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The Separation Agreement Audit: Whistleblower Carve-Outs After the Foot Locker Order

A single clause barring whistleblower awards can now draw an SEC penalty. Learn why the Foot Locker savings clause failed, audit existing and future separation agreements for Dodd-Frank exposure, and negotiate carve-outs that work for employers and departing executives alike.

2026-11-11 12:00:00

Program Details

2026-11-11 12:00:00

2026-11-11 12:00:00

1h CLE Credits

2026-11-11 12:00:00

Program Details

2026-11-11 12:00:00

Program Details

2026-11-11 12:00:00

Over 1,000+ webinars

2026-11-11 12:00:00

Course Overview

The Carve-Out Held. The Award Waiver Didn’t

2026-11-11 12:00:00

Provisions barring departed employees from receiving money in government proceedings are now common in separation agreements. In May 2026, the SEC issued a settled cease-and-desist order against Foot Locker, Inc. The agency took the position that a prohibition on whistleblower recoveries in SEC proceedings is an improper impediment under the Dodd-Frank Act. A reporting carve-out alone no longer protects the agreement.

Pair a carve-out with an award waiver, and Rule 21F-17(a) applies. Rely on a savings clause, and Foot Locker shows it can fail. Remediate before enforcement, and the historical period may still count. The order carried a $148,000 civil penalty covering 148 affected employees. It extends an enforcement line from KBR (2015) through the 2024 seven-company sweep. Other federal agencies may take similar positions.

This panel turns the SEC position into practical work product. You will leave with a framework for auditing existing and future separation agreements. You will gain negotiating positions for counsel on both the employer and executive side. You will also have a plan for outstanding agreements that appear to offend the program. That is judgment a template cannot supply.

Format

CLE Credit

1h CLE Credits

Level

Intermediate

Length

1

Key topics that will be covered

01
The Foot Locker Order
How the SEC’s settled order against Foot Locker, Inc. treats a bar on whistleblower recoveries as an improper impediment, backed by a $148,000 penalty covering 148 affected employees.
02
Why Savings Clauses Fail
How a government-reporting carve-out paired with an award-waiver provision still falls short under Rule 21F-17(a), and what that means for the language you draft.
03
Enforcement Doctrine and Precedent
How the financial-incentive doctrine and the line from KBR (2015) through the 2024 seven-company sweep shape the SEC’s strict-liability-like reading of contract language.
04
Outstanding Agreement Exposure
How to evaluate outstanding separation agreements that appear to offend the program, including whether pre-enforcement remediation reaches the historical period.
05
Negotiating Both Sides
How counsel for employers and executive employees should negotiate separation agreements in view of the SEC position.
06
Beyond the SEC
How the possibility that other federal agencies take similar positions should shape future separation agreements.

Program schedule

clock 12:00 pm - 1:00 pm EST

The Separation Agreement Audit: Whistleblower Carve-Outs After the Foot Locker Order

Provisions prohibiting departed employees from receiving money compensation in connection with post-termination government proceedings are now common in separation agreements. But in a settled case cease-and-desist order issued in May against Foot Locker, Inc., the SEC took the position that a prohibition on recoveries by whistleblowers in SEC proceedings is an improper impediment to the whistleblower program under the Dodd-Frank Act. This panel will discuss the SEC position and its impact on existing as well as future separation agreements. Might other federal agencies take similar positions? How should counsel for employer and executive employees negotiate separation agreements in view of the SEC position? What is the effect on outstanding separation agreements that appear to offend the Dodd-Frank whistleblower program as interpreted by the SEC??

Mark RiskMark Risk
Jonathan Ben-AsherJonathan Ben-Asher
Mark Risk

Mark Risk

P.C.

Jonathan Ben-Asher

Jonathan Ben-Asher

Ritz Clark & Ben-Asher LLP

Mark Risk

Mark Risk

P.C.

Mark Risk practices employment law and litigation in New York through Mark Risk, P.C. His practice includes negotiating severance and departure agreements, employment agreements and offer letters, and restrictions on competitive activity. He also litigates discrimination, retaliation, contract, wage and hour, and unfair competition matters in federal and state courts, in arbitration, and before the U.S. Equal Employment Opportunity Commission.

Education & Credentials

He earned his J.D. from New York University School of Law in 1984, where he was a Hays Civil Liberties Fellow. He also holds an M.A. in Political Science from the University of Chicago (1981) and a B.A. from Swarthmore College (1978). He is admitted in New York, the Southern and Eastern Districts of New York, and the U.S. Courts of Appeals for the Second, Third, and Fourth Circuits.

Recognition & Leadership

He has been a Fellow of the College of Labor and Employment Lawyers since 2008 and is a Fellow of the American Bar Foundation. He holds an AV Rating through Martindale Hubbell Peer Review Ratings and has been listed in Best Lawyers (New York) since 2011 and New York Super Lawyers since 2007.

Professional Involvement

He serves on the Advisory Board of the NYU Law Center for Labor and Employment Law and has been a faculty member of the National Institute for Trial Advocacy since 1996. Within the ABA Labor and Employment Section, he co-edited the Labor and Employment Law Newsletter (2002–2014), co-chaired the Technology Subcommittee (2008–2014), and served as Co-Chair/Vice Chair of the Section’s Annual Conferences (2016–2018). He has also chaired the CLE Conference Committee of the National Employment Lawyers Association/New York.

Experience

His transactional work includes employment contract and severance negotiations, departure agreements, and restrictions on competitive activity. He pairs that work with litigation of discrimination, restrictive covenant, wage and hour, and contract and benefits disputes.
Jonathan Ben-Asher

Jonathan Ben-Asher

Ritz Clark & Ben-Asher LLP

Jonathan Ben-Asher represents executives, professionals, and other employees in disputes involving whistleblowing, retaliation, employment contracts, and executive compensation. His work at Ritz Clark & Ben-Asher LLP in New York includes Dodd-Frank Act matters, Sarbanes-Oxley whistleblower claims, and Qui Tam claims under the False Claims Act, together with compensation disputes in the financial services sector.

Education & Credentials

He holds a J.D. from New York University School of Law and a B.A. from Columbia University. He is admitted to practice in New York State, before the U.S. District Courts for the Southern, Eastern, and Northern Districts of New York, and before the U.S. Court of Appeals for the Second Circuit.

Recognition & Leadership

He has been a Fellow of the College of Labor and Employment Lawyers since 2006. Across 2007–2025, his recognitions include New York Super Lawyers – Metro, Best Lawyers in America, the Lawdragon 500 Leading Plaintiffs Employment and Civil Rights Lawyers, and a Martindale-Hubbell AV Rating, with Benchmark Litigation recognition in 2022–2023. He chaired the New York State Bar Association Labor and Employment Law Section in 2012–2013 and sat on the Council of the ABA Section of Labor and Employment Law from 2014 to 2022.

Professional Involvement

He speaks frequently before the ABA, state bar associations, and specialty conferences on whistleblower protections, severance negotiations, executive compensation, AI in employment, and emerging workplace issues. He has published on whistleblower law, employment discrimination, and employment arbitration. He has served on the Board of Advisors of the NYU School of Law Center for Labor and Employment Law since 2010 and was Vice President of the National Employment Lawyers Association / New York from 2005 to 2008.

Experience

His matters include whistleblower and retaliation claims under Sarbanes-Oxley and the False Claims Act, including Qui Tam litigation establishing a three-year statute of limitations in New York. He has also handled discrimination claims under the Rehabilitation Act and Title VII and matters opposing arbitration. Before joining his current firm, he was a partner at Beranbaum Menken Ben-Asher & Bierman LLP (1998–2009). Earlier, he was a Clinical Associate Professor at Benjamin N. Cardozo School of Law (1989–1996), an Assistant Attorney General in the New York Labor Bureau (1988–1989), and a Staff Attorney at the Legal Aid Society (1980–1988), where he began as a Reginald Heber Smith Community Lawyer Fellow (1980–1982).
Mark Risk

Mark Risk

P.C.

Mark Risk practices employment law and litigation in New York through Mark Risk, P.C. His practice includes negotiating severance and departure agreements, employment agreements and offer letters, and restrictions on competitive activity. He also litigates discrimination, retaliation, contract, wage and hour, and unfair competition matters in federal and state courts, in arbitration, and before the U.S. Equal Employment Opportunity Commission.

Education & Credentials

He earned his J.D. from New York University School of Law in 1984, where he was a Hays Civil Liberties Fellow. He also holds an M.A. in Political Science from the University of Chicago (1981) and a B.A. from Swarthmore College (1978). He is admitted in New York, the Southern and Eastern Districts of New York, and the U.S. Courts of Appeals for the Second, Third, and Fourth Circuits.

Recognition & Leadership

He has been a Fellow of the College of Labor and Employment Lawyers since 2008 and is a Fellow of the American Bar Foundation. He holds an AV Rating through Martindale Hubbell Peer Review Ratings and has been listed in Best Lawyers (New York) since 2011 and New York Super Lawyers since 2007.

Professional Involvement

He serves on the Advisory Board of the NYU Law Center for Labor and Employment Law and has been a faculty member of the National Institute for Trial Advocacy since 1996. Within the ABA Labor and Employment Section, he co-edited the Labor and Employment Law Newsletter (2002–2014), co-chaired the Technology Subcommittee (2008–2014), and served as Co-Chair/Vice Chair of the Section’s Annual Conferences (2016–2018). He has also chaired the CLE Conference Committee of the National Employment Lawyers Association/New York.

Experience

His transactional work includes employment contract and severance negotiations, departure agreements, and restrictions on competitive activity. He pairs that work with litigation of discrimination, restrictive covenant, wage and hour, and contract and benefits disputes.
Jonathan Ben-Asher

Jonathan Ben-Asher

Ritz Clark & Ben-Asher LLP

Jonathan Ben-Asher represents executives, professionals, and other employees in disputes involving whistleblowing, retaliation, employment contracts, and executive compensation. His work at Ritz Clark & Ben-Asher LLP in New York includes Dodd-Frank Act matters, Sarbanes-Oxley whistleblower claims, and Qui Tam claims under the False Claims Act, together with compensation disputes in the financial services sector.

Education & Credentials

He holds a J.D. from New York University School of Law and a B.A. from Columbia University. He is admitted to practice in New York State, before the U.S. District Courts for the Southern, Eastern, and Northern Districts of New York, and before the U.S. Court of Appeals for the Second Circuit.

Recognition & Leadership

He has been a Fellow of the College of Labor and Employment Lawyers since 2006. Across 2007–2025, his recognitions include New York Super Lawyers – Metro, Best Lawyers in America, the Lawdragon 500 Leading Plaintiffs Employment and Civil Rights Lawyers, and a Martindale-Hubbell AV Rating, with Benchmark Litigation recognition in 2022–2023. He chaired the New York State Bar Association Labor and Employment Law Section in 2012–2013 and sat on the Council of the ABA Section of Labor and Employment Law from 2014 to 2022.

Professional Involvement

He speaks frequently before the ABA, state bar associations, and specialty conferences on whistleblower protections, severance negotiations, executive compensation, AI in employment, and emerging workplace issues. He has published on whistleblower law, employment discrimination, and employment arbitration. He has served on the Board of Advisors of the NYU School of Law Center for Labor and Employment Law since 2010 and was Vice President of the National Employment Lawyers Association / New York from 2005 to 2008.

Experience

His matters include whistleblower and retaliation claims under Sarbanes-Oxley and the False Claims Act, including Qui Tam litigation establishing a three-year statute of limitations in New York. He has also handled discrimination claims under the Rehabilitation Act and Title VII and matters opposing arbitration. Before joining his current firm, he was a partner at Beranbaum Menken Ben-Asher & Bierman LLP (1998–2009). Earlier, he was a Clinical Associate Professor at Benjamin N. Cardozo School of Law (1989–1996), an Assistant Attorney General in the New York Labor Bureau (1988–1989), and a Staff Attorney at the Legal Aid Society (1980–1988), where he began as a Reginald Heber Smith Community Lawyer Fellow (1980–1982).

Credits by state

AK1.5
AL1.5
AR1.5
AZ1.5
CA1.5
CO1.5
CT1.5
DC1.5
DE1.5
FL2.0
GA1.5
HI1.8
IA1.5
ID1.5
IL1.5
IN1.5
KS1.5
KY1.5
LA1.5
MA1.5
MD1.5
ME1.5
MI1.5
MN1.5
MO1.8
MS1.5
MT1.5
NC1.5
ND1.5
NE1.5
NH90.0
NJ1.8
NM1.5
NV1.5
NY1.8
OH1.5
OK2.0
OR1.5
PA1.5
RI2.0
SC1.5
SD1.5
TN1.5
TX1.5
UT1.5
VT1.5
WA1.5
WI1.5
WV1.8
WY1.5

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Live stream programs

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Access to live webinars & recordings

70,000+

Trusted by Legal Professionals

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Live stream programs

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Access to live webinars & recordings

10,000+

Trusted by Legal Professionals

1000+

Live stream programs

24/7

Access to live webinars & recordings

70,000+

Trusted by Legal Professionals

MCLE Credits

Alabama
Pending
Alaska
Approved
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Approved
Arkansas
Approved
California
Approved
Colorado
Pending
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Approved
Delaware
Pending
District of Columbia
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Approved
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New Jersey
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Approved
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Approved
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Pending
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Alabama

Requirements

The Alabama State Bar MCLE Commission requires attorneys to complete 12 credits, including 1 ethics, by December 31 of each year. All credits must be reported by February 15 of the following year. A maximum of 12 credits, including 1 ethics credit, may be carried over for 1 year only.  

Formats

  • Attorneys can earn unlimited “live” credit through live seminars, live webcasts, and co-sponsored locations with MyLAWCLE-Alabama approved programs
  • Attorneys are limited to 6 credits per compliance period of “online” programs through MyLAwCLE On-Demand programs