A recent decision by the United States District Court for the Southern District of New York (SDNY) inKshetrapal v. Dish Network, LLC, 14-cv-3527 (PAC), 2015 U.S. Dist. LEXIS 24573 (SDNY Feb. 27, 2015), extends SOX whistleblower protection to employees who engage in protected activity after being terminated. Tarun Kshetrapal was employed as the associate director of South Asian marketing for DISH Network L.L.C. He questioned the legitimacy of a marketing agency’s invoices to DISH and claimed that other DISH executives allowed the fraudulent invoicing because they were receiving bribes from the marketing agency. While Mr. Kshetrapal’s concerns were validated, he claimed that he was subsequently forced to resign. The marketing agency sued DISH, and Mr. Kshetrapal was deposed in that action. He testified about the fraudulent invoices, the bribes, and that his concerns had been overruled. After leaving DISH, Mr. Kshetrapal found a new job at Saavn, LLC, a Bollywood music streaming service. DISH placed ads with Saavn but a DISH executive later instructed that no further business should be done with Saavn. In June 2010, Mr. Kshetrapal received an offer of a new position with Nimbus Communications Limited, only to have it rescinded a few days later when DISH conveyed that it did not want him in the position. Mr. Kshetrapal claimed that DISH also provided a negative reference to Nimbus in violation of DISH’s neutral reference policy. DISH later informed Saavn that it would not work with them because they employed Mr. Kshetrapal.
Mr. Kshetrapal brought suit under SOX, the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank), and also asserted common law claims of tortious interference with contract and business relations, as well as for defamation. Key to Mr. Kshetrapal’s SOX claim was whether his deposition testimony, given post-termination from DISH, was protected under SOX. Under SOX, an employer may not “discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee in the terms and conditions of employment because of any lawful act.” 18 U.S.C. §1514A. The SDNY found that it was unclear whether the term “employee” was intended to apply only to current employees or also encompassed former employees — in particular noting that Section 1514A provided for the remedy of reinstatement, and a current employee could not be reinstated. Id. at *8. The court then looked to other sources, including the United States Department of Labor’s regulations, Administrative Review Board decisions, as well as the policy underlying SOX to resolve the ambiguity, and found that all of these sources supported holding that former employees were covered by SOX. Id. at *8-9. Consequently, the defendants’ motion to dismiss Mr. Kshetrapal’s SOX claim was denied.
Mr. Kshetrapal’s Dodd-Frank claim was dismissed as DISH’s alleged interference with his employment opportunity at Nimbus occurred in June 2010, prior to the effective date of Dodd-Frank. The court held that not only could Mr. Kshetrapal not obtain compensatory damages for events occurring prior to Dodd-Frank’s enactment, but he also could not seek injunctive relief based on the assertion that the harassment continued after Dodd-Frank became effective, as the U.S. Congress did not provide for injunctive or declaratory relief. Id. at 13-14.