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49 Wm. & Mary L. Rev. 65 (2007-2008)
Unfulfilled Expectations: An Empirical Analysis of Why Sarbanes-Oxley Whistleblowers Rarely Win

handle is hein.journals/wmlr49 and id is 77 raw text is: UNFULFILLED EXPECTATIONS: AN EMPIRICAL ANALYSIS
OF WHY SARBANES-OXLEY WHISTLEBLOWERS
RARELY WIN
RICHARD E. MOBERLY*
ABSTRACT
Scholars praise the whistleblower protections of the Sarbanes-
Oxley Act of 2002 as one of the most protective anti-retaliation
provisions in the world. Yet, during its first three years, only 3.6% of
Sarbanes-Oxley whistleblowers won relief through the initial
administrative process that adjudicates such claims, and only 6.5%
of whistleblowers won appeals through the process. This Article
reports the results of an empirical study of all Department of Labor
Sarbanes-Oxley determinations during this time, consisting of over
700 separate decisions from administrative investigations and
hearings. The results of this detailed analysis demonstrate that
administrative decision makers strictly construed, and in some cases
misapplied,     Sarbanes-Oxley's     substantive    protections    to  the
significant disadvantage of employees. These data-based findings
assist in identifying the provisions and procedures of the Act that do
not work as Congress intended and suggest potential remedies for
these statutory and administrative deficiencies.
* Assistant Professor of Law, University of Nebraska College of Law; J.D., magna cum
laude, 1998, Harvard Law School. I give special thanks to Lynne M. Webb, Professor of
Communication, University of Arkansas, whose methodological insight and advice proved
invaluable. I also truly appreciate the helpful comments from Cynthia Estlund, Susan
Franck, Jarod Gonzalez, Pauline Kim, Colleen Medill, Robert Moberly, Mike Pitts, Geoffrey
Rapp, Ryan Sevcik, Charles Sullivan, Robert Vaughn, Steve Willborn, and the participants
at the First Annual Colloquium on Current Scholarship in Labor and Employment Law at
Marquette University Law School. I owe significant thanks to Nilgun Tolek, the Director of
OSHA's Office of Investigative Assistance, who handled my Freedom of Information Act
requests (and many follow-up questions and requests) with candor and integrity. May all
government employees be as responsive to the public as Ms. Tolek. My research assistants,
Brad Sipp, Cindy Laub, and Scott Newman, deserve special mention because of their focus
and patience during the coding of over 700 case files. A McCollum Research Grant provided
support for the research and writing of this Article.

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