Labor & Employment Law Daily Wrap Up, PROCEDURE—N.D. Cal.: Former Super Micro Computer employee can move forward with SOX claim, (Jun 23, 2025)

By Todd Harrison, J.D.

The date of the fax transmittal of the SOX administrative complaint to OSHA was considered to be the date of filing, not its receipt.

Denying an employer’s motion to dismiss a former employee’s claim alleging whistleblower retaliation under the Sarbanes-Oxley Act of 2002, a federal district court in California determined that the claim was timely filed, rejecting the employer’s argument that the employee had failed to exhaust his administrative remedies. According to the regulation, “the date of the facsimile transmittal will be considered the date of filing.” Thus, the court was not persuaded by the employer’s argument that because OSHA never received the employee’s SOX complaint after it was faxed, it was foreclosed from acting on it (Luong v. Super Micro Computer, Inc., No. 24-cv-02440-NW (N.D. Cal. Jun. 17, 2025)).

Complaint. On April 12, 2023, the employee’s counsel faxed a SOX whistleblower retaliation complaint to OSHA’s Fremont/San Jose State Plan Office. The complaint requested that OSHA investigate his claim of “unlawful whistleblower retaliation.” According to the complaint, the employer and its CEO “have a well-documented history of prematurely recognizing revenue and understating expenses in violation of Generally Accepted Accounting Principles (‘GAAP’) and certain antifraud, books and records, and internal accounting controls provisions of the federal securities laws.”

Further, the complaint asserted that the employee resisted and, in some cases, refused to go along with such alleged schemes, ultimately resulting in his termination.

Fax transmittal. Soon after faxing the complaint, the employee’s counsel received an email confirmation from myfax stating, “Your fax was successfully sent to 15107943889 by MyFax” and listed the date, number of pages, length of transmission, and the ID number of the receiving fax machine. When more than 180 days had passed without any action being taken by OSHA, the employee filed this lawsuit. The parties disputed whether the fax was received by OSHA and, if not, what consequences should result.

Filing date. Under SOX, an administrative whistleblower complaint must be filed within 180 days after an alleged violation has occurred or after the date on which the employee became aware of the alleged violation. In addition, the Act states that, “The date of the postmark, facsimile transmittal, electronic communication transmittal, telephone call, hand-delivery, delivery to a third-party commercial carrier, or in-person filing at an OSHA office will be considered the date of filing.”

Exhaustion. According to the employer, OSHA never received the SOX complaint after it was faxed. Thus, OSHA was foreclosed from acting on the complaint and the employee had failed to exhaust his administrative requirements. The employee contended, and the court agreed, that because the regulation states that, “the date of the facsimile transmittal will be considered the date of filing,” his claim was timely filed.

Jurisdictional requirement? It was disputed whether the purported timeliness issue was a jurisdictional requirement or a claim processing issue. Neither party cited to binding legal authority that directly addressed the issue.

In arguing that SOX’s administrative complaint filing requirements were jurisdictional, the employer only pointed to non-binding authority or cases that restated the law’s requirement, observed the court. The employee cited to Jaludi v. Citigroup & Co., 57 F.4th 148 (3d Cir. 2023), wherein the appellate court found that SOX’s time limit and exhaustion requirements were non-jurisdictional.

The court here found the Third Circuit’s reasoning to be sensible, but nonetheless determined that the result would be the same under either posture, explaining that if the employee’s administrative complaint filing requirements were jurisdictional, then the court had jurisdiction because the employee met those requirements. If the filing requirements are a non-jurisdictional claim-processing rule, then the employer’s motion to dismiss for failing to state a claim should be denied.

Timely filed. Turning to the employer’s argument that the complaint was not timely filed because it was not received by OSHA, the court again noted that the Act refers to the date of the fax transmission, and the employee waited more than 180 days after transmitting the fax before pursuing this action in federal court. As such, the employer’s motion to dismiss was denied.

Claim against CEO. Finally, the court considered the CEO’s argument that he should be dismissed from the case because the employee failed to identify the CEO or any retaliatory action taken by him in his administrative SOX complaint. In response, the employee asserted that his current claim was reasonably related to the allegations made in the administrative complaint such that it should survive a motion to dismiss.

Looking to the whole of the SOX complaint, the court determined that it gave fair notice to the CEO of potential claims against him. Accordingly, the motion to dismiss the claim against the CEO was also denied.

The case is No. 24-cv-02440-NW.

Judge: Wise, N.

Attorneys: Michael Thomas Brooks (Gomerman, Bourn & Associates) for Bob K. Luong. Heather Nicole Herd (Rutan & Tucker) for Super Micro Computer, Inc.

Companies: Super Micro Computer, Inc.

Cases: Procedure Discharge Retaliation Whistleblowers CaliforniaNews