February 4, 2023

Volume XIII, Number 35


February 03, 2023

Subscribe to Latest Legal News and Analysis

February 02, 2023

Subscribe to Latest Legal News and Analysis

February 01, 2023

Subscribe to Latest Legal News and Analysis

4th Circuit: Four Year Statute Of Limitations Applies To SOX (Sarbanes-Oxley) Claims

The Fourth Circuit recently held that SOX whistleblower retaliation claims are subject to a four-year statute of limitations and that emotional distress damages are available in SOX actions.  Jones v. SouthPeak Interactive Corp. of Del., Case Nos. 13-2399 and 14-1765 (4th Cir. Jan. 26, 2015). 


Plaintiff-Appellee was the former Chief Financial Officer for the Defendant-Appellant Company, which designs, develops and distributes video games.  The Company took out a personal loan to place an order for video games, but allegedly failed to record the debt on its balance sheet or in its quarterly financial report, which was filed with the SEC.  Plaintiff-Appellee complained that the Company was engaging in fraud, and refused to sign an amendment to the quarterly financial report in which the Company denied any intentional fraud or misstatement in its earlier filing.  Plaintiff-Appellee’s employment was subsequently terminated.

Plaintiff-Appellee filed a complaint with OSHA, alleging that her termination was retaliatory.  When OSHA failed to issue an order within 180 days, Plaintiff-Appellee notified OSHA that she intended to file a federal lawsuit.  She waited two years to file suit.  The court ultimately awarded her $470,000 in back pay and $123,000 in compensatory damages, as well as attorneys’ fees.  She also received $50,000 from the CEO and $50,000 from the Chairman of the Board.  Defendants-Appellants appealed.

Fourth Circuit’s Ruling

The Fourth Circuit affirmed, ruling as follows.

4-year statute of limitations applies:  First, the court considered whether the claims were timely under the applicable statute of limitations.  Rejecting Defendants’ argument that the allegations sounded in fraud, for which a two-year statute of limitations applies, the court emphasized that Plaintiff-Appellee advanced a claim of retaliation, not fraud.  The court reasoned that because the “retaliation claim can succeed without the ‘discovery of facts constituting’ securities fraud,” the federal “catch-all” four-year statute of limitations governed retaliation claims under SOX.

Emotional distress damages are available:  Following the Fifth and Tenth Circuit, the Fourth Circuit also held that emotional distress damages are available to a prevailing party under SOX.       The court reasoned that the statute provides that a Plaintiff “shall be entitled to all relief necessary to make the employee whole,” which includes remedies that are not specifically enumerated in the statute.


Both the expanded statute of limitations and the availability of emotional distress damages heighten the stakes for employers saddled with SOX whistleblower claims.  Though this whistleblower award may not be quite as staggering as others (such as the $2.1 million award we discussed in a prior post or the$6 million award we discussed in another post), the $693,000 awarded in this case is nevertheless substantial and sends a cautionary message to employers faced with whistleblower claims.

© 2023 Proskauer Rose LLP. National Law Review, Volume V, Number 34

About this Author

Steven J Pearlman, Labor Employment Law Firm, Proskauer Law firm

Steven Pearlman is a partner in the Labor & Employment Law Department and co-head of the firm's Whistleblowing & Retaliation Group, resident in the Chicago office. Steven’s practice focuses on defending complex employment litigation involving claims of discrimination and harassment, wage-and-hour laws and breaches of restrictive covenants (e.g., non-competition agreements). He has successfully tried cases to verdict before judges and juries in Illinois, Florida and California, and defended what is reported to be the largest Illinois-only class action in the history of the U.S....

Allison Lynn Martin, Proskauer Rose Law Firm, Labor Employment Attorney

Allison Martin is an Associate in the Labor & Employment Department, resident in the Newark office.