Whistleblowing in Law: Case Study

This case study examines the concept of whistleblowing within the context of corporate ethics, focusing on the landmark case of United States v. Skilling. It discusses the legal arguments presented, the ethical implications of whistleblowing, and the consequences faced by the individuals involved. The paper highlights the importance of internal reporting and the ethical theories that support whistleblowing as a necessary practice for maintaining integrity within organizations.

Running Head: Law 1
Law

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Executive Summary:
whistle blowing refers to situation when member of the organization or any former member of
the organization inform some other person regarding illegal and immoral practice conducted in
organization, but such information must be given in hope that person to whom information is
given done something which changed this practice. In maximum cases, employees inform these
illegal and immoral incidents within the organization, and does not make bad publicity of their
organization and this type of whistle blowing is called internal whistleblowing. However,
peoples preferred to call this internal reporting (Dixon, 2014).
Contents

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Executive Summary:....................................................................................................................................2
Introduction:...............................................................................................................................................4
Brief history of organization:.......................................................................................................................5
Argument:...................................................................................................................................................5
Opposition argument:.................................................................................................................................6
Ethical theories:...........................................................................................................................................6
Conclusion:..................................................................................................................................................6

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Introduction:
This paper states the detailed discussion on whistleblowing and how this study is related to
corporate ethics. However, complete discussion is done on the basis of case study, United States
v. Skilling, Criminal Number H-04-025. In this case Court considers three issues:
 Whether honest services on the basis of fraud conviction can be affirmed if defendant
acted for meeting the objectives of his employer’s and not for his own personal gain.
 Whether the conclusion of Panel’s that trial court made mistake in failing to presume
prejudice among jurors in this case reversal of the convictions, and the views expressed
by jurors actually seated in the case.
 For matter of law, whether statement deemed immaterial puffery in the context of civil
fraud may nonetheless predicate for criminal fraud conviction, and whether any specific
instructions were given on the meaning of materiality under security fraud law.
This case is considered as important case in context of white-collar action case ever prosecuted,
and Mr. Skilling was the former CEO of Enron who was accused in taking part in conspiracy in
which financial health of Enron was overstated. It must be noted that Skilling was not accused
for any act which involves acts of disloyalty such as stealing of money from Enron, causing
bankruptcy to Enron, and engaging in cover-up (Austlii, 2003).

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Lastly paper is concluded with brief conclusion which includes summary of this report.
Brief history of organization:
Enron Corporation was an American company which deals with energy, commodities, and
services. This company was based on Houston, Texas. This company was found in 1985 and it
result from the merger of Houston Natural Gas and InterNorth, both the companies were small
regional companies. Before the bankruptcy of company on 2nd December 2001, almost 20000
staff was employed by Enron and it becomes one of the world's major electricity, natural gas,
communications and pulp and paper companies with claimed revenues of almost $101 billion
during the year of 2000. As per fortune, Enron was named as America’s more innovative
company for almost 6 consecutive years (Cook, 2008).
Argument:
Mr. Skilling argues that counts related to insider trading must be dismissed because these counts
alleges wrong mens rea, and because of the material they were not able to identify, and
information which was non-public and stated under each alleged insider trading.
Skilling argues related to insider trading counts bust specifically mentioned first five which
mainly targets trades held on 23rd October 2000. He further alleges wrong standard of mens rea
because of the mens rea standard possess by task force rather than using such information
intentionally for the purpose of defraud that was contrary to the intent of congress and also
eliminates the factor of scienter related to the charged offense.
By citing the case law United States v. Smith, 155 F.3d 1051, 1068 n.25 (9th Cir. 1998),
Skilling made further argument that better reasoned appellate authorities, includes the only case

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to address the use versus possession for put questioned in the context of criminal nature. Skilling
made further argument that charges which were based on the trades because of the post-date
rules which should be dismissed on the basis of the additional reason, and these additional
reasons that they should not reflect the new rules awareness standards task force of Enron
respond that when the language read practically and technically (Clearly, n.d.).
Opposition argument:
Allegation made on skilling that he sold stock of Enron while possessing the material was the
information which was non-public in nature and it constitutes a deceptive device contrivance
only if the material, nonpublic information was a factor which is related to Skilling’s decision for
making the charges related to trades because if it were not considered as factor, then there was no
breach of fiduciary duty to the shareholders of Enron would happen.
In this case, judges held that Mr. Skilling is guilty and sentenced him imprisonment from the
period of 168 months. After considering the above stated provisions this decision of the Court is
justified (Find Law, n.d.).
Ethical theories:
From ethical point of view, internal reporting is considered best for the health of the
organization. If organizations provides easy platform to their employees for the purpose of
reporting small issues then it becomes easy for organization to same themselves from big issues
at external level.

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There are some ethical theories which deal the issue of whistleblowing, and these theories are
Kantian (duty), virtue, and utilitarian. Kantian theory is the theory which instructs people to act
in harmony on the basis of rules which are universally accepted. Though Kant person does not
consider the self-sacrifice which is usually required in whistleblowing, and Kant theory wants
that an individual must stand firmly for telling the truth, without considering about personal
outcome.
On the other hand, Virtue theory requires that an individual to use his integrity and courage
(Commonwealth ombudsman, n.d.) By giving Report related to unethical activities of colleagues,
ensures obligation related to safety, or fraud ensures the integrity in professional character of
person. This can be understood through example a main aim of employee goal is to remain loyal
with the organization by providing relief to a client and any person who is suffering. After
considering the concept of blind eye that practices that go against that primary aim must be
reported to the authorities of organization, and organization must take strict actions on such
reports.
Ethical theory of consequentialism states a justification for whistleblowing which is powerful in
nature and maximizing the benefit for human by minimizing the harm. Some standards elated to
this theory are stated below which are summarized by Davis (2003, pp. 89-90).
 The organization from which such would-be whistleblower belongs must through its
products or any other services or policy, do serious and considerable harm to the public.
It is necessary that whistle blower must foresee the threat of harm, and such harm must
be reported to the supervisor.

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 It is necessary that whistle blower must check out other internal procedures stated under
the organization. This can be understood through example whistle blower must follow the
internal checks of the organization.
 Whistle blower must present admissible evidence which help the observer to take
impartial decision.
 Whistle blower must have good reason to believe if threat is revealed then it prevent
future harm (Coney, 1988).
Conclusion:
After considering above facts it is clear that whistleblowing is not only necessary for objective
point of view but it is also necessary from ethical point of view as well. Therefore, it is clear that
such information must be given in hope that person to whom information is given done
something which changed this practice. In maximum cases, employees inform these illegal and
immoral incidents within the organization, and does not make bad publicity of their organization
and this type of whistle blowing is called internal whistleblowing. However, peoples preferred to
call this internal reporting.
In case stated above, judges held that Mr. Skilling is guilty and sentenced him imprisonment
from the period of 168 months. After considering the above stated theories this decision of the
Court is justified. As stated Kantian theory is the theory which instructs people to act in harmony
on the basis of rules which are universally accepted. Though Kant person does not consider the
self-sacrifice which is usually required in whistleblowing, and Kant theory wants that an

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individual must stand firmly for telling the truth, without considering about personal outcome.
Therefore, in this case also Mr. Skilling is required to adopt the provisions of Kant theory.

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References:
Austlii. Lewis, David --- "Whistleblowing Statutes in Australia: Is It Time for a New Agenda?"
[2003] DeakinLawRw 16; (2003) 8(2) Deakin Law Review 318. Viewed at:
http://www.austlii.edu.au/au/journals/DeakinLawRw/2003/16.html#fnB23. Accessed on 6th
October 2017.
Clearly, S. Nurse Whistleblowers In Australian Hospitals: A Critical Case Study. Viewed at:
http://dro.deakin.edu.au/eserv/DU:30067381/cleary-nurse-2014A.pdf. Accessed on 6th October
2017.
Commonwealth Ombudsman. (2013). The Public Interest Disclosure Act 2013 – what’s it all
bout? Canberra ACT: Commonwealth Ombudsman Retrieved from. Viewed at:
http://www.ombudsman.gov.au/docs/fact-sheets/Ombudsman_PID_Fact_SheetA.pdf. Accessed
on 6th October 2017.
Coney, S. (1988). The Unfortunate experiment. The full story behind the Inquiry into Cervical
Cook, E. (1913).
The life of Florence Nightingale 1820-1861. London: Macmillan and Co.
Cook, K. L. B. (2008). Whistleblowing: Is it good for an organization? Antennas and
Propagation Magazine, IEEE, 50(6), 188-189.
Dixon-Woods, M, Baker, R, Charles, K, Dawson, J, Jerzembek, G, Martin, G, McCarthy, I,
McKee, L, Minion, J, & Ozieranski, P. (2014). Culture and behaviour in the English
National Health Service: Overview of lessons from a large multimethod study. BMJ
Quality & Safety, 23(2), 106-115.
Findlaw. In the united states district court for the southern district of texas houston division.
Viewed at: http://news.findlaw.com/hdocs/docs/enron/usskllng122805opn.pdf. Accessed on 6th
Octobeer 2017.
United States v. Skilling, Criminal Number H-04-025 (S.D. Tex. Oct. 23, 2006).