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Update on Bofl SOX Whistleblower Litigation

This is an update on our previous blog posts regarding the Erhart v. BofI Holding, Inc. case.

We previously reported in October 2017 and March 2017 on a whistleblower litigation brought by Charles Erhart, a former Bank of Internet Holding, Inc. (Bofl) internal auditor.  In late 2018, the parties filed cross-motions for judgement on the pleadings, including but not limited to Erhart’s SOX retaliation claim.  Bofl specifically alleged that Erhart failed to exhaust his administrative remedies under SOX with regard to his OSHA complaint.  On April 30, 2019, the court denied without prejudice Bofl’s motion to resolve on the pleadings Erhart’s SOX claim. Erhart v. BofI Holding, Inc., No. 15-cv-02287 (S.D. Cal. Apr. 30, 2019).

Prior Ruling

Bofl previously filed a motion to dismiss or in the alternative to strike the portions of Erhart’s complaint that alleged a violation of SOX because he failed to exhaust his administrative remedies. On September 11, 2017, in addition to finding that Erhart sufficiently alleged his whistleblower claims, the court denied Bofl’s motion to strike Erhart’s SOX claim.

SOX Exhaustion Sufficiently Alleged

On April 30, 2019, relying in large part on its September 2017 ruling, the court refused to make a determination on the pleadings as to Erhart’s SOX exhaustion claim. The court reasoned that it was not appropriate to resolve Erhart’s SOX claim on the pleadings without further factual development because Erhart alleged that he exhausted his SOX administrative remedies and the court already determined that Erhart plausibly alleged a whistleblower retaliation claim under SOX.

Outlook

Bofl indicated that it plans to seek summary judgment on Erhart’s SOX claim.  We will continue to monitor this case.

© 2019 Proskauer Rose LLP.

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About this Author

Lloyd B Chinn, Financial, Whistleblower Attorney, Proskauer Law Firm
Partner

Lloyd B. Chinn is a Partner in the Labor & Employment Law Department and co-head of the Whistleblowing & Retaliation Group. He litigates employment disputes of all types before federal and state courts, arbitration tribunals (e.g., FINRA, JAMS and AAA), and before administrative agencies in New York and across the country. Lloyd's practice ranges from litigating compensation disputes to defending whistleblower, discrimination and sexual harassment claims. Although he represents employers in a wide range of industries, including law, insurance, health care, consulting, media,...

212-969-3341
Pinny Goldberg Labor and Employment Lawyer Proskauer Rose Law Firm
Associate

Pinny Goldberg is an associate in the Labor & Employment Law Department. Pinny represents employers in a broad array of matters before federal and state courts, FINRA and other arbitration panels, and administrative agencies, including the EEOC and its state equivalents, and in pre-litigation negotiations. Matters he works on include discrimination and harassment, wage and hour, wrongful discharge, whistleblowing and retaliation, covenants not to compete, breaches of fiduciary duty, unjust enrichment, and tort and contract claims. 

In addition to handling litigation and dispute resolution, Pinny regularly advises clients on a wide variety of employment issues, including drafting, reviewing and revising handbooks and workplace policies. He also addresses questions and concerns related to hiring, wage and hour issues, employee leave, performance problems, terminations of employment, and separation agreements and releases.

Prior to joining Proskauer, Pinny was a Labor and Employment associate at Seyfarth Shaw LLP. While in law school, he served as an editor for the Cardozo Law Review.

212.969.3074
Annabel Pollioni, Litigation lawyer, Proskaeur
Associate

Annabel Pollioni is an associate in the Labor & Employment Law Department and assists clients in a wide range of labor and employment law matters.

Prior to joining Proskauer, Annabel attended Rutgers School of Law and interned with the United States Attorney’s Office and with the Honorable Judge Esther Salas of the United States District Court for the District of New Jersey.  She also served as the Submissions Editor on the Women’s Rights Law Reporter, a teaching fellow with the Minority Student Program and a research assistant to Professor George Thomas III...

973-274-3230