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Leg500 Assignment 1

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Whistleblowing and Sarbanes-Oxley Act
Student Name
College or University Name
LEG500 – Law, Ethics, and Corporate Governance
Professor’s Title
Date
Whistleblowing and Sarbanes-Oxley The federal government passed and put into law the Sarbanes-Oxley Act of 2002 (SOX) to primarily protect whistleblowers from retaliation for reporting corporate fraud and financial malfeasance to the government. The negligence became apparent in the 1990’s when corporations such as Enron, HealthSouth, Tyco and WorldCom were found to have grossly overstated their earnings. This cost billions of dollars in losses to shareholders and caused the near-collapse of the stock market (Prentice, 2010, p. 17). The companies were able to hide, scam or misrepresent their earnings due to the dot-com boom, soaring investments, and auditor fraud. The Sarbanes-Oxley Act contains many sections, sub-sections and creation of other agencies to enforce it. It was a sweeping change to standard reporting practices and was created to restore investor confidence, hold corporations and auditors financially and criminally accountable, and protect whistleblowers. Prior to the creation of SOX the whistleblower had no protection from retaliation by the organization. Whistleblowers had fears of criminal prosecution, bodily harm and job loss if they reported the misdeeds of their employer both publicly and privately. The Sarbanes-Oxley Act of 2002 redefined the whistleblower. An examination of the characteristics of a whistleblower, the Global Capital Markets Advisors whistleblower case, and whistleblower protection guaranteed by the Sarbanes-Oxley Act will demonstrate the benefits, setbacks, and drawbacks of SOX and whistleblowers. Characteristics of a Whistleblower There have been many studies on who is a whistleblower and what are the characteristics of a whistleblower. There is no easy answer to either question as potential whistleblowers stand at the crossroad of reporting or not reporting and weighing the potential costs both personally, socially and professionally. The characteristics of what drives a whistleblower to report wrongdoings in the first place are not the same characteristics a whistleblower may have after reporting. Even with the benefit of Sarbanes-Oxley protection whistleblowers are rarely prompted by greed or desire for money, as the consequences and potential life changing events are not equal or worth monetary compensation. The government was suspicious of whistleblower Bradley Manning, and the result was that he reported to confront gender confusion and had no understanding of the data he had in his possession (Severn, 2013). Edward Snowden became a whistleblower after several efforts to report purported unethical behavior and abuse of power by an agency of the government went unanswered. Snowden believed it was his duty to American citizens to know as well as other government organizations of the breach of the constitution. Whistleblowers generally have the characteristics of; loyalty to the greater good, desire for positive change, self-consciousness, discomfort with wrongdoing, fearful or reporting, shocked by harmful acts, obsessiveness, and bravery (Severns, 2013). The majority of whistleblowers report that ultimately they had no choice but to report once having witnessed the wrongdoing and harm to society. Global Capital Markets Advisors Whistleblower Case The Securities and Exchange Commission (SEC) awarded whistleblower, Michael Sears with the largest U.S. payout of $30 million in September 2014 (Huddleston, 2014). Sears was a principal and partner at Global Capital Markets Advisors who confidentially reported the financial fraud of an international businessman directly to the SEC. Sears reported with the protection under the Sarbanes-Oxley Act. Sears’s identity was anonymous throughout the SEC investigation. Sears identity, as the whistleblower became known by the filing of a lawsuit by his business partner who demanded a portion of the award as allegedly promised. According to Huddleston (2014), Sears reported the corporate “visa-for-sale” scheme by international businessman, Anshoo Sethi to the SEC. The fraud case would have been otherwise impossible to detect if not for the whistleblower. The subsequent investigation by the SEC resulted in the SEC reclaiming $147 million for investors and a fee for the fraud (Cassin, 2014). Whistleblower Protection and the Sarbanes-Oxley Act The goal of the Sarbanes-Oxley Act is to allow lower level employees up to corporate level employeesto whistleblower confidentially with protection, without retaliation, and to receive compensation for their duty of loyalty. According to Halbert (2013):
The Sarbanes-Oxley Act prohibits any public company from discriminating against any employee who lawfully provides information or otherwise assists in an investigation of conduct that the employee “reasonably believes” constitutes a violation of the federal securities laws (p. ).
Whistleblower Micahel Sears was protected by the Sarbanes-Oxley Act of 2002 for reporting international fraud that was being perpetrated with the promise of U.S. investor benefits. Sears received the benefit of his employer being prohibited from employment discrimination at a civil level and all attempts to fire or demote him. He received protection from his employer regarding employee discrimination as a whistleblower at a criminal level. Through the Sarbanes-Oxley Act, the SEC had responsibility to maintain audit controls over the accounting practices of Anshoo Sethi’s business and to process him criminally and civilly.
Conclusion
The Sarbanes-Oxley Act of 2002 was sweeping legislation that has forever changed financial accounting and securities reporting by corporations. The Act specifically created protections for whistleblowers so that they have the means to report corporate fraud or misdoings confidentially without fear of retaliation both civilly or criminally from their employer. The whistleblower has the right not to lose their job, to not be prosecuted for reporting what may be considered proprietary information on the course of whistleblowing and to report without fear. In the case of Michael Sears, his identity remained anonymous for the SEC portion of the case but was later identified in a lawsuit as the whistleblower.Future whistleblowers may feel in jeopardy of their identity being disclosed and having no future protection upon the SEC garnering the information it requires. There have been many positive strides in controlling financial fraud through whistleblower reporting methods. There are still many pitfalls for the whistleblower is being clarified as cases arise. The whistleblower has to go through the bumps in the road, and the learning curve as the law is better defined.

References
Cassin, R. (2014, August 29). Chicago promoter indicted for $160 million visa fraud against
Chinese investors. Retrieved from http://www.fcpablog.com/blog/2014/8/29/chicago-promoter- indicted-for-160-million-visa-fraud-against.html#
Halbert, T., & Ingulli, E. (2012). Law & ethics in the business environment (7th ed.). Mason,
OH: South-Western Cengage Learning.
Huddleston, Jr., T. (2014, September 22). SEC hands out $30 million in largest-ever whistleblower award. Retrieved from http://fortune.com/2014/09/22/sec-hands-out-30-million-in-largest-ever-whistleblower-award/
Prentice, R. A., & Bredeson, D. (2010). Student guide to the Sarbanes-Oxley Act (2nd ed.).
Mason, OH: South-Western Cengage Learning
Severns, M. (2013, June 13). What Really Drives a Whistleblower Like Edward Snowden? Retrieved from http://www.motherjones.com/politics/2013/06/snowden-whistleblower-interview-alford

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