twentieth two thousand and ten january twenty fourth two thousand and ten january twenty ninth two thousand and ten february fourth two thousand and ten february eighth two thousand  february eleventh two thousand and ten these are the dates that the appellate ramana long rocheleau last made internal and external complaints of illegal activity including all of c c p violations and s c c violations and payroll tax fraud to micro semi and to four separate federal agencies including the securities and exchange commission on february eleventh two thousand and ten counsel with respect we know that your client made  complaints but i guess the question i have is she needs to show that there was a violation of section fifteen fourteen a right that is correct what what's the best evidence that you have that she in good faith occurred several things or are first fifteen fourteen a two of the items two of the six enumerated items that an employee may complain about our mail fraud and wire fraud in this case the complain she was convinced constitute securities fraud with respect your honor in under section fifteen fourteen a she needed to complain about mail fraud or wire fraud and she complained that data was falsified data constitut violation of us lets what data was that it was the hiring data and the equal opportunity diversity data that micro some i was required to keep pursuing to all of c c p regulation and the reason that micro sum i was required to keep that is because it derived between twenty and forty percent of its business from contracts with the united states government and accordingly in order to keep that status as to be able to contract with the united states government micro some i needed to not only keep the data but also comply with the of c c p regulation and so your it's your view that if your client said these things occurred that we're supposed to assume that the government would have terminated its ability to contract with the government if  reported these things is that what we're supposed to believe no your honor what your what is required to be proven under the statute is that my client had both an objective lee reasonable belief and a subjectively reasonable belief that these items were in fact occurring ok but not only that they're occurring meant that they were material and in fact constitute securities fraud right not that they constituted securities fraud your honor that they constitute mail fraud or w sent mail fraud which in itself would then constitute securities fraud it's mail fraud which under fifteen fourteen a is its own separate category under fifteen fourteen a and employee may complain about one of six enumerated categories and the mail fraud two wire fraud three bank fraud about what is fraud in that sense just simply a false statement i thought the general understanding of mail fraud forgery and statements designed to potential fraud to shareholders in that the shareholders would have found it relevant that a patent critical to the company's operation and to the acquisition of a subsidiary in a merger that shareholders to the the company that  acquired the other company would have found the threat to put that patent material in terms of the stock price what evidence was there in the record though that these this information that allegedly was not provided to the government would have been material in the material meaning not just material that it was information not disclosed but material that it would actually lead to terminations of these contracts in this case we have the best possible measure of whether this is objective and that is at the o c p did conduct an investigation into ms russia as complaints and that it did find that micro some i was violating the o of c c p regulations and required micro semi to enter into a conciliation agreement where its hiring practices were therefore audited for a period of one to two years to ensure that it continued to comply i think that would hurt your case because it shows that what they didn't do is they didn't terminate the contract no your honor in this case miss russia would need to show an objective via mail and via the internet the communication of the false data constituted mail fraud in a way you know what constitutes a transmission but getting back to those corman's point there has to be a scheme to deprive them of property money or property that's in the statute thirt forty one thirteen forty three so what was the money or property to be deprived under the scheme of not handling an affirmative action hiring policies correctly the money or property that was at issue would have been the contracts that the united states government so we're back to that again so again what what is the evidence that this scheme was if we can call it that the scheme was intended to ensure that these contracts would continue that it wouldn't be terminated because microsoft i needed to make sure that they continued to be allowed to contract with the united states government know that that may i understand that the what's the evidence to suggest that that this evidence that was or the information that was not being provided the government the failure to do that would in fact lead to my term here at the death penalty for this corporation you know we have all kinds of things all kinds of rules companies have to comply with there don't always end up being the death penalty this would be the death penalty what evidence in the record was there  that the death penalty would actually happen here the evidence in the record is that it is one of the punishments the o of c c p could have given to micro some eye for its violation of these statutes in this case ultimately the c c p chose not to give in your words the death penalty for this company but it could have and that's something that microsoft i should have alerted its shareholders to and we know that because in my course of my ten k report micro some i did tell it shareholders when it was under audit by the i did tell its shareholders when it was under audit by federal trade organization but counsel with respect to your client made her report before the ten k was even due so how can she blame them for not telling shareholders when they had no obligation to disclose anything to the shareholders at the time period by the time period in which your client sent the report and in this case it's relevant to show that this was something that should have been reported that it did relate to shareholder fraud but you're saying that they did say it tell it later when when they had an obligation to report it my question is she made this report before they had an obligation to tell  that is one of the key issues in the case but doesn't that go back to what judge owens and i think actually judge carmen the same thing up and that's the materiality issue if if if there was no realistic belief on the part  f micro some incorporation that they were going to get the death penalty if they didn't do that they treated this is a de minimis non curat lex is that a violation of fifteen fourteen a yes your honor because it could have been and that's the question is was it reasonable and as the a r v has stated and it's a lesser decision and it was the second or third and six circuits have said the question of whether it was reasonable is a fact question and that's what we're here on this is  from the grant of a summary judgment motion the question of whether it was reasonable differing minds couldn't can certainly disagree that was should have been within the province of the jury in this case and that question was never sent to the jury this is an issue of whether obligation to disclose any of the shareholders at the time your client made the report because there wasn't due yet when the judge be entitled to say it was can't possibly be material or wasn't there well even do get that when you go to the jury when it know you are the that the judge was incorrect because that is one of the six and you are a categories under fifteen fourteen a setting let's say that the judge is correct in the shareholder fraud issue assuming assuming that is not your best issue you said right the shareholder to the us c c p was false data it was communicated via mail is communicated via the internet that in and of itself implicates mail fraud and wire fraud under section five hundred fourteen a and constitutes an object of lee reasonable belief that micro some i was engaged in fraudulent activity under the statute i thought your client alleged that she was directed to scrub the state of but she didn't do so she did not do so so and she went so if she didn't do so and it was reported then where was the fraud because someone else was and after she refused to do so and more junior employee was instructed to scrub the data did someone scrub the day i mean someone from the data yes your honor and that was alleged yes you have new year honors me please the court bruce may of stuart kane lp four appellee micro semi corporation your honour's i'd like to just briefly comment on a few of the factual assertions that we just heard and then if the court has no further questions of me i'd like to just briefly recite some of the key points underlying micro semites position there is not a shred of evidence in this record that anything false was submitted by micro semi by anybody micro semi to any government agency my learned opponent says that information was sent by mail and by internet you'll search in vain to find any evidence in the record that such was done and at her deposition plaintiff testified that no one asked her to falsify any data and in fact she never did so instead her point was someone namely a consultant used for a firm of action compliance had asked her to scrub da and that's all it was to her testimony the word scrub was used and we've cited some trade gifts in areas which all agree scrub means to clean up data meaning remove their errors and then consistencies has nothing to do with false the cation so this this is one instance your honor where there's a lot of time been spent on this appeal in the briefs on on issues that are not fairly presented to this court this is p o presents really one question and that is whether the district court properly found that a reasonable person miss roche loans shoes would not believe that micro semi had violated or was planning to violate to violate or was intending to violate any of the six predicate offenses under section eight zero six of socks sarbanes oxley or section i twenty two the dock frank yet whistleblower protection of those laws is limited to claimants who have an objective leave reasonable be belief that one of those six predicate offenses has been committed and that determination is usually decided by the judge or jury well when the facts are undisputed it presents a question of law for the judge for the court  this is an instance where the summary judgment procedure is an effective tool for achieving justice rob preserving the court's precious resources this court was fully informed i should say the court below was fully informed of the hundred thirty the were disputed and what what i see as i look at this case which is now entering its seventh year is the the appellant's theory has sort of boiled down to this one theory which is you did all these things and then you violated your f c c reporting obligations by not disclosing my claims specifically in your ten k and i know from the court's questions you're already attuned to the argument there dollars so this claim that she made the o c c p was nowhere close to material on its face at the time it was made and as the court also noted the final outcome of that was the proverbial slap on the wrist even the ofc c p is in the record without dispute the us c c p said these were technical violations improve the process by which you review job descriptions and do a better job posting  job openings so that individuals with disabilities can can apply but finally i submit that this argument that micro semi somehow violated its reporting obligation it collapses of its own weight because of the tiny so plaintiff or appellant complained in january and february of two thousand and ten but the ten k for that year was not due until the end of the fiscal year in november of two thousand and eleven so it would be in effect impossible for somebody to say you violated your reporting obligation at their early time nine months earlier if the court has no further questions i will ergonomic chair is i think correct is partially incorrect or are because it it's a red herring designed to throw the court off of what the actual issues are in this case that was a complaint that she made regarding her particular work area the the cases on the sarbanes oxley act number one the employer does not have to be correct even about the whether it was illegal they have to have an objective lee reasonably misrata has twenty over twenty years and human resources experience let's just say hypothetically that your client doesn't really know much about law and doesn't know much about what one objective lee constitute a violation of law if she believed that black was white and white was green  but really believed it would she have stumbled on the objective part because the if you will the powers would be would say no that's not right that's a different color when that undercut her argument that would go to her subjectively for your honor but with respect to her objective believe the best evidence we have in this case is that the o c p did find microfilm i was violating the regulations that it was supposed to comply with in order to keep its contract to the united states government there is not in the case that we cited particularly in that astro and sylvester the plaintiff was permitted to proceed to a jury based on far less than a federal agency finding that there was indeed a violation of law in this case the senior vice president of human resources john holt trust testified in his deposition which is cited in the record that the the items that ms russell complained about were quote very serious with respect to the o of c c p mr holt trust found out about these very serious issues that she complained about in a letter from the office the c p to micro some i dated and respect me received february fourth two thousand and ten which is just thirteen days less than two weeks before her actual terminations this case i think that differing parties can certainly raise questions of fact about what describe me my client testified she took that to mean change the data falsify it her how to falsify it they told her to change certain things reflecting that in effect that certain individuals were interviewed or hired or not hired me that certain individuals were interviewed the applications were made to a group of people when in fact the hiring decisions were were pre made based on it or to a group of people that were friends with the c e o i understand the business realities of the world but in this case that fact  need to be reported to the owner of c c p this was a consultant told to do that or was an employee of the company it was a consultant later confirmed by individuals in h r including mike bondi and then senior vice president john holt trust has testified it was very