Vincent A. Beacom v. Oracle America, Inc. , 825 F.3d 376 ( 2016 )

United States Court of Appeals
For the Eighth Circuit
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No. 15-1729
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Vincent A. Beacom
lllllllllllllllllllll Plaintiff - Appellant
v.
Oracle America, Inc.
lllllllllllllllllllll Defendant - Appellee
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Securities and Exchange Commission
lllllllllllllllllllllAmicus on Behalf of Appellant(s)
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Appeal from United States District Court
for the District of Minnesota - Minneapolis
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Submitted: November 19, 2015
Filed: June 6, 2016
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Before SMITH, BYE, and BENTON, Circuit Judges.1
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1
This opinion is being filed by Judge Benton and Judge Smith pursuant to
Eighth Circuit Rule 47E.
BENTON, Circuit Judge.
Vincent A. Beacom sued Oracle America, Inc., alleging it violated Sarbanes-
Oxley and Dodd-Frank by firing him in retaliation for reporting that Oracle was
falsely projecting sales revenues. The district court1 granted summary judgment to
Oracle. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.
I.
Oracle is a publically-traded international corporation in the computer software
and hardware business. Its software business is divided into seven global business
units, including the Retail Global Business Unit, all of which are managed by a single
Executive Vice President. The Retail Global Business Unit (RGBU) is further divided
into three regions – North and South America (the Americas division); Europe, the
Middle East, and Africa; and the Asia-Pacific – all of which are run by a General
Manager. Robert K. Weiler was Executive Vice President of all global business units,
Michael Webster was General Manager of the RGBU, and Beacom was Vice
President of Sales in the Americas division of the RGBU.
The RGBU comprises a small portion of Oracle’s business, generating only
0.4% of Oracle’s $31 billion in revenue. RGBU Americas generated only 0.19% of
Oracle’s revenue.
When Webster took over as General Manager of the RGBU in February 2011,
he changed the method for projecting quarterly sales revenues. Previously, Oracle
used a bottom-up forecasting process. Sales representatives entered potential deals
into a database, indicating the deal’s value and the likelihood of closing before the end
1
The Honorable Donovan W. Frank, United States District Judge for the District
of Minnesota.
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of the quarter. The regional managers then adjusted the forecasts. Oracle compiled
this information and created projections using an automated program with guidelines
and criteria. Deals not meeting the criteria—such as those without a concrete close
plan or an implementation plan—were “best case” or “upside” deals, and not recorded
as projected revenue.
Webster shifted sales revenue projections from bottom-up to top-down. Using
information contained in the sales pipeline—that is, deals already in the works—and
historical conversion rates, Webster established the forecasting goals for each region.
This forecasting method resulted in higher projections than under Oracle’s traditional
GCM method. For instance, in the first quarter of fiscal year 2012 (June 1, 2011, to
August 31, 2011), Webster projected $16.4 million in sales for RGBU Americas; the
GCM method would have projected $12.9 million. Webster’s superior, Bob Weiler,
revised Webster’s projections based on his experience and discretion.
The first three quarters of 2012, RGBU Americas overprojected its revenues.
In Q1, it projected $16.4 million, but delivered about $13 million. In Q2, it projected
$27 million, but delivered about $20 million. In Q3, it projected $25 million, but
delivered about $15 million. Beacom alleges that as a result of the missed projections
and the discrepancy between Webster’s projections and the GCM model, Webster
directed salespersons at RGBU Americas to record deals that did not meet the GCM
criteria—such as deals only considered “best case” under GCM—so the GCM model
would closer reflect his projections.
Beacom says he repeatedly voiced concerns to Webster about the new
projections method, beginning as early as the second quarter. Beacom testified he was
concerned that “the wrong, incorrect, non-fact-based expectations were being sent up
through the management chains, which would be the foundation of an expectation sent
to” Wall Street, and that these inaccurate projections contributed to Oracle’s decline
in stock value.
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However, in each quarter, RGBU Americas was only a few sales away from
meeting projections. In Q1, for example, Beacom told Webster he could meet
projections if he closed deals on Discount Tire, Nordstrom, Toys R Us, and Academy.
Discount Tire alone was forecast as a $4 million deal. Beacom did not close the deal,
and RGBU America missed its projection by $4 million. In Q2, Beacom similarly
reassured Webster he could meet the projections, even telling his daughter the
projections were “tight but doable.”
In January 2012, Beacom and Webster attended a conference in New York City.
Webster told Beacom he had increased his projection from $25 million to $30 million.
Beacom then “challenged” Webster’s practice of “intentionally forecasting false
revenue commitments.” Soon after, Beacom met with HR Representative Jennifer
Olson to express concerns that Webster’s forecasts were setting the wrong expectation
for shareholders.
Weiler and Webster decided to fire Beacom in March (to avoid interrupting
Oracle’s fiscal quarter). On March 5, 2012, Oracle terminated Beacom on the basis
of poor performance and insubordination.
Beacom sued Oracle under the Sarbanes-Oxley Act and the Dodd-Frank Wall
Street Reform and Consumer Protection Act, alleging Oracle wrongly terminated him
in retaliation for his complaints about Webster’s revenue projections. The district
court granted Oracle’s motions for summary judgment. Beacom appeals.
II.
This court reviews de novo a grant of summary judgment. Pedersen v. Bio-
Med. Applications of Minnesota, 775 F.3d 1049, 1053 (8th Cir. 2015). Summary
judgment is proper if the moving party proves “there is no genuine dispute as to any
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material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a).
A.
Sarbanes-Oxley prohibits a publicly traded company from discharging an
employee in retaliation for providing information to a supervisor or another person in
the company with investigative authority about “any conduct which the employee
reasonably believes constitutes a violation of section 1341, 1343, 1344, or 1348, any
rule or regulation of the Securities and Exchange Commission, or any provision of
Federal law relating to fraud against shareholders.” 18 U.S.C. § 1514A(a)(1)(C).
A claim of retaliation proceeds under a burden-shifting framework. First, the
plaintiff must prove four elements by a preponderance of the evidence: (1) he engaged
in protected activity; (2) his employer knew he engaged in protected activity; (3) he
suffered an adverse employment action; and (4) the protected activity was a
contributing factor in the adverse action. Bechtel v. Admin. Review Bd., 710 F.3d
443, 447 (2d Cir. 2013). Then, the employer may prove by clear and convincing
evidence that it would have taken the same adverse action even if the employee had
not engaged in the protected activity. Rhinehimer v. U.S. Bancorp Inves., Inc., 787
F.3d 797, 805 (6th Cir.).
1.
Sarbanes-Oxley requires the employee to hold a reasonable belief that the
employer’s conduct amounts to fraud against the shareholders. The reasonable belief
standard has both an objective and a subjective component. Rhinehimer, 787 F.3d
at 811. The employee must subjectively believe the employer’s conduct violated a
law relating to fraud against shareholders, and the employee’s belief must be
objectively reasonable. Id.
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The Administrative Review Board (ARB) of the Department of Labor, which
adjudicates Sarbanes-Oxley whistleblower claims, first considered the objective
component of the “reasonable belief” standard in 2006. Platone v. FLYI, Inc., ARB
No. 04-154, 2006 WL 3246910 (ARB Sept. 29, 2006). In Platone, the ARB held that
to qualify as protected conduct, the employee’s complaint must (1) “definitively and
specifically” relate to one of the categories of fraud or securities violations listed
under Sarbanes-Oxley’s whistleblower statute, 18 U.S.C. § 1514A(a)(1); and (2)
“approximate . . . the basic elements” of the fraud or securities violation to which the
complaint relates. Id. at *8, adopted by Van Asdale v. Int’l Game Tech., 577 F.3d
989, 996-97 (9th Cir. 2009); Welch v. Chao, 536 F.3d 269, 275 (4th Cir. 2008); Allen
v. Admin. Review Bd., 514 F.3d 468, 477 (5th Cir. 2008). See also Day v. Staples,
Inc., 555 F.3d 42, 54 n.8 (1st Cir. 2009).
In 2011, however, the ARB rejected the Platone standard. Sylvester v. Parexel
Int’l LLC, ARB No. 07-123, 2011 WL 2165854, at *12 (ARB May 25, 2011) (en
banc). Instead, the ARB held that to satisfy the objective component of the
“reasonable belief” standard, the employee must simply prove that a reasonable
person in the same factual circumstances with the same training and experience would
believe that the employer violated securities laws. Id. at *11-12 (noting that the
Senate Report indicated Congress’s intent to impose “the normal reasonable person
standard”). Under the new Sylvester standard, an employee’s mistaken belief may still
be objectively reasonable. Id. at *13.
No court has rejected the Sylvester standard. The Second, Third, and Sixth
Circuits have deferred to the Sylvester standard, rejecting Platone’s “definite and
specific” standard. Nielsen v. AECOM Tech. Corp., 762 F.3d 214, 220-21 (2d Cir.
2014); Wiest v. Lynch, 710 F.3d 121, 131-32 (3d Cir. 2013); Rhinehimer, 787 F.3d
at 806. The Fourth and Tenth Circuits have addressed Sylvester, but found the
plaintiff satisfied the more rigorous “definite and specific” standard from Platone.
Feldman v. Law Enforcement Assocs. Corp., 752 F.3d 339, 344 n.5 (4th Cir. 2014);
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Lockheed Martin Corp. v. Admin. Review Bd., 717 F.3d 1121, 1132 n.7 (10th Cir.
2013).
This court, joining the Second, Third, and Sixth Circuits, adopts the Sylvester
standard.
2.
Under the Sylvester standard, Beacom must establish that a reasonable person
in his position, with the same training and experience, would have believed Oracle
was committing a securities violation. Rhinehimer, 787 F.3d at 811. This fact-
dependent inquiry is typically inappropriate for summary judgment. Id. “[T]he issue
of objective reasonableness should be decided as a matter of law only when no
reasonable person could have believed that the facts [known to the employee]
amounted to a violation or otherwise justified the employee's belief that illegal
conduct was occurring.” Id. (second alteration in original) (internal quotation marks
omitted).
RGBU Americas missed its projections by no more than $10 million.
Beacom—an Oracle salesperson and shareholder—would understand the predictive
nature of revenue projections. And, he would understand that $10 million is a minor
discrepancy to a company that annually generates billions of dollars. These facts
compel the conclusion that Beacom’s belief that Oracle was defrauding its investors
was objectively unreasonable, even under the less-stringent Sylvester standard.2
2
The summary judgment order is unclear whether it applied the Platone or
Sylvester standard. Because Beacom cannot meet the lower Sylvester standard, any
error was harmless.
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The district court did not err in granting summary judgment to Oracle on the
Sarbanes-Oxley claim.
B.
Dodd-Frank prohibits an employer from discharging a whistleblower for
“making disclosures that are required or protected under the Sarbanes-Oxley Act of
2002.” 15 U.S.C. § 78u-6(h)(1)(A)(iii). Since Beacom did not make a disclosure
protected under Sarbanes-Oxley, his claim under Dodd-Frank fails. The district court
properly granted summary judgment for Oracle on Beacom’s Dodd-Frank claim.
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The judgment is affirmed.
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