The 9th Circuit Court of Appeals took its first foray recently in Van Asdale v. International Game Technology, 2009 DJDAR 12023, into what a plaintiff must show to establish a whistleblower claim under the Sarbanes Oxley Act, 18 U.S.C. Section 1514A. The court found the plaintiffs did not have to “prove the existence of [actual] fraud before suggesting the need for an investigation.” Rather, they merely had to demonstrate they believed fraud had occurred to trigger the employer’s obligation to conduct an investigation. The court also held in-house counsel, as plaintiffs, may rely on confidential information protected by the attorney-client privilege to support such a claim. While the court’s application of the Sarbanes Oxley Act provisions relied primarily on existing precedent set by the Department of Labor and other circuit courts, the decision may provide an expansion from existing law regarding inhouse counsel’s rights to rely on privileged information in bringing retaliatory discharge claims under the act, and suggests care should be exercised in thoroughly investigating in-house counsel’s securities-related concerns.  

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