Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Newman v. Lehman Brothers Holdings Inc.

United States Court of Appeals, First Circuit

August 20, 2018

BARBARA NEWMAN, Plaintiff, Appellant,
v.
LEHMAN BROTHERS HOLDINGS INC., GROUP BENEFITS PLAN, ET AL., Defendants, Appellees, METROPOLITAN LIFE INSURANCE COMPANY, ET AL., Defendants.

          APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Denise J. Casper, U.S. District Judge]

          Jason P. Steed, with whom Kilpatrick Townsend & Stockton LLP was on brief, for appellant.

          David W. Robinson, with whom Ruberto, Israel & Weiner PC was on brief, for appellees.

          Before Torruella, Lynch, and Kayatta, Circuit Judges.

          TORRUELLA, CIRCUIT JUDGE.

         This case concerns the requirement that administrative remedies be exhausted before a claim under the "whistleblower" protection provisions of the Sarbanes-Oxley Act of 2002 ("SOX"), 18 U.S.C. § 1514A, can reach federal court. Plaintiff Barbara Newman ("Newman") claims to have suffered retaliation for reporting violations of federal laws and regulations at her workplace, Lehman Brothers, Inc. ("Lehman Brothers") in 2008. The district court dismissed these claims pursuant to Fed.R.Civ.P. 12(b)(6). Newman appeals the dismissal of her claims as it pertains to a handful of the original defendants, namely: Lehman Brothers Holding Inc. Group Benefits Plan ("the Plan"), and a group of five corporations affiliated under the name Neuberger Berman ("the Neuberger defendants"). We affirm.

         I. Background

         In reviewing a district court's dismissal of a complaint for failure to state a claim, "we accept the [complaint's] well-pleaded facts as true and indulge all reasonable inferences therefrom in the plaintiff's favor." Jorge v. Rumsfeld, 404 F.3d 556, 559 (1st Cir. 2005). We may also "augment those facts with facts extractable from documentation annexed to or incorporated by reference in the complaint." Id.

         A. Factual Background

         In May 2007, Newman began working in the corporate communications department of Lehman Brothers. Her job was to draft communications that would "raise the profile" of both Lehman Brothers and of Neuberger Berman, which was then a wholly-owned subsidiary of Lehman Brothers and today is a small constellation of distinct corporations that together comprise the Neuberger defendants.[1]

         While at Lehman Brothers, Newman noticed that her coworkers were engaged in conduct that she suspected to be in violation of federal securities law. She reported these concerns to the Lehman Brothers "Alert Line" and to her supervisors. Subsequently, Newman was ostracized at work and ultimately terminated from her employment.

         Simultaneous to her whistle blowing activity, Newman requested disability benefits through the benefits plan administered by the Plan. Newman was approved for short-term disability benefits, but experienced difficulty in obtaining long-term and supplemental long-term disability benefits. Newman was terminated from her employment while on short-term disability benefits.

         On July 23, 2008, Newman filed a complaint ("the OSHA complaint") under § 806 of SOX with the Occupational Safety and Health Administration ("OSHA").[2] The OSHA complaint states that Newman was submitting a written complaint "within [ninety] days of the adverse action under [SOX]" because she was "retaliated against by Lehman Brothers Inc. through termination on April 23, 2008 via a phone call."

         The OSHA complaint then listed ten retaliatory actions that Newman accused Lehman Brothers of having taken against her. Among the list of "unfavorable employment actions" were "Discharge or layoff," "Blacklisting," "Disciplining," and "Denial of benefits." The OSHA complaint also provided a list of around thirty individuals accused of having violated SOX's whistleblower protection provision. The complaint concluded with a brief list of contradictory factual statements as to Newman's termination date, such as that "[o]n March 12, 2008, I was effectively terminated from Lehman Brothers when I took a sick day" but also that "[o]n April 23, 2008, I was terminated from Lehman Brothers." In September 2008, Newman supplemented her OSHA complaint with an interview with OSHA ("the OSHA interview"). See 29 C.F.R. § 1980.104(e) (stating that a complaint may be "supplemented as appropriate through interviews of the complainant").

         B. Procedural Background

         In January 2012, Newman's case began its tortuous path through the federal judiciary. We need not dwell on the details of this journey; it suffices to say that Newman began as a pro se plaintiff, and later acquired counsel and filed the operative Second Amended Complaint ("SAC"), which pursued claims under SOX and the Employment Retirement Income Security Act (ERISA), 18 U.S.C. § 502(a)(1)(B), against a large number of defendants. These claims have largely been dismissed or moved to other courts.[3]What remains of those claims is that which is before us now: an ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.