Whistleblowing And The Media: Court Finds Blowing The Whistle To The Media Is Not Protected Conduct

Recently, the U.S. District Court for the Northern District of Illinois clarified that a whistleblower's disclosure of confidential corporate information to the media is not protectible reporting under federal and state law. In UL LLC v. Callington, No. 24-cv-05631, 2025 WL 2257375 (N.D. Ill. Aug. 7, 2025), Judge Andrea R. Wood considered, in the context of an anti-SLAPP¹ motion, whether the defendant whistleblower could defeat an action alleging he breached the confidentiality provisions of his employment agreements as against public policy. Acknowledging that "whistleblowers may receive some protection from liability for breaching confidentiality agreements by disclosing information to an appropriate governmental authority," Judge Wood held that the same protections do not extend to whistleblowers, such as the defendant, that disclose an employer's confidential information to the press.²

Relevant Facts in Callington

Defendant Joshua Callington (Callington) was employed as a compliance auditor by UL LLC (UL), which performs social responsibility compliance audits for customers. Callington began as an independent contractor compliance auditor in 2017 and moved into a full-time role at UL in 2019, conducting over 120 compliance audits during his tenure. For both roles, Callington entered into agreements containing confidentiality provisions under which he agreed not to disclose UL's Confidential Information without UL's prior written permission. In September 2023, without UL's knowledge, Callington contacted a journalist with The New York Times and served as a named source in a December 28, 2023 article³ regarding his employer's failure to detect the use of migrant child labor by their customers' suppliers.

In its subsequent investigation, UL learned that Callington transferred "voluminous amounts" of confidential information (more than 76,000 documents) to his personal possession and electronic storage accounts such as Dropbox. Callington then provided an unknown number of UL's confidential documents to The New York Times via Dropbox, which he later deleted from his laptop. UL terminated Callington and filed an action against him alleging federal and state misappropriation of trade secrets and breach of contract — namely, the confidentiality provisions in his two agreements, breach of fiduciary duty, and conversion.

Callington filed a motion to strike UL's complaint, arguing that UL was wrongfully attempting to prevent him from speaking to the media in violation of his home state of Oregon's anti-SLAPP law. Callington claimed that his statements to The New York Times were protectible as a matter of "public interest," and he was protected from liability as a whistleblower. Though agreeing that Callington's statements were "a matter of public interest in a public forum," Judge Wood found that the whistleblower protection laws fail "to establish a public policy that protects Callington from liability for disclosing UL's confidential information to the New York Times."⁴ In so doing, Judge Wood distinguished Callington's disclosure of confidential information to the media from established statutory protection for "disclosures made to government authorities or disclosures made in connection with judicial or other official proceedings."⁵ Judge Wood similarly highlighted that "courts decline to read statutes protecting whistleblowers' disclosures to government or law enforcement agencies as establishing a public policy against enforcing confidentiality agreements in cases where a whistleblower discloses their employer's confidential information to the press."⁶

Key Takeaways

The Callington ruling suggests the following key takeaways:

• Review Confidentiality Agreements for Adequacy of Company Protection: Companies should consider reviewing their existing confidentiality provisions to ensure the provisions are broad enough to: (1) require that employees maintain confidential information in strict confidence; (2) limit employees' use of confidential information solely for the performance of employment duties; and (3) prohibit disclosure of confidential information without the company's prior written consent, except for reporting a possible violation of the law to a government agency (as further explained in the next bullet). Importantly, the confidentiality provisions additionally should include a survival clause that extends the employee's obligations to retain the company's confidentiality after termination.
• Review of Confidentiality Agreements for Sufficiency of Carve-Outs: Of equal importance, companies should review their existing confidentiality provisions to ensure carve-outs for protectible whistleblower reporting are sufficient so as not to impede whistleblowing to government authorities. More specifically, confidentiality provisions should explicitly state that employees are not prohibited from reporting to government agencies or participating in judicial or other official proceedings. The U.S. Securities and Exchange Commission (SEC) has brought 34 enforcement actions against public and private companies for overly restrictive confidentiality and other provisions that did not explicitly allow the individual to report information regarding a possible violation of law to the SEC. Both the U.S. Department of Justice and Commodity Futures Trading Commission have similar provisions in their whistleblower programs.
• Thoroughly Investigate Whistleblower Activity: Before proceeding with employment disciplinary or termination actions relating to whistleblower activity, consider seeking advice of outside counsel. Retaliation cases can be costly and time-consuming for a company. Early advice from outside counsel will help ensure the company is protected and taking the appropriate steps to reduce risk.

As the former Chief of the Office of the Whistleblower at the SEC and Senior Officer in the Division of Enforcement, Ms. Norberg has deep insights into whistleblower issues and best practices for companies dealing with both internal whistleblowers and those that have reported to the government. She is a partner in Arnold & Porter's Securities Enforcement & Litigation group. Ms. Corradini is an experienced litigation senior associate in Arnold & Porter's Complex Litigation group.

Footnotes

1. SLAPP stands for Strategic Lawsuit Against Public Participation.

2. Id., at *9 (emphasis added).

3. "They're Paid Billions to Root Out Child Labor in the U.S. Why Do They Fail?"

4. Id.

5. Id. (emphasis added).

6 .Id

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