1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 15a0102p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

M ICHAEL R HINEHIMER , Plaintiff-Appellee ,

v

.

U.S. B ANCORP I NVESTMENTS , I NC ., Defendant-Appellant

. ┐ │ │ │ │ │ │ │ ┘ No. 13-6641

Appeal from the United St ates District Court for the Eastern District of Kentucky at Covington. No. 2:11-cv-00136—William O. Bertelsman, District Judge. Argued: November 21, 2014 Decided and Filed: May 28, 2015 Before: DAUGHTREY, MOORE, and CLAY, Circuit Judges.

_________________ COUNSEL

ARGUED: Gregory Parker Rogers, TAFT, S TETTINIUS & HOLLISTER LLP, Cincinnati, Ohio, for Appellant. Lynn D. Pundza k, Cincinnati, Ohio, for Appellee. ON BRIEF: Gregory Parker Rogers, Aisha H. Monem, TAFT, STET TINIUS & HOLLISTER LLP, Cincinnati, Ohio, for Appellant. Lynn D. Pundzak, Cincinnati, Ohio, for Appellee.

_________________ OPINION

_________________ CLAY, Circuit Judge. Defendant U.S. Ba ncorp Investments, Inc. (“Defendant” or “USBII”) appeals from judgment following a jury trial on Plaintiff Michael Rhinehimer’s claim that he was disciplined and fired in retaliation for his complaint about fraud perpetrated on USBII customer Norbert Purcell, in violation of th e Sarbanes–Oxley Act, 18 U.S.C. § 1514A. 

### >No. 13-6641 Rhinehimer v. U.S. Banc orp Investments, Inc. Page 2

The only issue on appeal is whethe r Plaintiff established that he engaged in activity protected by § 1514A(a)(1). For the reas ons set forth below, we AFFIRM the judgment of the district court.

BACKGROUND
Plaintiff filed his complaint in the instant action in 2011, alleging a single count of
retaliation in violati on of the Sarbanes–Oxley Act. The case was tried to a jury over five days in 2013. At trial, Plaintiff presente d evidence that he was disciplined and fired in retaliation for an email he sent alerting one of hi s superiors to unsuitable trades made by a co-worker, Patrick Harrigan, to the detriment of Plai ntiff’s elderly client, Norbert Pu rcell. The trades, which are undisputed, occurred while Plaintiff was on disability leave. Plaint iff learned of the trades from his personal assistant shortly afte r they were made. He called hi s immediate supervisor twice to express concern about the trades, and finally wr ote an email to his supervising principal, criticizing the trades for “destroy[ ing]” Purcell’s estate plan and as serting that the trades should never have been placed or approved. Upon retu rning, Plaintiff was specifically reprimanded for his email. His superiors also threatened hi s job, placed him on an aggressive “performance improvement plan,” and fired hi m when he ultimately failed to meet the plan goals.
The jury returned a verdict for Plaintiff and awarded damages for economic loss and emotional damages. Via special verdict form, the jury specifically f ound (1) that Plaintiff “proved by a preponderance of the evidence that, at the time of the complaint, he had an objectively reasonable belief that Mr. Harrigan had committed unsuitability fraud;” (2) that Plaintiff “further proved, by a pr eponderance of the evidence, th at [Plaintiff’s] email was a contributing factor in his term ination;” and (3) that Defendant did not prove “by clear and convincing evidence that it would ha ve discharged [Plaintiff] even if he had not sent the email.” (R. 114, Special Verdict Fo rm, PGID 3850-51.)
A. Plaintiff’s Employment at U.S. Bancorp Investments and His Knowledge Regarding Norbert Purcell

Plaintiff is a certified financia l planner. He tes tified at trial that he had about twenty years of experience in financial consulting. Plaintiff testified that certification as a financial planner requires approximately th ree to five years of professiona l experience and three years of study on topics like insurance, investment, taxe s, and estate planning, followed by a rigorousNo. 13-6641 Rhinehimer v. U.S. Banc orp Investments, Inc. Page 3

exam. Following the initial cert ification, a financial planner mu st adhere to certain ethical standards and engage in continui ng education. Plainti ff was certified as a financial planner in 1999, and in 2005 he earned a charter fi nancial consultant designation.
Plaintiff worked at USBII and a predecessor bank for eleven years as a financial advisor. In that capacity, he was assigned a territory covering four offices in Kentucky. Through his work at USBII, Plaintiff became acquainted with an elderly gentleman named Norbert Purcell. Plaintiff met Purcell early in hi s time with USBII through his wo rk as a financial advisor for
Purcell’s brother. Plaintiff testified at trial that he and Purcell became frie nds over time. All of
Purcell’s assets were in a trust at the bank. Plaintiff described Purcell as a conservative investor
who favored cash-like instruments.

Plaintiff testified that Purcell discussed esta te planning with Plaintiff. The beneficiaries of Purcell’s trust included his alma mater and his pr eferred charity. Purcell told Plaintiff that he wanted to leave some money for family member s, and they discussed the need to set up an account solely in his name to fulfill those wishes. Plaintiff testified that they discussed this issue repeatedly over their ten year acquaintance. Plaintiff also testified that he observed Purcell’s
faculties decline over the decade he knew him:
He was elderly when we first met. I woul d imagine the mid 80s when I met him. And he was pretty sharp. But as time goes by, I would notice that he would ask me the same things at multiple meetings or we discussed at the last meeting. You know, you could just tell that – he was in his mid 90s by this point, and he just, you know, was not nearly as sharp or cognizant of the things as he used to be. He was deteriorating. (R. 126, Rhinehimer Tr. Test., PGID at 4050-51.)

Plaintiff testified that their discussions a bout Purcell’s desire to leave money for his family “came to a head” in 2009, as Plaintiff wa s preparing to take disability leave. ( Id. at 4051.) The two men discussed available options, and Pl aintiff opened a brokerage account in Purcell’s
name so that he would have asse ts apart from the trust. Plaintiff linked the account in Purcell’s name to the trust so that purch ases in the brokerage account woul d be paid for by the trust, and any interest or sale proceeds from the br okerage account would return to the trust.No. 13-6641 Rhinehimer v. U.S. Banc orp Investments, Inc. Page 4

Plaintiff testified that he a nd Purcell decided to remove a “r elatively small” portion of the trust assets, $465,000, and invest it through the brokerage account in Purcell’s name. ( Id. at 4052.) Plaintiff purchased a TransAmerica shor t term bond fund for Purcell. Due to the recession, the bond fund had lowered its “break point”—the point at which a buyer was not charged for purchasing shares—from one million dollars to $250,000. The shares he bought were “A shares,” which had a low operating expense at a quarter of one percent. The purchase was made on October 30, 2009.
B. Plaintiff’s Disability Leave and Communications with Patrick Harrigan
Plaintiff went on disability leave the firs t week of November 2009 and remained on leave, with the exception of a brief two week period in March, until August 2010. While he was on leave, he stayed in touch w ith his personal assi stant, his immediate supervisor and his supervising principal (Jeff Harper and Susan Gattermeyer, respectively), as well as some other colleagues.
One of the other colleagues that Plaintiff reportedly spoke with was Patrick Harrigan, another USBII financial advisor. According to Plaintiff, Harriga n contacted him to let him know that he was covering the Cold Springs branch inPlaintiff’s absence and to ask if there was anything in particular Harrigan s hould know. Plaintiff testified:
I told him that my assistant, Becky Sm ith, was handling most of the day-to-day operations, stuff like that, but I did have one particular client, Norbert Purcell, who was very elderly, diminished capacity, had a lot of money in a trust in cash that the bank was wanting to have inve sted to produce revenue. And I informed Pat that his estate plans were long a nd thought out, I’d known him for over ten years; and I asked him not to do any tran sactions with Mr. Purcell, due to his advanced age and his de clining facilities. (R. 128, Rhinehimer Tr. Test., PGID

. at 4106-07.) 1

C. Plaintiff’s Knowledge of the Trad es and Email to Susan Gattermeyer
Plaintiff’s assistant, Becky Smith, called Pl aintiff shortly after his conversation with Harrigan and informed him that there had been trades on Purcell’s account. She informed him

1 Although there is some dispute about whether the two men actually spoke, the record does not preclude a finding that this conversation in fact occurred.No. 13-6641 Rhinehimer v. U.S. Banc orp Investments, Inc. Page 5

that Harrigan purchased $250,000 wo rth of a certain LDLAX fund for Purcell. The purchase was made on May 5, 2010. Plaintiff testified that this purchase was a short term bond fund similar to the TransAmerica fund he had purchas ed for Purcell, but that the trade was more costly for a number of reasons—because it wa s in a different family, because the shares purchased were C-Shares (which had a higher operating expense), and because it had a higher “break point.” The trade was also inconsistent w ith Purcell’s estate plans, as Plaintiff understood them, because it took money out of the trust. Pl aintiff also testified that the trade placed by Harrigan resulted in significantly more compensation to the firm and to the broker than the trade he had placed for Purcell the previous year.
After learning about the May 5, 2010 purchas e from Becky Smith, Plaintiff called his direct supervisor, Jeff Harper an d “let him know that [he] felt there was a situation that had developed or was developing between Mr. Harri gan and Mr. Purcell th at [he] thought was unsuitable and could reflect poor ly on everyone involved.” ( Id. at 4111.) Jeff Harper told Plaintiff to stay out of it.
Soon after, Plaintiff agai n heard from Becky Smith about a second trade placed by Harrigan for Purcell. The trade withdrew $650,000 from the trust and invested it through the brokerage account in a TransAmerica fund that Pl aintiff described as “another leg up on the risk scale.” ( Id. at 4143.) Plaintiff explained w hy the trade caused him concern:
I did not agree with that pur chase either, for the same reasons I just recounted. You’re depriving one group of people a nd enriching another. Now you’ve went from being in a short-term conservative f und to something that has stocks in it. And this is all overlaying Mr. Purcell wi th 95 years old, and these are intricate math problems and estate problems, and I don’t think he appreciated the ramifications that was going on. ( Id .) Plaintiff immediately called Jeff Harper to e xpress concerns about this trade. He testified that Harper “reminded” him that “[he] was out on medical disability and [h e] should stay out of this matter.” ( Id. at 4144.) On May 28, 2010, Plainti ff sent the following email to Susan Gattermeyer, who was his supervising principal:
I’m sure you know how upset I am over pa t h totally disregarding our agreement to leave Norbert [Purcell] alone, not only did he not, he did it behind mine & Becky’s back....No. 13-6641 Rhinehimer v. U.S. Banc orp Investments, Inc. Page 6

in doing so he destroyed his estate plan.... Norbert now has over 1.5 million exposed to probate. the brokerage account ( which is under my rep code as are the worthless, innappropriate [sic] trades that has [sic] lost 30 or 40 k in seven days) needs to be tod [transfer on death] to trust or re-registered to trust. pat is untrained, uneducated, irre sponsiable [sic] & careless.... please keep this between us....... those tr ades should have NEVER been placed let alone approved. (R. 127 at 4161-66; PX 37; R. 46, Rhinehimer Dep. Ex. 35.)

D. Retaliation
Three days after Plaintiff returned from di sability leave in August 2010, he was given a written warning by Jeff Harper and Susan Gattermey er. Plaintiff testified that when they met with him about the warning, Harper and Gattermey er “let [him] know that they were there on a very, very serious matter, and [his] e-mail . . . had prompted a FINRA investigation . . . and anybody associated with this was re ally feeling the heat.” (R. 128, Rhinehimer Trial Test. 4182.) Defendant describes the warning as based on the unprofessional la nguage used in the email to describe Harrigan.
On October 6, 2010, Plaintiff was called out of a company meeting and into the office of his new supervisor, Sukh Sandhu, together with Di vision Manager John Eckman. Both Plaintiff
and Sandhu testified that Eckman locked the offi ce door, inquired whether Pl aintiff liked his job, and asked if he had consulted an attorney. Plai ntiff also testified that Eckman asked him about
Norbert Purcell and whether Plai ntiff was aware of the FINRA i nvestigation. After Plaintiff admitted that he had contacted an attorney, Eckman told him that his career at USBII was over,
and that if he sued the bank his ca reer in the city would be over.
Shortly afterwards, Plaintiff was placed on a performance improvement plan that required him to increase his revenue to $40,000 per month. Plaintiff did not meet that goal, and he was fired on January 11, 2011.No. 13-6641 Rhinehimer v. U.S. Banc orp Investments, Inc. Page 7

DISCUSSION
Standard of Review

We review de novo a district court’s deni al of a motion for judgme nt as a matter of law under Federal Rule of Civil Procedure 50(b)

. Barnes v. City of Cincinnati , 401 F.3d 729, 736 (6th Cir. 2005). Judgment on the motion may only be granted where, “when viewing the evidence in a light most favorable to the non-movi ng party, giving that pa rty the benefit of all reasonable inferences, there is no genuine issue of material fact for the jury, and reasonable
minds could come to but one conclusi on in favor of the moving party.” Id. “The evidence should not be weighed, and the credibility of the witnesses should not be questioned. The judgment of this court should not be s ubstituted for that of the jury.” Balsley v. FLP, Inc. , 691 F.3d 747, 757 (6th Cir. 2012) (quoting Williams v. Nashville Network , 132 F.3d 1123, 1130- 31 (6th Cir. 1997)).
Analysis
The Sarbanes–Oxley Act makes it illegal for publicly traded comp anies to retaliate against an employee who reports suspected fraud, or who assists in a fraud investigation or enforcement proceeding. 18 U.S.C. § 1514A. Prior to 2010, employees complaining of retaliation were required to submit their claims to the Secretary of Labor for administrative adjudication. 2 See § 1514A(b). The 2010 Dodd–Frank Wall Street Reform and Consumer Protection Act (“Dodd–Frank”) crea ted a private right of action allowing employees who believe they have been retaliated against for engaging in protected activity under § 1514A to file suit directly in federal court. 15 U.S. C. §§ 78u-6(h)(1)(A)(iii) and (B)(i); see also Khazin v. TD Ameritrade Holding Corp. , 773 F.3d 488, 491 (3d Cir. 2014) (discussing the Dodd–Frank and Sarbanes–Oxley causes of action).
Whistleblower claims alleging a violation of § 1514A are subject to a burden-shifting
framework. Feldman v. Law Enforcement Associates Corp. , 752 F.3d 339, 344 (4th Cir. 2014). First, the plaintiff must esta blish a prima facie case by prov ing, under a preponderance of the

2 Under the Sarbanes–Oxley scheme, an employee may bring a de novo action at law or equity in federal court if the Secretary fails to issue a final decision within a certain period—90 days, prior to 2010, and 180 under the Dodd–Frank amendments to § 1514A. See Pub. L. 111-203, Title IX § 922(c).No. 13-6641 Rhinehimer v. U.S. Banc orp Investments, Inc. Page 8

evidence standard, that (1) he engaged in protec ted activity; (2) the employer knew or suspected, either actually or constructivel y, that he engaged in the protect ed activity; (3) he suffered an unfavorable personnel or employment action; a nd (4) the protected activity was a contributing
factor in the unfavorable action. Id. ; Riddle v. First Tenn. Bank, Nat’l Assoc. , 497 F. App’x 588, 594 (6th Cir. 2012). The employer may then avoid liability if it proves “ by clear and convincing evidence that the employer would have taken th e same personnel action in the absence of the protected activity.” Feldman , 752 F.3d at 345

. (quoting Welch v. Chao , 536 F.3d 269, 275 (4th Cir. 2014)).
The sole issue on appeal is whether the jury could find that Plainti ff engaged in protected activity under § 1514A. Resolving th is issue requires us to first determine the appropriate legal standard in this evolving area of law.
I. Legal Standard for Protected Activity
In the language of the statute, protected activity under § 1514A includes “any lawful act done by the employee” to provide information to a supervisor (as relevant here) regarding
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) (emphasis added). The partie s agree that most aspects of this definition of protected activity were satisfie d by the evidence at trial. “U nsuitability fraud,” the accusation Plaintiff levels against USBII in connection with the May 2010 trades for Norbert Purcell, “is a type of section 10(b) fraud claim.” Robert N. Clemens Trust v. Morgan Stanley DW, Inc. , 485 F.3d 840, 848 (6th Cir. 2007) (refe rring to Section 10(b) of the Securities and Exchange Act, 15 U.S.C. § 78j(b), and the accompanying re gulation promulgated by the Securities and Exchange Commission, 17 C.F.R. § 240.10b-5). Provi ding information to a supervisor regarding suspected unsuitability fraud thus qualifies as pr otected activity under the statute so long as the reasonable belief requirement is met. See § 1514A(a)(1).
Defendant contends on appeal that the eviden ce did not support a fi nding that Plaintiff could have had an objectively r easonable belief that Harrigan’s conduct constituted unsuitabilityNo. 13-6641 Rhinehimer v. U.S. Banc orp Investments, Inc. Page 9

fraud. Defendant argues that to satisfy the reas onable belief standard, Pl aintiff was required to establish facts from which a reasonable pers on could infer each of the elements of an unsuitability fraud claim, includi ng the misrepresentation or omissi on of material facts, and that
the broker acted with intent or reck less disregard for the client’s needs. 3 Def.’s Br. at 22-25. This argument is based on this Circuit’s unpublished decision in Riddle v. First Tennessee Bank,
National Association , 497 F. App’x 588 (6th Cir. 2012) adopting the standard that under § 1514A an employee’s complaint “must definitivel y and specifically relate to one of the six enumerated categories” of fraud by “approximat[ing] the basic el ements” of the fraud claim. 497 F. App’x at 595 (citations omitted).
The district court accepted Defendant’s statemen t of the legal standard and instructed the jury that Plaintiff must show that he had “an objectively reasonable belief” that each of the elements of unsuitability fraud “existed in conn ection with the sale by Mr. Harrigan to Mr. Purcell.” (R. 114, Jury Instruc tions, PGID 3844-45.) Plaintiff uns uccessfully argued for a lower standard, citing jurisprudential developments that we will shortly discuss in depth. On appeal, Defendant argues that Plaintiff cannot show he had adequate information to form a reasonable belief that USBII intentionally or with reckless disregard misrepresented or omitted material
facts in its communications w ith Purcell about the trades.
For the reasons discussed below, we rejectthe “definitively and specifically” standard
recited in Riddle as inconsistent with § 1514A and th e statutory scheme, and we adopt the emerging rule that the employ ee’s reasonable belief is a simp le factual question requiring no subset of findings that the employee had a justif iable belief as to each of the legally-defined elements of the suspected fraud. See Nielsen v. AECOM Tech. Corp. , 762 F.3d 214, 220-21 (2d Cir. 2014); Weist v. Lynch , 710 F.3d 121, 131 (3rd Cir. 2013). Although Plaintiff does not renew his challenge to the “definitivel y and specifically” standard on appeal, because we must identify and apply the correct legal standard, we nonetheless address it. Courts “are not bound to

3 In essence, unsuitability fraud occurs where a broker kn ows or reasonably believes certain securities to be unsuitable to a client’s needs, but recommends them anyway. Robert N. Clemens Trust v. Morgan Stanley DW, Inc. , 485 F.3d 840, 849 (6th Cir. 2007). Unsuitability is judged with regard to the client’s investment objectives; “a mechanical comparison of costs” is not dispositive. Id. To be actionable, the broker must have either made material misrepresentations about the transaction, or, owing a duty, failed to disclose material information. Banca Cremi, S.A. v. Alex. Brown & Sons, Inc. , 132 F.3d 1017, 1032 (4th Cir. 1997). Robert N. Clemens Trust , 485 F.3d at 849

. Reckless disregard of the investor’s intere sts satisfies the scienter requirement. Id.No. 13-6641 Rhinehimer v. U.S. Banc orp Investments, Inc. Page 10

accept[,] as controlling, stipulations as to questions of law,” and we decline to rely on the parties’ stipulation to a standard that has else where been called into significant doubt. Neuens v. City of
Columbus , 303 F.3d 667, 670 (6th Cir. 2002) (citation omitted); see also Young v. United States , 315 U.S. 257, 259 (1942) (“[O]ur judgments are preced ents, and the proper administration of the criminal law cannot be left merely to the stipulation of parties.”).
A. The Rise and Fall of the “Definitively and Specifically” Standard
The “definitively and specifically” standard was introduced into the adjudication of Sarbanes-Oxley whistleblower claims by the Administrative Review Board of the U.S. Department of Labor (“ARB”) in a case named Platone v. FLYi, Inc. , ARB Case No. 04-154, 2006 WL 3246910 (ARB Sept. 29, 2006), aff’d sub nom. Platone v. U.S. Dep’t of Labor , 548 F.3d 322 (4th Cir. 2008). In Platone , the ARB held that “the employee’s communications must ‘definitively and specifically’ relate to any of the listed categories of fraud or securities violations under 18 U.S.C.A. § 1514A(a)(1).” Platone , 2006 WL 3246910 at *8. The ARB
concluded that Platone did not m eet this standard because her “r evelations” to her supervisors “[did] not even approximate any of the basic elements of a claim of securities fraud – a material misrepresentation (or omission), sc ienter, a connection with the purchase, or sale of a security, reliance, economic loss, and loss causation.” Id. at *11. For example, the ARB noted that the employee only testified to losses of less than $1,500, and found it “unlikel y that a reasonable
shareholder would find a loss of less than $1,500.00 material.” Id. Accordingly, Platone stands for two propositions: first, that a whistleblower’s complaint must “definitively and specifically” relate to an enumerated legal violation to qualify for protection; and second, that the complaint must “approximate . . . the basic elements” of the kind of fraud or violation alleged. See id. at *8, *11.

The Platone standard was soon after adopt ed by a number of circuits. Van Asdale v. Int’l
Game Tech. , 577 F.3d 989, 996-97 (9th Cir. 2009); Welch , 536 F.3d at 276-77, 279 (4th Cir.);
Allen v. Admin. Rev. Bd. , F.3d 468, 477 (5th Cir. 2008)); see also Vodopia v. Koninklijke Philips Elecs., N.V. , 398 F. App’x 659, 662-63 (2nd Cir. 2010). So me of these courts explicitly based their decision to adopt the sta ndard on deference to the ARB. See , e.g. , Welch , 536 F.3d at 276,No. 13-6641 Rhinehimer v. U.S. Banc orp Investments, Inc. Page 11

n.2 (granting Chevron deference to the ARB’s interpretation of § 1514A); Van Asdale , 577 F.3d at 997 (“[W]e similarly defer to the ARB’s reas onable interpretation of the statute.”).
Although Platone addressed what communications were sufficient to qualify as protected activity, circuit courts following Platone extended the ARB’s reasoni ng to inform the standard for establishing the objective reasonableness of an employee’s belief. The First Circuit borrowed
Platone ’s language when it announced in Day v. Staples, Inc. , 555 F.3d 42, 55 (1st Cir. 2009) that “[t]o have an objectively r easonable belief there has been shareholder fraud, the complaining employee's theory of such fraud must at least approximate the basic elements of a claim of
securities fraud.” See also Allen , 514 F.3d at 480 n.9 (“the objective reasonableness of the employee’s belief is evaluated in part through reference to the elements of a 10b-5 claim”);
Welch , 536 F.3d at 279 (affirming the dismissal of a whistleblower claim due to the plaintiff’s failure to justify the reasonableness of his be lief that the company’s conduct was fraudulent under the then-existing legal standa rds governing securities fraud). Riddle , following Day , stated that to establish reasonable belief the plaintiff’s “theory of [] fraud must at least approximate the basic elements” of the applicable type of fraud. 497 F. App’x at 594-96 ( quoting Day , 555 F.3d at 55).
The ARB reversed course in 2011 and abrogated Platone in Sylvester v. Parexel Int’l
LLC , ARB Case No. 07-123, 2011 WL 2165854, at *12 (ARB May 25, 2011) ( en banc ). Observing that the requirement that a complaint “definitively and specifically” relate to an enumerated legal violation was drawn from cases arising under the Energy Reorganization Act, 42 U.S.C.A. § 5851, the ARB concluded that such a requirement was “inapposite” in the Sarbanes–Oxley context, and that it also presente d “a potential conflict w ith the express statutory authority of § 1514A, which prohib its a publicly traded company from discharging or in any other manner discriminating against an employ ee for providing inform ation regarding conduct that the employee “reasonably believes” c onstitutes a [Sarbanes–Oxley] violation.” Id. at *14.

The ARB in Sylvester also specifically re jected the requirement that a complainant’s theory of impropriety must closely imitate th e elements of the pertinent fraud. Such a requirement “merged the elements required to pr ove a violation of the fraud statute, e.g. materiality and scienter, with the requirements th at a whistleblower must allege or prove toNo. 13-6641 Rhinehimer v. U.S. Banc orp Investments, Inc. Page 12

engage in protected activity.” Id. at *18. The ARB held that such a requirement conflicted with the protections of the statute, which did not require a complainan t “to prove a violation of the substantive laws,” but merely to have “a reasona ble belief of a violation of the enumerated
statutes.” Id

. Sylvester also emphasized the purpose of § 1514A “to protect and encourage greater disclosure” by exposing existing fraud as well as pot entially fraudulent behavior, expressing a concern that “the purposes of the whistleblowe r protection provi sion will be thwarted if a complainant must, to engage in protected activity, allege, prove, or approximate” the substantive elements of a given category of fraud. Id.
Sylvester directed instead that the Sarbanes–Oxl ey Act’s “plain language provides the proper standard for establis hing protected activity,” i.e. , whether the employee “‘reasonably believes’ that the conduct complained of constitutes a violation of the laws listed at Section 1514[A(a)(1)].” Id. at *11. Sylvester relied on the established understanding that “reasonable belief” requires a complainant “to have a s ubjective belief that the complained-of conduct
constitutes a violation of relevant law, and also that the belief is objective ly reasonable” in light of the factual circumstances, incl uding the “training and experienc e” of the aggrie ved employee.
Id.
Federal courts have recognized that Sylvester casts substantial doubt on the continuing validity of the “defin itively and specifically” sta ndard. The Second Circuit in Nielsen held the
ARB’s decision in Sylvester was entitled to at least Skidmore deference and rejected an earlier unpublished Second Circuit case setting out the “definitively and specifically” standard. Nielsen , 762 F.3d at 219 (abrogating Vodopia , 398 F. App’x 659, 662-63 (2nd Cir. 2010)); see also Feldman v. Law Enforcement Ass. Corp. , 752 F.3d 339, 344 n.5 (4th Cir. 2014) (noting Sylvester but not deciding the validity of the “definit ively and specifically” standard adopted in Welch because it was unnecessary to th e disposition of the case); Lockheed Martin Corp. v. Admin.
Review Bd. , 717 F.3d 1121, 1132 n.7 (10th Cir. 2013) (noting Sylvester but declining to pass on the appropriate standard for prot ected activity because plaintiff met the higher “definitively and specifically” standard); Stewart v. Doral Fin. Corp. , 997 F. Supp. 2d 129, 135-36 (D.P.R. 2014) (determining that Day was no longer good law in light of th e ARB’s reversal of its position and adopting the Sylvester standard). The Third Circuit granted Chevron deference to the ARB’sNo. 13-6641 Rhinehimer v. U.S. Banc orp Investments, Inc. Page 13

interpretation of § 1514A in Sylvester and rejected the “definitively and specifically” standard. Weist v. Lynch , 710 F.3d 121, 131 (3rd Cir. 2013).
Indeed, we have not found a decision by a fe deral court of appeals that considers and rejects the reasoning in Sylvester . Defendant emphasizes that the Sixth Circuit decided Riddle
after Sylvester

. 4 Def.’s Br. at 20-21. Riddle , however, did not discuss Sylvester , much less consider and reject its reas oning or analyze whether the A RB’s decisions are entitled to
deference. See 497 F. App’x at 594-96. And, of course , because it is unpublished, it is not precedential. Crump v. Lafler , 657 F.3d 393, 405 (6th Cir. 2011).
B. Deference Due to the ARB’s Interpretation of § 1514A

The Sixth Circuit has not decided whethe r the ARB’s reasonable interpretations of § 1514A are entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837 (1984). Under Chevron , courts defer to an agency’s permissible interpretation of the law if Congress has not spok en to the precise issue by statute. 467 U.S. at
842-43. Chevron deference should be ap plied “when it appears th at Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulga ted in the exercise of such authority.” United States v. Mead Corp , 533 U.S. 218, 226-27 (2001). Agency in terpretations no t entitled to
Chevron deference may nonetheless “merit some deferenc e” in light of agen cy expertise and the value of uniformity in interpreting of the law. Mead , 533 U.S. at 234. The deference due in such cases is governed by Skidmore v. Swift & Co. , 323 U.S. 134 (1944). Mead , 533 U.S. at 238-39 (remanding with instructions for the Federal Circuit to determine whether the customs ruling
letters at issue were entitled to deference under Skidmore ).
Circuits holding that the ARB’s decisi ons interpreting § 1514A are entitled to Chevron deference note that the statute expressly provide s for adjudication of whistleblower complaints by the Secretary of Labor, who in turn “delegated the authority to review appeals under Section 806 and issue final agency decisions to the ARB.” Weist v. Lynch , 710 F.3d at 131 (citing

4 Defendant also cites Ind. Mich. Power Co. v. U.S. Dep’t of Labor , 278 F. App’x 597 (6th Cir. 2008) and Am. Nuclear Res. v. U.S. Dep’t of Labor , 134 F.3d 1292 (6th Cir. 1998) as embracing the “definitively and specifically” standard—both cases, however, arise under the Energy Reorganization Act. See Def.’s Br. at 20-21.No. 13-6641 Rhinehimer v. U.S. Banc orp Investments, Inc. Page 14

Delegation of Authority and Assignment of Respons ibility to the Administrative Review Board, 75 Fed. Reg. 3924, 3924-25 (Jan. 25, 2010)); Welch , 536 F.3d at 276 n.2 (same); see also
Lockheed , 717 F.3d at 1131 (granting Chevron deference to the ARB’ s “interpretation of [§ 1514A] as expressed in formal ad judications”). In a r ecent case construing a different aspect of § 1514A, the Supreme Court dec lined to decide whether the ARB’s interpretations of the
statute were entitled Chevron deference. Lawson v. FMR LLC , 134 S. Ct. 1158, 1165 n.6 (2014). In her dissent, Justice Sotomayor argued that Congress granted the SEC, rather than the Secretary of Labor, interpreti ve authority over § 1514A. Id. at 1186-87 (Sotomayor, J., dissenting) (arguing that the A RB has not been granted interpre tive authority over § 1514A).

The Second Circuit decided Nielsen shortly after Lawson came down. See Nielsen , 762 F.3d at 220 (discussing Lawson and lower court decisions granting Chevron deference to the ARB). The Second Circuit concluded that Sylvester ’s rejection of the “definitively and specifically” standard “is persuasive even under lesser Skidmore deference” and declined to reach whether the ARB’s interpretations of § 1514A were entitled to Chevron deference. Id. We do the same.

Skidmore deference is grounded in the recognition that “the rulings, interpretations, and opinions” of the agency that administers an ac t “constitute a body of e xperience and informed judgment to which courts and litigants may properl y resort for guidance.” 323 U.S. at 140. “The weight of such a judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its co nsistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” Id. In determining whether an agency’s interpretation is persuasive under Skidmore , “we look to the statute’s text and design, including whether th e [interpretation] is consistent with the congressional purpose.” S. Rehab. Grp., PLLC v. Sec’y of Health & Human Servs. , 732 F.3d 670, 685 (6th Cir. 2013) (citations omitted).
The text and design of § 1514A does not s uggest any heightened showing of a factual basis for the suspected fraud. The statute prohib its retaliation for “any lawful act done by the employee . . . to provide information, cause informa tion to be provided, or ot herwise assist in an investigation regarding any conduct which the employee reasonably believes constitutes aNo. 13-6641 Rhinehimer v. U.S. Banc orp Investments, Inc. Page 15

violation” of the enumerated provisions. § 1514A (a)(1). Indeed, at every juncture, the statute sweeps broadly, encompassing a wide swath of act s, limited only by their legality, to provide
information or assistance to an investigation “regarding any conduct” reasonably believed by the employee to constitute a viol ation of relevant law. See id.
The well-established intent of Congress s upports a broad reading of the statute’s protections. The Sarbanes–Oxley Act was enacted in 2002, in the wake of the Enron scandal, to “prevent and punish corporate an d criminal fraud, protect the vi ctims of such fraud, preserve evidence of such fraud, and hold wrongdoers account able for their actions.” S. Rep. No. 107- 146, 2002 WL 863249, at *2 (2002), quoted in Lawson , 134 S.Ct. at 1162. In particular, Congress sought to counteract the “corporate code of silence” resulting from practices that discouraged employees from reporting fraud “not only to the proper authorities . . . but even internally,” finding that such practices had a llowed Enron’s fraudulent accounting practices to flourish in a climate of impunity. Id. The whistleblower provisions of the Act address this concern, and were drafted br oadly for that purpose. Lawson , 134 S.Ct. at 1163. “The legislative history of Sarbanes–Oxley makes clear that its [whistleblower] protecti ons were ‘intended to include all good faith and reasonable reporting of fraud, and [that] there should be no presumption that reporting is otherwise, absent specific evidence.’” Van Asdale v. Int'l Game
Tech ., 577 F.3d 989, 1002 (9th Cir. 2009) (quoting 148 Cong. Rec. S7418–01, S7420 (daily ed. July 26, 2002) (statement of Sen. Leahy) (second edit in original)).
We agree with the ARB that an interpre tation demanding a rigidly segmented factual showing justifying the employee’ s suspicion undermines this purpose and conflicts with the statutory design, which turns on employees’ reas onable belief rather th an requiring them to ultimately substantiate their allegations. Sylvester , 2011 WL 2165854, at *18; see also id. at *17 (“[T]he critical focus [of § 1514A] is on whether the employee reported conduct that he or she reasonably believes constituted a violation of fede ral law.”). As the Second Circuit cogently reasoned,
[R]elief pursuant to § 1514A turns on the reasonableness of the employee's belief that the conduct violated one of the enum erated provisions—which is contrary to the “definitively and specifically” sta ndard. The objective prong of the reasonable belief test focuses on the basis of knowle dge available to a reasonable person in the circumstances with the employee's training and experience. Many employeesNo. 13-6641 Rhinehimer v. U.S. Banc orp Investments, Inc. Page 16

are unlikely to be trained to rec ognize legally actionable conduct by their employers. Accordingly, the centrality of th e belief of the whistleblower that her employer has engaged in wrongdoing leads us to conclude, in accord with the ARB's interpretation in Sylvester , that the “definitively and specifically” requirement is not in keeping w ith the language of the statute.

Nielsen , 762 F.3d at 221 (citation and quotation marks omitted).
We agree with this analysis. Even Platone ’s more modest requirement that an employee’s communications “definitively and speci fically” relate to a category enumerated under the statute has the strong potential to def eat claims where a lay person, not familiar with the niceties of federal securities law, reports someth ing he or she reasonably believes to be illegal but omits reference to the type of violation or fails to approxi mate each of its elements. See
Platone , 2006 WL 3246910 at *11. Th e cases that extended Platone to address the employee’s reasonable belief, including the basis for the be lief, necessarily sharpened this conflict. See Day , 555 F.3d at 55, quoted in Riddle , 497 F. App’x at 594-96. We agr ee with the Third Circuit that an employee “should not be unprotected from re prisal because she di d not have access to information sufficient to form an objectively reasona ble belief that there was an intent to defraud or [that] the information communicated to he r supervisor was material to a shareholder’s
decision.” Wiest , 710 F.3d at 132. An interpretation of § 1514A that would leave such an employee without protection is inconsistent with the statut ory design and well-established Congressional intent.
We therefore adopt as persuasi ve the reasoning of the ARB in Sylvester and reject the “definitively and specifically” standard applied in this Cour t’s previous unpublished opinion of Riddle v. First Tenn. Bank, Nat’l Ass’n , 497 F. App’x 588, 595 (6th Cir. 2012).

C. Reasonable Belief
We agree with the ARB that the statute’s “plain language provides the proper standard for establishing protected activity.” Sylvester , 2011 WL 2165854 at *11. Namely, to sustain a complaint based on protected activity under § 1514A, “the complainant need only show that he or she ‘reasonably believes’ that the conduct complained of constitutes a violation” of the
enumerated laws. Id. As the term itself indicates, reason able belief involves both a subjective component and an objective component. Nielsen , 762 F.3d at 221. The subjective component isNo. 13-6641 Rhinehimer v. U.S. Banc orp Investments, Inc. Page 17

satisfied if the employee actually believed that the conduct complain ed of constituted a violation
of relevant law. Id . “Objective reasonableness ‘is eval uated based on the knowledge available to a reasonable person in the same factual circ umstances with the same training and experience as the aggrieved employee.’” Harp v. Charter Commc'ns, Inc. , 558 F.3d 722, 723 (7th Cir. 2009) (quoting Allen , 514 F.3d at 477).
Thus, the inquiry into whether an employee had a reasonable belief is necessarily factdependent, varying with the circumstances of the case. For this reason, “[t]he issue of objective
reasonableness should be decided as a matter of law only when no reasonab le person could have believed that the facts [known to the employee] am ounted to a violation” or otherwise justified the employee’s belief that illegal conduct was occurring. Livingston v. Wyeth, Inc. , 520 F.3d 344, 361 (4th Cir. 2008) (Michael, J., dissenting) quoted in Sylvester , 2011 WL 2165854 at *12. If, on the other hand, “reasonable minds could disa gree about whether the employee's belief was objectively reasonable, the issue cannot be decided as a matter of law.” Id. In accordance with our discussion above, an employee need not establis h the reasonableness of hi s or her belief as to
each element of the violation. Instead, the reasonableness of th e employee’s belief will depend on the totality of the circumstances known (or reasonably albeit mistakenly perceived) by the employee at the time of the complaint, anal yzed in light of the employee’s training and experience. See id ; Weist , 710 F.3d at 135 (applying the Sylvester reasonable belief standard).
II. Application to Rhinehimer
Applying the proper legal standard for pr otected activity under § 1514A, we conclude
that the evidence submitted in this case was more than adequate to sustain the judgment that Plaintiff possessed an objectively reasonable belief that Harrigan’s conduct with regard to the
contested trades constituted unsui tability fraud. Consistent with the standard of review for motions for judgment as a matter of law under Ru le 50(b), we give Plai ntiff, the nonmoving party, “the benefit of all reasonable inferences.” Barnes , 401 F.3d at 736.

Plaintiff knew the structure of Purcell’s long-held estate plans, and learned of trades that a reasonable investment profe ssional (and particularly one with Plaintiff’s training and experience) would recognize as inconsistent with those plans. Indeed, as Plaintiff explained, he understood that the trades change d how the affected funds were titled and how they would beNo. 13-6641 Rhinehimer v. U.S. Banc orp Investments, Inc. Page 18

distributed upon Plaintiff’s death, including whether they would be e xposed to probate. Plaintiff
was also well aware of Purcell’s relative vulnerability as an elderly man with increasingly diminished faculties, and he was familiar with Harrigan’s incentiv es to place the trades and with USBII’s past efforts to encourage Purcell to invest the funds in his trust account so that the bank would earn more money. Viewing the evidence in th e light most favorable to Plaintiff, we must also assume that Harrigan placed the contested trades after a phone ca ll in which Plaintiff warned Harrigan of Purcell’s diminished capacity and aske d Harrigan not to make any trades for Purcell.
Based on the totality of these circumstances , the evidence was more than sufficient to sustain the jury’s finding that Plaintiff re asonably believed that the trades constituted unsuitability fraud. Although it is true that Plaintiff had no specific knowledge of whether Harrigan had omitted or misrepresented materi al information in his communications with Purcell, much less any knowledge of whether Ha rrigan did so intentionally or with reckless disregard, these gaps in Plaintiff’s knowledge are immaterial. Even if, in fact, everything about the trades were above board, courts universallyrecognize that § 1514A protects employees who reasonably but mistakenly believe that the conduc t at issue constitutes a violation of relevant
law. See, e.g. , Wiest v. Lynch , 710 F.3d 121, 132 (3d Cir. 2013) (“Congress chose statutory language which ensures that ‘an employee's reas onable but mistaken belief that an employer engaged in conduct that constitutes a violation of one of the six enumerated categories . . . is protected.” (citat ion omitted)); Van Asdale v. Int'l Game Tech ., 577 F.3d 989, 1001 (9th Cir. 2009) (same); Welch v. Chao , 536 F.3d 269, 277 (4th Cir. 2008) (same); Allen v. Admin. Review
Bd ., 514 F.3d 468, 477 (5th Cir. 2008) (same). The in formation that was available to Plaintiff was more than adequate to allow him reasonably to believe that the trades were the result of conduct constituting unsuitability fraud. When USB II retaliated against him for reporting that information, it therefore violated Sarbanes –Oxley’s whistleblower protections.

CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the district court.