[For decisions discussing whether reputational damages are available under SOX, see SOX Digest, Special Damages.]
PURPOSE OF SOX'S REMEDIAL PROVISIONS IS RESTITUTION RATHER THAN COMPENSATION
In Schmidt v. Levi Strauss & Co., No. 5:05-cv-01026 (N.D.Cal. Mar. 28, 2008), the court in considering the type of remedy at stake in a SOX whistleblower complaint for purpose of deciding whether that provision of SOX includes a right to a jury trial, held that "the purpose of 1514A's remedial provisions is restitution rather than compensation." Slip op. at 9. The court stated that even though the section also provides for certain monetary awards, such remedies appear to be restitutionary or otherwise incidental to or intertwined with the injunctive relief. According to the court, the provision does not permit a broad claim for compensatory or special damages, but particularly for (1) back pay with interest, and (2) compensation for any special damages sustained as a result of the discrimination. The relief is restitutionary in nature because it seeks to restore plaintiffs to their status quo had the retaliation not occurred. It does not represent discretionary monetary relief.
ADMINISTRATIVE LAW JUDGE DECISIONS
DAMAGES; 401K PLAN; COMPLAINANT NOT YET ELIGIBLE WHEN FIRED
In Platone v. Atlantic Coast Airlines Holdings, Inc., 2003-SOX-27 (ALJ July 13, 2004), the Complainant had not yet worked long enough for the Employer to be eligible to participate in a 401K plan when she was fired. The ALJ declined to award damages for 401K participation had the Complainant stayed in the Respondent's employ because there was no way to know whether the Complainant would have participated and, if so, how much she would have elected to have placed in the plan from her salary.
DAMAGES; FLIGHT BENEFITS
In Platone v. Atlantic Coast Airlines Holdings, Inc., 2003-SOX-27 (ALJ July 13, 2004), the Complainant asserted that her back pay award should include the value of free and discounted airline travel provided to Respondent's employees. The ALJ declined to make this award because of the difficulty of assigning value to the benefit, because there was no way to know how often the Complainant would have taken advantage of it, and because the benefit did not accrue under the Respondent's program.
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