ARB CASE NO. 06-096
ALJ CASE NO. 2005-SOX-105
DATE: September 28, 2007
In the Matter of:
JOHN AMBROSE,
COMPLAINANT,
v.
U.S. FOODSERVICE, INC. and
ROYAL AHOLD, N.V.,
RESPONDENTS.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant:
Deborah Thompson Eisenberg, Esq., Brown, Goldstein & Levy, LLP, Baltimore, Maryland
For the Respondent U.S. Foodservice, Inc.:
Connie Bertram, Esq., Patricia Exposito, Esq.; Winston & Strawn, LLP;
Washington, District of Columbia
For the Respondent Royal Ahold, N.V.:
G. Stewart Webb, Jr., Esq., Venable LLP, Baltimore, Maryland
FINAL DECISION AND ORDER APPROVING SETTLEMENT
AND DISMISSING COMPLAINT WITH PREJUDICE
This case arose when the Complainant, John Ambrose, filed a complaint
with the United States Department of Labor’s Occupational Safety and Health
Administration alleging that the Respondent, U.S. Food Service, Inc., had
retaliated against him in violation of the whistleblower protection provisions
of the Sarbanes-Oxley Act of 2002
[Page 2]
(SOX).[1]
On April 17, 2006, a Department of Labor Administrative Law Judge issued an Approval
of Motions for Summary Decision, Dismissal of Amended Complaint & Hearing
Cancellation (Approval).
The Secretary of
Labor has delegated her authority to issue final administrative decisions in
cases arising under the SOX to the Administrative Review Board.[2]
Ambrose filed a timely petition requesting the Board to review the ALJ’s Approval.[3]
In response, the Board issued a Notice of Appeal and Order Establishing
Briefing Schedule.
On September 25,
2007, the parties submitted a “Joint Motion to Dismiss With Prejudice . . . “averring
that the parties had signed an agreement that fully settles this action.” The
SOX’s implementing regulations provide in pertinent part:
At any time after
the filing of objections to the Assistant Secretary’s finding and/or order, the
case may be settled if the participating parties agree to a settlement and the
settlement is approved by the . . . Board if a timely petition for review has
been filed with the Board.[4]
The parties
submitted the settlement to the Board for its review. Our examination reveals
that the settlement is intended to settle not only Ambrose’s SOX complaint, but
matters arising under other laws as well.[5]
Our authority to review settlement agreements
[Page 3]
is limited to the statutes
within our jurisdiction and is defined by the applicable statutes.[6]
Therefore, we have restricted our review of the Settlement Agreement to
ascertaining whether its terms fairly, adequately and reasonably settle this SOX
case over which we have jurisdiction and we have determined that the terms do
so settle the case. Accordingly, we APPROVE the Settlement and DISMISS
Ambrose’s complaint with prejudice.
SO ORDERED.
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
DAVID G. DYE
Administrative Appeals Judge
[1] 18 U.S.C.A. § 1514A (West 2002). SOX’s section 806 prohibits certain covered
employers from discharging, demoting, suspending, threatening, harassing, or in
any other manner discriminating against employees who provide information to a
covered employer or a Federal agency or Congress regarding conduct that the
employee reasonably believes constitutes a violation of 18 U.S.C.A. §§ 1341
(mail fraud), 1343 (wire, radio, TV fraud), 1344 (bank fraud), or 1348
(securities fraud), or any rule or regulation of the Securities and Exchange
Commission, or any provision of Federal law relating to fraud against
shareholders. Employees are also protected against discrimination when they
have filed, testified in, participated in, or otherwise assisted in a
proceeding filed or about to be filed relating to a violation of the aforesaid
fraud statutes, SEC rules, or federal law. Ambrose subsequently amended his
complaint to include Royal Ahold, N.V. as an additional respondent.
[2] Secretary’s
Order 1-2002 (Delegation of Authority and Responsibility to the Administrative
Review Board), 67 Fed. Reg. 64272 (Oct. 17, 2002); 29 C.F.R. § 1980.110(a)
(2007).
[3] 29 C.F.R. § 1980.110(a).
[4] 29 C.F.R. § 1980.111(d)(2).
[5] Confidential
Settlement Agreement, General Release and Waiver (Settlement) paras. 1, 5, 10.
[6] Saporito v. GE Med. Sys., ARB No. 05-009,
ALJ Nos. 03-CAA-001, 03-CAA-002, slip op. at 3 (ARB May 24, 2005).
