SETTLEMENTS IN SOX CASES; PROCEDURE WHERE IT IS UNCLEAR WHETHER A SETTLEMENT UNDERLIES A WITHDRAWAL
In Concone v. Capital One Financial Corp., ARB No. 05-038, ALJ No. 2005-SOX-6 (ARB Apr. 25, 2005), the ALJ had found in favor of the Respondent. An appeal to the ARB followed. The Complainant's attorney wrote to the ARB stating that "the parties have settled" and will file a "joint stipulation of settlement." Subsequently the parties sent the ARB a "Joint Stipulation of Dismissal" and a proposed Order. The stipulation only stated that the parties "hereby stipulate and agree to dismiss this action, with prejudice, in its entirety, each party to bear its own costs and attorneys' fees." The parties' proposed Order states that the parties submitted a Joint Stipulation of Dismissal" and it appears to the ARB it is 'just and proper to do so' . . . with prejudice . . . " Neither document referred to a settlement.
The ARB, therefore, issued an "Order Requiring Clarification," pointing out that under 29 CFR § 1980.111(c) a case at the ARB can be terminated by (1) before findings or an order becomes final, by withdrawing objections or (2) by settling the case and obtaining ARB approval of the settlement which will be filed with the ARB, per § 1980.111(d)(2). The clarification order noted that the initial letter indicated that there was a settlement between the parties that was not submitted to the ARB. The ARB ordered that the settlement be submitted to it. However, the ARB also stated: "If, instead, Concone intended to withdraw his objections to the findings, then he must so notify the Board in writing."
Subsequently, the parties filed a Joint Motion to Withdraw Joint Stipulation of Dismissal, and the Complainant filed a Notice of Withdrawal of Objections. The ARB, without elaboration, approved the withdrawal of objections and dismissed the appeal. Concone v. Capital One Financial Corp., ARB No. 05-038, ALJ No. 2005-SOX-6 (ARB May 13, 2005).
ADMINISTRATIVE LAW JUDGE DECISIONS
SETTLEMENT; FAILURE TO SUBMIT SETTLEMENT RESULTS IN ADJUDICATION ON MERITS BASED ON RECORD BEFORE THE ALJ (OR, WHERE COMPLAINANT “WITHDREW” OBJECTIONS TO OSHA FINDINGS, A FINDING THAT THE OSHA FINDINGS HAD BECOME THE FINAL FINDINGS OF THE SECRETARY)
In Di Giammarino v. Barclays Capital, Inc., 2005-SOX-106 (ALJ July 7, 2006), the Complainant, who had dual U.S. and Italian citizenship, was employed by a U.K. company, but claimed that he was really an employee of a U.S. branch, and that the entity that employed was merely an “accounting vehicle.” OSHA found no jurisdiction under SOX because the Complainant worked in the Respondent’s London offices and was discharged in London. The ALJ ordered preliminary briefing on the jurisdiction issue. The parties filed briefs, but later presented the supplemental authority of the decision of the federal district court in Carnero v. Boston Scientific Corp., 433 F.3d 1 (1st Cir. 2006), cert. denied No. 05-1397 (June 26, 2006). Later, the Complainant, through counsel, sought to withdraw the hearing request. Because it was unclear whether a settlement was involved, the ALJ had her legal technician contact the Complainant’s counsel, who advised that a settlement in fact was involved. The ALJ then issued an order directing the parties to either submit the settlement for approval or show cause why the case should not be dismissed for lack of jurisdiction. Neither party responded. Since the parties did not submit the settlement, the ALJ found that upon the withdrawal of the objection to the OSHA findings, those findings became final. Moreover, the ALJ found that under Carnero, the finding of a lack of jurisdiction was correct. The Complainant worked exclusively in the U.K. for a division of an international company based in the U.K.
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