1514A(a) (2004).
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