# ADMINISTRATIVE REVIEW BOARD

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/agency%3Asec%3A27d2fa4fb99b87df

## Record

- **Collection:** Agency decision
- **Document type:** Agency decision

## Text

ADMINISTRATIVE REVIEW BOARD
DEPARTMENT OF LABOR

Case No~ 08-032

In the matter of
CARRI S. JOHNSON,
Complainant,

v.
SIEMENS BUILDING TECHNOLOGIES, INC. and
SIEMENSAG,
Respondents.

BRIEF OF THE SECURITIES AND EXCHANGE COMMISSION,
AMICUS CURIAE

MARKD.CAHN
Deputy General Counsel
JACOB H. STILLMAN
Solicitor
MARK PENNINGTON
Assistant General Counsel
ALLAN A. CAPUTE
Special Counsel to the Solicitor
Securities and Exchange Commission
100 F. Street, N.E.
Washington, D.C. 20549-8030B
(202) 551-5122; caputea@sec.gov

TABLE OF CONTENTS
Page
TABLE OF AUTHORlTIES

iii

STATEMENT OF THE ISSUE

2

ARGUMENT

3

I.

II.

Congress Has Enacted a Clarifying Amendment That
Makes Clear That the Interpretation Urged by the
Commission Is the Correct Reading of the Statute. . .

3

In Order to Effectuate the Congressional Intention to
Prevent Fraud by Improving the Accuracy of Financial
Statements in the Exchange Act Filings of Reporting
Companies, Section 806 Should Be Interpreted to
Extend Whistleblower Protection to the Employees
of Subsidiaries Whose Results Are Consolidated with
the Parent's Financial Statements. .
.,.

6

A.

B.

C.

The Financial Results of Consolidated Subsidiaries
Are an Integral Part of the Reports Filed by Reporting
Companies Because, for Accounting Purposes, the
Parent and the Consolidated Subsidiaries Are
Considered to Be a Single Economic Entity. .

6

Section 806 Is Most Reasonably Interpreted as
Extending Whistleblower Protection to Employees
of Consolidated Subsidiaries.

10

The Legislative History Shows That a Basic
Objective of SOX Was to Protect Whistle­
blowers in Order to Foster Disclosure of
Fraud, Including Fraud Involving Subsidiaries,
an Objective That Will Be Frustrated If
Employees of Consolidated Subsidiaries
Are Not Protected

12

TABLE OF CONTENTS (Continued)
Page

D.
III.

Textual Arguments to the Contrary Are Not Persuasive. .

Other Interpretations of Section 806 That Have
Been Followed in Some Decisions Do Not
Effectuate Congressional Intentions as Well
as the Interpretation We Endorse. ..
A.

B.

C.

14

17

Decisions Suggesting That Subsidiaries Can
Never Be Covered Are Incorrect.

18

Interpreting the Section as Only Applying
to Subsidiaries When They Are Acting as
Agents of the Parent, and Relying on
Traditional Principles of Agency and State
Corporate Law to Determine the Liability
of the Parent, Does Not Give Full Effect
to Congress's Intent.

20

The Use of the "Integrated Enterprise Test"
to Determine Liability of Public Parent
Corporations to Employees of Non-Public
Subsidiaries s erroneous. .

23

CONCLUSION

25

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TABLE OF AUTHORITIES
Page

CASES

Abkco v. Music, Inc., 217 F.3d 684 (9th Cir. 2000) .._

,

5

Ark. Dairy Coop. Assoc., Inc. v. Depart. of Agric.,
573 F.3d 815 (D.C. Cir. 2009)

10

In re Bascom Food Products Corp., 715 F. Supp. 616 (D.N.J. 1989)

12

Bechtel v. Competitive Technology, Inc., 448 F.3d 469 (2d Cir. 2006)

13

Bell Atlantic Business Systems Service v. Hitachi Data System Corp.,
849 F. Supp. 702 (N.D. Cal. 1994)

12

Brotherhood ofR.R. Trainmen v. Baltimore & Ohio R. Co.,
331 U.S. 519 (1947)

:

15

Brady v. Calyon Sec. (USA), 406 F. Supp. 2d 307 (S.D.N.Y. 2005)

22

Brown v. Thompson, 374 F.3d 253 (4th Cir. 2004)

4, 5

Cefalu v. East Baton Rouge Parish School, 117 F.3d 231
(5th Cir. 1997)

5

Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752 (1984)

11

Kang v. U Lim America, Inc., 296 F.3d 810 (9th Cir. 2002)

24

Malin v. Siemens Medical Solutions Health Services,
638 F. Supp. 2d 492 (D. Md. 2008)

Piambra Cortes v. American Airlines, Inc., 177 F.3d 1272
(1IthCir. 1999)

~

15

5

Schweitzer v. Advanced Telemarketing Corp., 104 F.3d 761 (5th Cir. 1997) ....... 24
-lll­

TABLE OF AUTHORITIES (Continued)
Page
Swallows v. Barnes & Noble Book Stores, Inc., "128 F.3d 990
(6th Cir. 1997)

24

UnitedStates v. Montgomery County, 761,998 1003 (4th Cir. 1985)

4

United States v. Sepulveda, 115 F.3d 882 (lIth Cir. 1997)

4

Whitman v. America Trucking Association, 531 U.S. 457 (2001)

15

ADMINISTRATIVE CASES
Brothwell v. Am. Income Life, 2005-S0X-57
(Sept. 19, 2005)

19

Carciero v. Sodexho Alliance, SA, ALJ No. 2008-S0X-12 (Oct. 5,2009)

23

Dawkins v. Shell Chemical, LP, 2005-S0X-41 (May 16,2005)

22

Grant v. Dominion East Ohio Gas, 2004-S0X-63 (March 10,2005)

19

Kalkunte v. DVI Fin. Services, Inc., 2004-S0X-56
(July 18, 2005), ajf'd, ARB No. 05-139 and
05-140 (Feb. 27, 2009)

22

Klopfenstein v. Administrative Review Board,
Case No. 10-60144 (5th Cir.)

~

Klopfenstein v. PCC Flow Technology Holdings, Inc., ARB No. 04-149
(May 31, 2006)

20,21,22

Lowe v. Terminix Int'l Company, LP, 2006-S0X-89 (Sept. 15,2006)
Mann v. United Space Alliance, LLC, 2004-S0X-15
(Feb. 18, 2005)

-lY­

23

15, 19

~

22

TABLE OF AUTHORITIES (Continued)
Page

Merten v. Berkshire Hathaway, Inc., ALl No. 2008-S0X-040
(Oct. 21, 2008)
,

.
23

Minkina v. Affiliated Physicians Group, 2005-S0X-19
(Feb. 22, 2005)

19

Morefield v. Exelon Services, Inc., 2004-S0X-2, (Jan. 28, 2004)

2, 10, 17

Platone v.Atlantic Coast Airlines Holdings, 1nc., 2003-S0X-27
(April 30, 2004)

22

Rao v. Daimler Chrysler Corp., 89 Empl. Prac. Dec. ~42,814,
2007WL 1414220 (E.D. Mich. 2007)

15,22

Savastano v. WPP Group, PLC, 2007-S0X-34 (July 18,2007)

22

Teutsch v. ING G, N V, 2005 -SOX-101, 102, 103
(Sept. 25, 2006)

:

Walters v. Deutsche Bank AG, 2008-S0X-70 (Mar. 23,2009)

15, 18, 19
2, 10, 19

STATUTES AND RULE

Securities Exchange Act of 1934, 15 .U.S.C. 78a, et seq.
Section 10A(m), 15 U.S.C. 78j-1(m)
Section 12, 15 U.S.C. 781
Section 13, 15 U.S.C. 78m
;
Section 15(d), 15 U.S.C. 78o(d)

;

Section 302(a)(4)(B), 15 U.S.C. 7241(a)(4)(B)

-v­

;
;

15,16,17
6, 7,15
: 6, 7, 8
6, 7, 8
paSSIm
15, 16

TABLE OF AUTHORITIES (Continued)
Page

Section 806 of the Sarbanes-Oxley Act of 2002,
18 U.S.C. 1514A

:

1,.3,6
paSSIm

Section 929A Dodd-Frank Wall Street Reform and
Consumer Protection Act of2010

3,4

Rule 3A-02 of Reg. S-X, 17 C.F.R. 210.3A-02

8,9

LEGISLATIVE MATERIAL
Senate Legislative History, Vol. III 1632

13, 14

SenateLegislative History Vol. II 1074

~

20

148 Congo Rec. S73 51 (daily ed. July 25, 2002)

18

H.R. 4173, 111th Congo

4

S. Rep. No. 107-146 (2002)

13

S. Rep. No. 107-205 (2002)

12

S. Rep. No. 111-176 (April 30, 2010)

3-4

The Legislative History ofthe Sarbanes-Oxley Act of2002:
Accounting Reform and Investor Protection Issues
Raised by Enron and other Public Companies,
Hearings, Senate Committee on Banking, Housing,
and Urban Affairs, 107th Cong., Vol. III 1632 (GPO 2003)

13

The Enron Collapse: Impact on Investors and Financial Markets -­
Joint Hearing before the H. Subcomm. on Capital Markets
and the Subcommittee, 107th Congo 57, 200 I WL
34078734 (2001)

14

-VI­

TABLE OF AUTHORITIES (Continued)
Page

MISCELLANEOUS
FASB 2008

9

Brief of the Assistant Secretary of Labor for Occupational
Safety and Health as Amicus Curiae, Johnson v.
Siemens Building Technologies, Ins., and Siemens
AG., ARB Case No. 08-032 (Mar. 14, 2008)

25

FASB Accounting Standards Codification at Topic 810 Consolidation
(FASB 2008)

9

-Vll­

ADMINISTRATIVE REVIEW BOARD
DEPARTMENT OF LABOR

Case No. 08-032

In the matter of
CARRI S. JOHNSON,
Complainant,

v.
SIEMENS BUILDING TECHNOLOGIES, INC. and
SIEMENS AG,
Respondents.

BRIEF OF THE SECURITIES AND EXCHANGE COMMISSION,
AMICUS CURIAE

The Securities and Exchange Commission submits this brief in response to
the order of the Administrative Review Board ("Board"), dated April 15,2010,
asking for the Commission's interpretation of Section 806 of the Sarbanes-Oxley
Act of2002 ("SOX"), 18 U.S.C. 1514A, as it pertains to non-public subsidiaries of
public companies.
The Commission believes that the whistleblower protections of Section 806
apply not only to employees of parent companies that file financial reports with the
Commission, but also t~ employees of their non-public subsidiaries whose results

are required to be included in their parent's consolidated financial statements.
Thus, the Commission agrees with the ALJ decisions in Morefield v. Exelon
Services, Inc., 2004-S0X-2, (Jan. 28, 2004) and Walters v: Deutsche Bank AG,
2008-S0X-70 (Mar. 23, 2009). This interpretation is also consistent with the
clarifying amendment recently adopted by Congress as Section 929A of the DoddFrank Act of2010.

STATEMENT OF THE ISSUE
The Board requests the Commission's view as to "whether an employee of a
subsidiary of a publicly held company may bring an action against a non-public
subsidiary under section 806" while "taking into consideration the various
approaches, tests, and interpretations that the courts, ALJs, and the Board have
applied." Specifically, the Board requests t1).at the Commission respond to the
following questions:
(1)

Is a subsidiary categorically covered under Section 806? If so, does
the level of ownership of the subsidiary playa factor in that coverage?

(2)

Under SOX's whistleblower protection provision, must a non-publicly
held subsidiary respondent be an agent of a publicly held company?
What are the factors under a Section 806 agency test?

(3)

Is the integrated enterprise test applicable to section 806? If so,
should the Board consider the "centralized control of labor relations"
the most appropriate factor?

-2­

(4)

Is there any other theory under which you contend that subsidiaries
would be covered under Section 806? If so, explain.
ARGUMENT

I.

Congress has enacted a clarifying amendment that makes clear that the
interpretation urged by the Commission is the correct reading of the
statute.

Congress has passed and sent to the President the Dodd-Frank Wall Street
Reform and Consumer Protection Act to be signed into law. Included in the DoddFrank Act is an amendment to Section 806 of SOX that is dispositive of the issue
presented in this appeal. Section 929A of the Dodd-Frank Act amends Section 806
to expressly include within its coverage "any subsidiary or affiliate whose financial
information is included in the consolidated financial statement of [a public]
company" (emphasis added). The Senate Report accompanying the Senate bill (S.
3217, which was incorporated into the previously passed House bill and passed by
the Senate on May 20,2010) explains that the amendment is intended as a
"clarification" made necessary by the often asserted defense that non-public
subsidiaries are not covered by Section 806. The Senate Report states that the
.purpose of Section 929A is "to make clear that subsidiaries and affiliates of issuers
may not retaliate against whistleblowers, eliminating a defense often raised by
issuers in actions brought by whistleblowers." S. Rep. No. 111-176 (April 30,

-3­

2010).1! Currently, "[t]he language ofthe statute may be read as providing a
remedy only for retaliation by the issuer, and not by subsidiaries of an issuer. This

clarification would eliminate a defense now raised in c substantial number of
actions brought by whistleblowers under the statute." Id. (emphasis added)
Since Section 929A is merely a clarifying amendment, it does not constitute
a substantive change of the law. To the contrary, such an amendment is intended
only "to clarify existing law; to correct a misinterpretation, or to overrule wrongly
decided cases," United States v. Sepulveda, 115 F.3d 882,885 n.5 (11 th Cir. 1997),
by "mak[ing] what was intended all along even more unmistakably clear." United

States v. Montgomery County, 761 F.3d 998 1003 (4 th Cir.1985) (quoted in Brown
v. Thompson, 374 F.3d 253,259 (4 th Cir. 2004)). Since the amendment merely
restates what the law has been all along, Section 929A can be relied on by

1/

The original House bill that was passed by the House on December 2, 2009
also amended Section 806. See H.R. 4173, III th Congo §7607. The House
bill was referred to the Senate. The Senate amended the House bill by
.incorporating the provisions from a Senate bill, S. 3217, and passed the
House bill on May 20,2010. The Senate-passed version of the House bill
contained a different version of the amendment to Section 806, which
became Section 929A, described above. The Conference Committee
adopted the version contained in the Senate-passed bill. The Conference
Report does not separately discuss Section 929A. The Act and its legislative
history may be found at website of the Library of Congress - ­
http://www.thomas.loc.gov.

-4­

complainants in pending administrative cases. 2J
That the amendment merely clarifies existing law is confirmed by the fact.
that tho statute as originally enacted should be read to cover employees of
consolidated subsidiaries of public companies. Below we explain why.

2/

See, e.g., Brown v. Thompson, 374 F.3d at 258-59 (holding that clarifying
amendments merely clarify existing law and do not implicate constitutional
concerns about retroactivity); Abkco v. Music, Inc., 217 F.3d 684, 679 (9 th
Cir. 2000) ("Normally when an amendment is deemed clarifying, rather than
substantive, it is applied retroactively"); Piambra Cortes v. American
Airlines, Inc., 177 F.3d 1272, 1283 (11 th Cir. 1999) (holding that "concerns
about retroactivity are not implicated when an amendment tha~ takes effect
after the initiation of a lawsuit is deemed to clarify relevant law rather than
effect a substantive change in the law"); Cefalu v. East Baton Rouge Parish
School, 117 F.3d 231,232-33 (5 th Cir. 1997) (granting a petition for
rehearing and withdrawing an earlier decision in light of a statutory
amendment in which Congress clarified its intent).
-5­

II.

In Order to Effectuate Congressional Intent to Prevent Fraud by
Improving the Accuracy of Financial Statements in the Exchange Act
Filings of Reporting Companies, Section 806 Should Be Interpreted to
Extend Whistleblower Protection to the Employees of Subsidiaries
Whose Results Are Consolidated with the Parent's Financial Statements.
A.

The Financial Results of Consolidated Subsidiaries Are an
Integral Part of the Reports Filed by Reporting Companies
Because, for Accounting Purposes, the Parent and the
Consolidated Subsidiaries Are Considered to Be a Single
Economic Entity.

The coverage of the whistleblower protections in Section 806 is expressly
linked to the Exchange Act provisions that require companies to file reports that
contain financial statements. These financial statements, in turn, treat a reporting
company's consolidated subsidiary as a part of the reporting company-like an
unincorporated division of the company. It follows that, in order to prevent the
whistleblower protections from being frustrated with respect to a subsidiary's
employees who disclose the falsity of the financial statements, Section 806 must
likewise treat the consolidated subsidiary as a part of the reporting company.
-

Section 806 prohibits "any company with a class of securities registered
under section 12 of' the Exchange Act, or "that is required to file reports under
section 15(d)" of the Exchange Act, "or any officer, employee, contractor,
subcontractor, or agent of such company" from discriminating against an employee
for engaging in protected whistleblowing activity such as reporting securities fraud
-6­

to a supervisor or to the Commission. Sections 12 and f5(d) of the Exchange Act,
in turn - - together with Exchange Act Section 13 and Commission regulations - ­
require the financial results of subsidiaries that are controlled by a reporting
company to be consolidated with the reporting company's results in Commission
filings.
Specifically, Sections l2(a) and (b) ofthe Exchange Act require that, before
a security may be sold on a national securities exchange, an issuer must register the
securities by filing an application with the Commission. Section 12(g) of the
Exchange Act provides that an issuer of securities sold through interstate
commerce must file a registration statement, regardless of whether or not the
securities are sold over a national securities exchange, if the issuer meets certain
size and ownership standards. The application and registration statement must
contain detailed information regarding the issuer and "any person directly or
indirectly controlling or controlled" by the issuer, including audited balance sheets,
profit and loss statements, and other information as the Commission may require by
rule or regulation. See Section l2(b)(1). Section l5(d) of the Exchange Act
requires periodic financial reports to be filed by a company that has registered an
offering of securities under the Securities Act of 1933.

-7­

Every issuer of securities registered under Section 12 or required to report
under Section 15(d) must file the reports required by Section 13 of the Exchange
Act. Under Section 13, the Commission may prescribe the manner in which
financial information is to be reported, including "where the Commission deems it
necessary or desirable" the filing of "separate and/or consolidated balance sheets or
income accounts of any person directly or indirectly controlling or controlled by
the issuer," a requirement that includes subsidiaries (emphasis added).
In accordance with the authority granted to it by Sections 12, 13, and 15(d),
the Commission promulgated Rule 3A-02 of Regulation S-X, 17 C.F.R. 210.3A-02.
Under Rule 3A-02 an issuer generally "shall consolidate entities that are majority
owned and shall not consolidate entities that are not majority owned. "3./ The rule

JJ

Rule 3A-02 further provides:
The determination of majority ownership requires a careful analysis of
the facts and circumstances of a particular relationship among the
entities. In rare situations, consolidation of a majority owned
subsidiary may not result in a fair presentation, because the registrant, .
in substance, does not have a controllingfinancial interest (for
example, when the subsidiary is in legal reorganization or in
bankruptcy, or when control is likely to be temporary). In other
situations, consolidation of an entity, notwithstanding the lack of
technical majority ownership, is necessary to present fairly the financial
position and results of the operations of the registrant, because of the
existence of a.parent-subsidiary relationship by means other than
record ownership of voting stock.
-8­

explains that consolidated financial statements are required because "[t]here is a
presumption that consolidated statements are more meaningful than separate
statements and that they are usually necessary for a fair presentation when one
entity directly or indirectly has a controlling financial interest in another."
When applying Rule 3A-02 of Regulation S-X, preparers of financial
statements look for guidance to FASB Accounting Standards Codification at Topic
810 Consolidation (FASB 2008) ("Topic 810 Consolidation ''), issued by the

Financial Accounting Standards Board ("FASB"), which provides further
elaboration concerning the need for consolidation. In essence, Topic 810
Consolidation advises that, when one business organization controls another, their

financial statements should be consolidated because the financial statements
represent the financial condition of a single company, such that separate statements
make little sense. Topic 810 Consolidation advises that "[i]n the preparation of
consolidated financial statements, intercompany balances and transactions shall be
eliminated." (emphasis added). Topic 810 Consolidation goes on to explain:

In all cases, the company "should clearly explain the accounting policies
followed" including "any departure from the normal practice of consolidating
majority owned subsidiaries and not consolidating entities that are less than
majority owned."
-9­

As consolidated financial statements are based on the assumption that they
represent the financial position and operating results of a single economic
entity, such statements shall not include gain or loss on transactions among
the entities in the consolidated group (emphasis added.).
B.

Section 806 Is Most Reasonably Interpreted as Extending
Whistleblower Protection to Employees of Consolidated
Subsidiaries.

The Commission agrees with the decisions in Morefield and Walters that,
despite the fact that subsidiaries are J).ot expressly listed as covered entities, the
language, purpose and structure of the statute indicate that they should be viewed
as part of the same "company," that is a reporting company parent. 11 First of all,
in covering reporting companies, Congress wished to encourage whistleblowing
concerning violations that could render the financial statements of those companies
inaccurate or misleading. It is clear from the Commission's requirements
concerning consolidated subsidiaries that misconduct at a consolidated subsidiary
could lead to defects in the parent's financials filed with the Commission, so it is
reasonable to conclude that Congress intended the protecti~ms to extend to
employees of the subsidiaries.
Second, a statute should be construed to avoid absurd results. See Ark. Dairy

11

An issue that is not raised by the parties in this case, in which the
complainant named both parent and subsidiary, is whether the parent or the
subsidiary or both are the proper respondent in a proceeding under Section
806.
-10­

Coop. Assoc., Inc. v. Dept. ofAgric., 573 F.3d 815, 829 (D.C. Cir. 2009).
Interpreting Section 806 not to cover consolidated subsidiaries would mean that
whether awhistleblower was protected would turn on whether he worked for the
parent or an unincorporated division rather than for a subsidiary, even though the
consequences of his reporting misconduct would be exactly the same in both
situations. It seems quite unlikely that Congress intended that outcome. Nor would
it make sense to exclude from whistleblower protection the employees most likely
to know of misstatements in consolidated financial statements, such as
misstatements concerning inventory and sales at subsidiaries where inventory is
maintained and sales staff is actually located.
Next, Section 806 explicitly covers contractors and subcontractors, entities
that are less under the control of the parent than a consolidated subsidiary and that
would seem less likely to be the source ofmisreporting with respect to the parent's
financials than would a subsidiary. If Congress wanted these more attenuated
entities to be covered, We believe it is logical to conclude that it wanted
subsidiaries to be covered, as well.
The Supreme Court has adopted a similar approach in interpreting Section 1
of the Sherman Act, which prohibits any "contract," "combination" or "conspiracy"
in restraint of trade. In Copperweld Corp. v. Independence Tube Corp., 467 U.S.
-11­

752 (1984), the Court held that a parent and its wholly-owned subsidiary were
incapable of conspiring together for purposes of Section 1, even though under
corporate law the subsidiary was a separate entity. The Court reasoned that, to
effectuate the purposes of the Act, the parent and the subsidiary should be treated
as a single entity with a single set of interests, and that the analysis should not tum
on whether the parent had chosen to organize a part of its business as a division or
a subsidiary. Subsequent decisions have held that the same rule applies with
respect to a subsidiary that is not wholly-owned when the parent has legal control
of the subsidiary or a unity of interests between parent and subsidiary exists. See,

e.g., Bell Atlantic Business Systems Service v.Hitachi Data System Corp., 849 F.
Supp. 702, 706 (N.D. Cal. 1994) (legal control); In re Bascom Food Products

Corp., 715 F. Supp. 616, 629 n.19 (D.N.J. 1989) (unity of interests).

C.

The Legislative History Shows That a Basic Objective of SOX
Was to Protect Whistleblowers in Order to Foster Disclosure of
Fraud, Including Fraud Involving Subsidiaries, an Objective That
Will Be Frustrated If Employees of Consolidated Subsidiaries Are
Not Protected.

SOX was enacted "to address the systemic and structural weaknesses
affecting our capital markets which were revealed by repeated failur~s of auditing
effectiveness and corporate financial and broker-dealer responsibility in recent
months and years." S. Rep. No. 107-205, at 2. As the Second Circuit further
-12­

explained:
Revelations of mass corporate fraud, most vividly in connection with the
Enron Corporation, threatened to destroy investors' faith in the American
financial markets and, in so doing, to jeopardize those markets and the
American economy. Congress recognized that the problem was an
intractable one, and that a number of strong enforcement tools would be
necessary - - from new regulations and reporting requirements, to expanded
oversight, to new criminal provisions.
Bechtel v. Competitive Tech., Inc., 448 F.3d 469,484 (2d Cir. 2006). The court

explained that the legislative history concluded that "for any of these new tools to
work, the law had to protect whistleblowers from retaliation, because 'often, in
complex fraud prosecutions .... [I]nsiders are the only firsthand witnesses to the
fraud.'" Id. (emphasis in original) (quoting S. Rep. No. 107-146, at 10 (2002)).
"Congress therefore made whistleblower protection central to the Act." Id.
During the legislative process that led to the passage of SOX, the
whistleblower Congress most had in mind was Sherron Watkins, an employee of
Enron Corporation who attempted to bring to light financial reporting irregularities
at the company. As reported by Senator Leahy, "[w]e learned from Sherron
Watkins that these corporate insiders are key witnesses that need to be encouraged
to report fraud and help prove it in court." The Legislative History ofthe SarbanesOxley Act of2002: Accounting Reform and Investor Protection Issues Raised by
Enton and other Public Companies; Hearings, Senate Committee on Banking,
-13­

Housing, and Urban Affairs, 107 th Cong., Vol. III 1632 (GPO 2003) ("Senate
Legislative History"). During the hearing, it was often noted that Enron had an
extremely complex corporate structure, including as many as 3,000 subsidiaries and
other off-balance sheet entities capable of concealing important financial
information. ~/
With this legislative history, it would make little sense to conclude that the
employees of non-public subsidiaries are not protected by SOX's whistleblower
protections. Indeed, a brief review reveals that, on average, the companies that
comprise the Dow Jones 30 have well over 100 subsidiaries each, excluding one
company that has thousands of subsidiaries. Thus, the purposes of SOX's
whistleblower protection provision will be stYmied if it is construed to mean that
the employees of non-public subsidiaries are not covered by Section 806.

D.

Textual arguments to the contrary are not persuasive.

It has been argued that the use of the phrase "publicly traded companies" in

the title of Section 806 indicates that the scope of the provision does not include
privately held subsidiaries. However, this phrase is not found in the text of Section

'jj

See, e.g., The Enron Collapse: Impact on Investors and Financial Markets ­
- Joint Hearing before the H. Subcomm. on Capital Markets and the
Subcommittee, l07 th Congo 57, 2001 WL 34078734, at 57 (2001); Senate
Legislative History, Vol. III 1632.
-14­

806 itself, but only in the title. Titles "are not meant to take the place of the
detailed provisions of the text." Bhd. ofR.R. Trainmen v. Baltimore & Ohio R. Co.,
331 U.S. 519, 528 (l947); see also Whitman v. Am. Trucking Ass 'n, 531 U.S. 457,
483 (200 I). In this case, moreover, the phrase "publicly traded companies" sheds
no light on what Congress intended~with respect to subsidiaries, and it should not
be used as a basis to frustrate the operation of the statute. The obvious reason for
using the term "publicly traded companies" in the title is to refer in a concise way
to the statute's requirement that a Section 12 or Section 15(d) company - - in this
case Siemens AG - - be involved and not to exclude non-public subsidiaries.
Decisions holding that employees of non-public subsidiaries are not covered
under Section 806 often reason that, if Congress had intended to cover such
employees, it could easily have stated that subsidiaries are covered, as it did with
regard to internal controls in SOX Section 301, which created Section 10A(m) of
the Exchange Act, 15 U.S.C. 78j-l(m), and SOX Section 302(a)(4)(B), 15 U.S.C.
7241 (a)(4)(B). See, e.g., Malin v. Siemens Medical Solutions Health Services, 638
F. Supp. 2d 492,500 (D. Md. 2008); Rao v. Daimler Chrysler Corp., 2007 WL
1424220, at *4, 2005 O.S.H.D. (CCH)~32,891 (E.D. Mich. 2007); Lowe v.
Terminix Intern. Co., LP, 2006-S0X-89, slip. op. at 7 (Sept. 15,2006); see also
.Teutsch v. ING G, N. v., 2005 -SOX-IOl, 102, 103, slip. op. at 4 (Sept. 25, 2006).
-15­

It may be argued, however, that these provisions actually support our

interpretation, because the inclusion of subsidiaries in Section 10A(m) and SOX
302 supports the argument that the drafters of Section 806 similarly intended
employees of non-public subsidiaries to be covered by the whistleblower
protections.

In SOX Section 302(a)(4)(B), Congress directed the Commission to adopt
rules requiring specified corporate officers who sign annual and quarterly reports to
certify that they "have designed such internal controls to ensure that material
information relating to the issuer and its consolidated subsidiaries is made known
to such officers by others within those entities" (emphasis added).

Section

IOA(m)(4) requires the Commission to direct the self regulatory agencies to have
listing requirements that cover the items set forth in Sections IOA(m)(2)-(6).
Among these required items is that the audit committee of each listed issuer
establish procedures for "[t]he receipt, retention, and treatment of complaints
received by the issuer regarding accounting internal controls." Section
IOA(m)(4)(A) (emphasis added). As just explained, SOX Section 302's
certification requirements with respeCt to internal controls extend to public
companies' non-public "consolidated subsidiaries."

-16­

Section 10A(m) further suggests not only that subsidiaries be included in
internal controls, but that employees of subsidiaries are among those that Congress
anticipated might file complaints concerning deficiencies in internal controls.
Notably, under Section IOA(m)(4)(B), the new system Congress required audit
committees to establish for receiving complaints by listed companies must include
provisions for "the confidential, anonymous submission by employees of the issuer
of concerns regarding questionable accounting or auditing matters." It would make
little sense for Congress to require the establishment of a procedure for the
treatment of complaints concerning, among other things, the internal controls of
subsidiaries unless it contemplated that employees of subsidiaries would be among
those filing such complaints. See Morefield, slip. op. at 3.

III.

Other Interpretations of Section 806 that have been followed in some
decisions do not effectuate Congressional intentions as well as the
interpretation we endorse.
What most stands out about the decisions that conclude that employees of

subsidiaries are not covered, or that they are covered only in limited circumstances,
is the meager consideration given in these decisions to the auditing and financial
disclosure requirements in force at the time SOX was enacted and to the
requirements of SOX. Given that Congress expressly stated in Section 806 that it
is applicable to companies that have a class of securities registered under Section
-17­

12 or file reports under Section 15(d), the lack of attention to those provisions is a
significant oversight. These decisions also fail to demonstrate an appreciation of
the legislative history of SOX, discussed above.

A.

Decisions Suggesting That Subsidiaries Can Never Be Covered
Are Incorrect.

Some decisions have indicated that employees of subsidiaries can never be
covered by Section 806. See, e.g., Teutsch v. ING Graep, N. V:, 2005 -SOX-IOl,
102, 103 (Sept. 25, 2006). We believe these decisions are incorrect for the reasons
we have given above. What is more, they ignore the fact that the statute includes
"agents" of reporting companies, which we discuss immediately below, so it should
at least be clear that a subsidiary acting as an agent is covered.
A number of these decisions have focused on a small piece of legislative
history, taken out of context, to support the conclusion that subsidiaries are not
covered. For example, in Teutsch, the ALJ reasoned that "[t]he legislative history
ofthe Act indicates that Congress did not intend for the Act to view subsidiaries
and parent companies as one entity" because Senator Sarbanes had stated, while
discussing the legislation before the Senate, that he wished to "make it clear that
[the Act] applies exclusively to public companies registered with the Securities and
Exchange Commission." Slip op. at 4 (citing 148 Congo Rec. S7351 (dailyed. July

-18­

25,2002) (statement of Senator Sarbanes)). "Therefore," the ALI continued, "[t]o
include non-publicly traded subsidiaries as a 'company' merely because it has a
publicly traded parent, would widen the scope of the Act beyond the intentions of
Congress." Slip op. at 4. fl./
As pointed out by the ALI in Walters, however, Senator Sarbanes was not
addressing whether Section 806 extended to subsidiaries of reporting companies.
Slip op. at 18. Rather, he was differentiating between situations where no reporting
company was involved and situations like that here, where there is a reporting
company present - - Siemens AG. 1/

fJ./

Accord Brothwell v. Am. Income Life, 2005-S0X-57, slip. op. at 6 (Sept.
19,2005) (same reasoning as Teutsch); see also, e.g., Lowe v. Terminix Int'l
Company, LP, 2006-S0X-89, slip. op. at 13-14 (Sept. 15,2006) (holding
that Section 806 does not encompass non-reporting subsidiaries); Grant v.
Dominion East Ohio Gas, 2004-S0X-63, slip. op. at 33 (March 10,2005)
(holding that "the plain language of the statute provides no cause of action
against a non-public subsidiary standing alone"); Minkina v. Affiliated
Physicians Group, 2005-S0X-19, slip. op. at 6 (Feb. 22, 2005) (holding that
"there is nothing in the language of [SOX] or its legislative history that
suggests Congress intended to bring the employees of non-public
contractors, subcontractors, and agents under the protective aegis of section
806").

1/

Specifically, Senator Sarbanes was addressing concerns that small
accounting firms would be required to comply with some provisions of the
Act - - the so-called "cascading-down" argument. Senator Sarbanes again.
stressed: "We are talking here about public companies because that is where
the investor protection issue comes in * * *. So that the nonpublic
companies - - none ofthe limitations would apply in that circumstance." He
-19­

B.

Interpreting the Section as Only Applying to Subsidiaries When
They Are Acting as Agents of the Parent, and Relying on
Traditional Principles of Agency and State Corporate Law to
Determine the Liability of the Parent, Does Not Give Full Effect to
Congress's Intent.

Section 806 prohibits discrimination by "agents" of reporting companies,
and a number of decisions hold that a subsidiary that acts as an agent of the parent
under common law principles is covered by the statute. For example, in

Klopfenstein v. PCC Flow Tech. Holdings, Inc., ARB No. 04-149 (May 31,2006)­
- the Board decision that was relied upon by the ALl in deciding the case now
under review - - the complainant named a subsidiary of a reporting company and an
officer of the subsidiary, alleging retaliation for whistleblowing activity. The
Board held that a subsidiary of a parent company may be sued as an agent under

further explained:
I just want to address the cascading-down argument that we are
hearing that says, I am a small accounting firm in a small town and I
represent small businesses, none ofwhich are publicly listed. They
view this with a sense of horror because they think, what is going to
happen to the publicly-listed company is going to reach them. * * *
Obviously, it is clear all companies and those who audit them, once
they list, have different responsibilities because you are drawing a
line in the public market and the investors. So it is a different arena
in which we are dealing.

Senate Legislative History Vol. II 1074 (emphasis added).
-20­

Section 806. The Board reasoned that "nothing" in "the common meaning of the
term 'agent' gives us reason to conclude that a subsidiary, or an employee of a
subsidiary, cannot ever be a parent's agent for purposes of the employee protection
provision." Slip op. at 13-14 (emphasis in original). The Board explained:
Whether a particular subsidiary or its employee is an agent of a public parent
for purposes of the SOX employee protection provision should be
determined according to principles of the general common law of agency. * *
* Although it is a legal concept, 'agency' depends upon the existence of
required factual elements: the manifestation by the principal that the agent
shall act for him, the agent's acceptance of the undertaking and
understanding of the parties that the principal is to be in control.
Id. (citing Rest. (Second) Agency §1(I), comment (b) (emphasis in original Board
decision)). BJ Other cases have found the parent may be held liable under alter-ego

fl/

Several decisions have approved the use of principles of agency to decide
when a parent may be liable under the whistleblowerprotection provision of
SOX. See, e.g., Brady v. Calyon Sec. (USA), 406 F. Supp. 2d 307, 318 n.6
(S.D.N.Y. 2005) (stating that a parent may be held liable under
circumstances where the subsidiary acts as an agentof the parent); Rao v.
Daimler Chrysler Corp., 89 Empl. Prac. Dec. ~ 42,814,2005 O.S.H.D.
(CCH) ~ 32,891, 2007 WL 1414220 (E.D. Mich. 2007) (holding that
"common law agency principles should apply in determining whether [the
subsidiary] was acting as an agent [of the parent] in its actions toward
plaintiff'); Savastano v. WPP Group~ PLC, 2007-S0X-34 (July 18,2007)
(holding that "for an employee of a non-public subsidiary to be covered
under Section 806, the non-public subsidiary must act as an agent of its
publicly held parent, and the agency must relate to employment matters");
Kalkunte v. DVI Fin. Services, Inc., 2004-S0X-56 (July 18, 2005) (holding
the public parent liable under respondeat superior liability), ajJ'd, ARB No.
05-139 and 05-140 (Feb. 27, 2009); Mann v. United Space Alliance, LLC,
2004-S0X-15 (Feb. 18,2005) (holding the parent firms not liable under
Section 806, in part, becausethe employer, a non-public subsidiary, was not
-21­

theory or when the corporate veil may be pierced. 2/
We believe that Section 806 embodies a Congressional determination that
employees of both"parents and consolidated subsidiaries should be protected
regardless of whether the requirements of agency happen to be met by the
subsidiary in a particular case, or whether there is some other basis for holding the
parent liable. We therefore believe that the agency cases rest on an underinclusive
reading of the statute. I0/

an agent of the parent firms).

2/

Dawkins v. Shell Chemical, LP, 2005-S0X-4l, slip. op. at 4-5 (May 16,
2005) (holding the public parent not liable to an employee of a non-public
subsidiary because the complainant did not justify piercing the corporate
veil); Platone v. Atlantic Coast Airlines Holdings, Inc., 2003-S0X-27, slip.
op. at 60-61 (Apri130, 2004) (holding the public parent liable under Section
806 under the alter ego theory).

10/

If the position that reporting company includes any consolidated subsidiary
is rejected by the Board, the agency theory would be available to impose
liability. In that even, the Board should look to the Commission's amicus
brief in the Fifth Circuit in Klopfenstein v. Administrative Review Board,
Case No. 10-60144 (5 th Cir.). In that brief the Commission emphasized that
Section 806 is not liniited to agents who act on behalf ofthe public
company in retaliating against a whistleblower.
-22­

C.

The Use of the "Integrated Enterprise Test" to Determine
Liability of Public Parent Corporations to Employees of Non­
Public Subsidiaries is Erroneous.

Still other decisions have used an "integrated enterprise test" in determining
when the employees of a subsidiary are covered by Section 806. See Carciero v.

Sodexho Alliance, SA, ALl No. 2008-S0X-12 (Oct. 5,2009); Merten v. Berkshire
Hathaway, Inc., ALl No. 2008-S0X-040 (Oct. 21, 2008). The integrated
enterprise test, which was developed by the National Labor Relations Board, is
widely used in federal employment law cases to determine when two or more
entities are integrated enterprises such that they should be considered one
enterprise for the purpose of meeting the minimum threshold requirements of
various labor laws, including the minimum dollar amount in interstate commerce
for application of the National Labor Relations Act and the minimum number of
employees for application of Title VII, the Americans with Disabilities Act
("ADA"), and the Medical Leave Act.
Under the integrated enterprise test, an employee of a subsidiary would only
be covered by the whistleblower protection provision after the application of a
four-factor test to determine whether the subsidiary and its parent should be viewed
as one integrated enterprise. The four factors considered under the integrated
enterprise test are: (1) the interrelation of operations; (2) common management; (3)
-23­

centralized control of labor relations; and (4) common ownership or financial
control. Swallows v. Barnes & Noble Book Stores, Inc., 128 F.3d 990, 994 (6th Cir.·
1997); Schweitzer v. Advanced Telemarketing Corp., 104 F.3d 761, 764 (5 th Cir.
1997). Thus, in Kang v. U Lim America, Inc., 296 F.3d 810, 816 (9 th Cir. 2002), a
parent corporation with six employees was held to be an integrated enterprise with
a subsidiary such that the parent corporation met the fifty employee minimum
threshold for application of Title VII.
In an amicus brief previously filed before the Board in this case, the Solicitor
of the Department of Labor, on behalf of the Assistant Secretary of Labor for
Occupational Safety and Health, urged the Board to apply the integrated enterprize
test to determine whether employees of the subsidiaries of reporting companies are
protected under Section 806. See Brief of the Assistant Secretary of Labor for
Occupational Safety and Health as Amicus Curiae, Johnson v. Siemens Building
Technologies, Ins., and Siemens AG., ARB Case No. 08-032 (Mar. 14,2008).
The Commission agrees with one of the underlying premises of the cases
applying the integrated enterprise test to Section 806, namely that the scope of·
coverage of the statute should be determined based on the language, structure and
purposes of the particular provision, not on the mechanical application of corporate·
law principles. However, the integrated enterprise test was developed to solve
-24­

problems arising under labor law, not in the context of securities regulation and the
rules governing consolidated financial reporting, and it consequently does not
address the factors relevant to determining whether a reporting company includes
its consolidated subsidiaries. The interpretation offered above more accurately
reflects Congress's intent with respect to SOX.
CONCLUSION

For the forgoing reasons, the Commission urges the Board to hold that
reporting companies under Section 806 include not only the parent, but also
consolidated subsidiaries, so that employees of those subsidiaries are covered by
the protections extended to whistleblowers under Section 806 of SOX.
MARKD.CAHN
Deputy General Counsel
JACOB H. STILLMAN
Solicitor
MARK PENNINGTON
Assistant General Counsel

~.CAP

E
Special Couns,el to the Solicitor
Securities and Exchange Commission
100 F. Street, N.E.
Washington, DC 20549-8030B
(202) 551-5122 (Capute)
caputea@sec.gov
-25­

ADMINISTRATIVE REVIEW BOARD

DEPARTMENT OF LABOR
No. 08-032

In the matter of
CARRI S. JOHNSON,
Complainant,
v.
SIEMENS BUILDING TECHNOLOGIES, INC. and
SIEMENSAG,
Respondents.

CERTIFICATE OF SERVICE

I, Allan A. Capute, am a member of the bars of Maryland and the District of
Columbia, and I hereby certify that on the 16th day of July, 2010, I caused to be
served 2 copies of the BRIEF OF THE SECURITIES AND EXCHANGE
COMMISSION, AMICUS CURIAE, to be mailed by United Parcel Service air
mail to each of the parties, counsel, and corporate representatives listed on the
attached Service List supplied by the Administrative Review Bo.ard.

~~

/Allan A._ Capute
Special Counsel to the Solicitor
Securities and Exchange Commission
100 F Street, N.E.
Washington, D.C. 20549-8030B
(202) 551-5122; caputea@sec.gov

SERVICE LIST

Curtis Wood
Director of Teammate Relations
FlightSafety International
10770 East Briarwood Avenue, Suite 100
Centenial, CO 80112
John J. Carciero
35 Green Street
Woburn, MA 01801
Kurt A. Powell, Esq.
Huton & Williams, LLP
Bank of America Plaza
500 Peachtree Street, N.E..
Suite 4100
Atlanta, GA 30308-2216
E. James Perollo, Esq.
Bay State Legal SVS, LLC
60 State Street
Suite 700
Boston, MA 02109
Sodexho, Inc.
9801 Washington Blvd.
Attn: Law Department
Gaithersburg, MD 20878
Kennon Mara
199-20 Union Turnpike, Apt. E1D1
Kew Gardens, NY 11415
Sempra Energy Trading, LLC
58 Commerce Road
Stamford, CT 06902

Thomas McKinney, Esq.
Proskauer Rose, LLP
1585 Broadway
New York, NY 10036-8299
Directorate of Enforcement Programs
U.S. Department of Labor, OSHA
Room N3119, FPB
200 Constitution Ave.,N.W.
Washington, DC 20210
Associate Solicitor
Division of Fair Labor Standards
U.S. Department of Labor
Room N2716, FPB
200 Constitution Ave.,N.W.
Washington, D.C. 20210
Nickole Winnett, Esq.
Office of the Solicitor
U.S. Department of Labor
200 Constitution Ave., N.W.
Washington, D.C. 20210
Rajesh Nayak, Esq.
Special Assistant to the Solicitor
Office of the Solicitor
U.S. Department of Labor
200 Constitution Ave., N.W.
Washington, D.C. 20210
Regional Administrator
Region 5
U.S. Department of Labor
RoomN-3244
230 South Dearborn Street
Chicago, IL 60604

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/agency%3Asec%3A27d2fa4fb99b87df. Public record. Not legal advice.