Vincent A. Beacom v. Oracle America, Inc.

United States Court of Appeals

For the Eighth Circuit

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No. 15-1729

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Vincent A. Beacom

lllllllllllllllllllll Plaintiff - Appellant

v.

Oracle America, Inc.

lllllllllllllllllllll Defendant - Appellee

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Securities and Exchange Commission

lllllllllllllllllllllAmicus on Behalf of Appellant(s)

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Appeal from United States District Court

for the District of Minnesota - Minneapolis

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Submitted: November 19, 2015

Filed: June 6, 2016

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Before SMITH, BYE, and BENTON, Circuit Judges.1

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1

This opinion is being filed by Judge Benton and Judge Smith pursuant to

Eighth Circuit Rule 47E.

BENTON, Circuit Judge.

Vincent A. Beacom sued Oracle America, Inc., alleging it violated Sarbanes-

Oxley and Dodd-Frank by firing him in retaliation for reporting that Oracle was

falsely projecting sales revenues. The district court1 granted summary judgment to

Oracle. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

I.

Oracle is a publically-traded international corporation in the computer software

and hardware business. Its software business is divided into seven global business

units, including the Retail Global Business Unit, all of which are managed by a single

Executive Vice President. The Retail Global Business Unit (RGBU) is further divided

into three regions – North and South America (the Americas division); Europe, the

Middle East, and Africa; and the Asia-Pacific – all of which are run by a General

Manager. Robert K. Weiler was Executive Vice President of all global business units,

Michael Webster was General Manager of the RGBU, and Beacom was Vice

President of Sales in the Americas division of the RGBU.

The RGBU comprises a small portion of Oracle’s business, generating only

0.4% of Oracle’s $31 billion in revenue. RGBU Americas generated only 0.19% of

Oracle’s revenue.

When Webster took over as General Manager of the RGBU in February 2011,

he changed the method for projecting quarterly sales revenues. Previously, Oracle

used a bottom-up forecasting process. Sales representatives entered potential deals

into a database, indicating the deal’s value and the likelihood of closing before the end

1

The Honorable Donovan W. Frank, United States District Judge for the District

of Minnesota.

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of the quarter. The regional managers then adjusted the forecasts. Oracle compiled

this information and created projections using an automated program with guidelines

and criteria. Deals not meeting the criteria—such as those without a concrete close

plan or an implementation plan—were “best case” or “upside” deals, and not recorded

as projected revenue.

Webster shifted sales revenue projections from bottom-up to top-down. Using

information contained in the sales pipeline—that is, deals already in the works—and

historical conversion rates, Webster established the forecasting goals for each region.

This forecasting method resulted in higher projections than under Oracle’s traditional

GCM method. For instance, in the first quarter of fiscal year 2012 (June 1, 2011, to

August 31, 2011), Webster projected $16.4 million in sales for RGBU Americas; the

GCM method would have projected $12.9 million. Webster’s superior, Bob Weiler,

revised Webster’s projections based on his experience and discretion.

The first three quarters of 2012, RGBU Americas overprojected its revenues.

In Q1, it projected $16.4 million, but delivered about $13 million. In Q2, it projected

$27 million, but delivered about $20 million. In Q3, it projected $25 million, but

delivered about $15 million. Beacom alleges that as a result of the missed projections

and the discrepancy between Webster’s projections and the GCM model, Webster

directed salespersons at RGBU Americas to record deals that did not meet the GCM

criteria—such as deals only considered “best case” under GCM—so the GCM model

would closer reflect his projections.

Beacom says he repeatedly voiced concerns to Webster about the new

projections method, beginning as early as the second quarter. Beacom testified he was

concerned that “the wrong, incorrect, non-fact-based expectations were being sent up

through the management chains, which would be the foundation of an expectation sent

to” Wall Street, and that these inaccurate projections contributed to Oracle’s decline

in stock value.

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However, in each quarter, RGBU Americas was only a few sales away from

meeting projections. In Q1, for example, Beacom told Webster he could meet

projections if he closed deals on Discount Tire, Nordstrom, Toys R Us, and Academy.

Discount Tire alone was forecast as a $4 million deal. Beacom did not close the deal,

and RGBU America missed its projection by $4 million. In Q2, Beacom similarly

reassured Webster he could meet the projections, even telling his daughter the

projections were “tight but doable.”

In January 2012, Beacom and Webster attended a conference in New York City.

Webster told Beacom he had increased his projection from $25 million to $30 million.

Beacom then “challenged” Webster’s practice of “intentionally forecasting false

revenue commitments.” Soon after, Beacom met with HR Representative Jennifer

Olson to express concerns that Webster’s forecasts were setting the wrong expectation

for shareholders.

Weiler and Webster decided to fire Beacom in March (to avoid interrupting

Oracle’s fiscal quarter). On March 5, 2012, Oracle terminated Beacom on the basis

of poor performance and insubordination.

Beacom sued Oracle under the Sarbanes-Oxley Act and the Dodd-Frank Wall

Street Reform and Consumer Protection Act, alleging Oracle wrongly terminated him

in retaliation for his complaints about Webster’s revenue projections. The district

court granted Oracle’s motions for summary judgment. Beacom appeals.

II.

This court reviews de novo a grant of summary judgment. Pedersen v. Bio-

Med. Applications of Minnesota, 775 F.3d 1049, 1053 (8th Cir. 2015). Summary

judgment is proper if the moving party proves “there is no genuine dispute as to any

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material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a).

A.

Sarbanes-Oxley prohibits a publicly traded company from discharging an

employee in retaliation for providing information to a supervisor or another person in

the company with investigative authority about “any conduct which the employee

reasonably believes constitutes a violation of section 1341, 1343, 1344, or 1348, any

rule or regulation of the Securities and Exchange Commission, or any provision of

Federal law relating to fraud against shareholders.” 18 U.S.C. § 1514A(a)(1)(C).

A claim of retaliation proceeds under a burden-shifting framework. First, the

plaintiff must prove four elements by a preponderance of the evidence: (1) he engaged

in protected activity; (2) his employer knew he engaged in protected activity; (3) he

suffered an adverse employment action; and (4) the protected activity was a

contributing factor in the adverse action. Bechtel v. Admin. Review Bd., 710 F.3d

443, 447 (2d Cir. 2013). Then, the employer may prove by clear and convincing

evidence that it would have taken the same adverse action even if the employee had

not engaged in the protected activity. Rhinehimer v. U.S. Bancorp Inves., Inc., 787

F.3d 797, 805 (6th Cir.).

1.

Sarbanes-Oxley requires the employee to hold a reasonable belief that the

employer’s conduct amounts to fraud against the shareholders. The reasonable belief

standard has both an objective and a subjective component. Rhinehimer, 787 F.3d

at 811. The employee must subjectively believe the employer’s conduct violated a

law relating to fraud against shareholders, and the employee’s belief must be

objectively reasonable. Id.

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The Administrative Review Board (ARB) of the Department of Labor, which

adjudicates Sarbanes-Oxley whistleblower claims, first considered the objective

component of the “reasonable belief” standard in 2006. Platone v. FLYI, Inc., ARB

No. 04-154, 2006 WL 3246910 (ARB Sept. 29, 2006). In Platone, the ARB held that

to qualify as protected conduct, the employee’s complaint must (1) “definitively and

specifically” relate to one of the categories of fraud or securities violations listed

under Sarbanes-Oxley’s whistleblower statute, 18 U.S.C. § 1514A(a)(1); and (2)

“approximate . . . the basic elements” of the fraud or securities violation to which the

complaint relates. Id. at *8, adopted by Van Asdale v. Int’l Game Tech., 577 F.3d

989, 996-97 (9th Cir. 2009); Welch v. Chao, 536 F.3d 269, 275 (4th Cir. 2008); Allen

v. Admin. Review Bd., 514 F.3d 468, 477 (5th Cir. 2008). See also Day v. Staples,

Inc., 555 F.3d 42, 54 n.8 (1st Cir. 2009).

In 2011, however, the ARB rejected the Platone standard. Sylvester v. Parexel

Int’l LLC, ARB No. 07-123, 2011 WL 2165854, at *12 (ARB May 25, 2011) (en

banc). Instead, the ARB held that to satisfy the objective component of the

“reasonable belief” standard, the employee must simply prove that a reasonable

person in the same factual circumstances with the same training and experience would

believe that the employer violated securities laws. Id. at *11-12 (noting that the

Senate Report indicated Congress’s intent to impose “the normal reasonable person

standard”). Under the new Sylvester standard, an employee’s mistaken belief may still

be objectively reasonable. Id. at *13.

No court has rejected the Sylvester standard. The Second, Third, and Sixth

Circuits have deferred to the Sylvester standard, rejecting Platone’s “definite and

specific” standard. Nielsen v. AECOM Tech. Corp., 762 F.3d 214, 220-21 (2d Cir.

2014); Wiest v. Lynch, 710 F.3d 121, 131-32 (3d Cir. 2013); Rhinehimer, 787 F.3d

at 806. The Fourth and Tenth Circuits have addressed Sylvester, but found the

plaintiff satisfied the more rigorous “definite and specific” standard from Platone.

Feldman v. Law Enforcement Assocs. Corp., 752 F.3d 339, 344 n.5 (4th Cir. 2014);

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Lockheed Martin Corp. v. Admin. Review Bd., 717 F.3d 1121, 1132 n.7 (10th Cir.

2013).

This court, joining the Second, Third, and Sixth Circuits, adopts the Sylvester

standard.

2.

Under the Sylvester standard, Beacom must establish that a reasonable person

in his position, with the same training and experience, would have believed Oracle

was committing a securities violation. Rhinehimer, 787 F.3d at 811. This fact-

dependent inquiry is typically inappropriate for summary judgment. Id. “[T]he issue

of objective reasonableness should be decided as a matter of law only when no

reasonable person could have believed that the facts [known to the employee]

amounted to a violation or otherwise justified the employee's belief that illegal

conduct was occurring.” Id. (second alteration in original) (internal quotation marks

omitted).

RGBU Americas missed its projections by no more than $10 million.

Beacom—an Oracle salesperson and shareholder—would understand the predictive

nature of revenue projections. And, he would understand that $10 million is a minor

discrepancy to a company that annually generates billions of dollars. These facts

compel the conclusion that Beacom’s belief that Oracle was defrauding its investors

was objectively unreasonable, even under the less-stringent Sylvester standard.2

2

The summary judgment order is unclear whether it applied the Platone or

Sylvester standard. Because Beacom cannot meet the lower Sylvester standard, any

error was harmless.

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The district court did not err in granting summary judgment to Oracle on the

Sarbanes-Oxley claim.

B.

Dodd-Frank prohibits an employer from discharging a whistleblower for

“making disclosures that are required or protected under the Sarbanes-Oxley Act of

2002.” 15 U.S.C. § 78u-6(h)(1)(A)(iii). Since Beacom did not make a disclosure

protected under Sarbanes-Oxley, his claim under Dodd-Frank fails. The district court

properly granted summary judgment for Oracle on Beacom’s Dodd-Frank claim.

*******

The judgment is affirmed.

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