from the United States District Court for the District of
Colorado D.C. No. 1:11-CV-02434-WYD-MEH
Clayton E. Wire, Ogborn Mihm LLP, Denver, Colorado (James E.
Fogg, Ogborn Mihm LLP, Denver, Colorado, with him on the
briefs), for Plaintiff-Appellant.
Reeves Anderson, Arnold & Porter Kaye Scholer LLP,
Denver, Colorado (Edwin P. Aro, Holly E. Sterrett, Jenna L.
Goldstein, Jamen E. Tyler, Arnold & Porter Kaye Scholer
LLP, Denver, Colorado, on the briefs), for
Stephen M. Kohn, Kohn, Kohn & Colapinto, LLP, Washington,
D.C., for Amicus Curiae.
HARTZ, HOLMES, and BACHARACH, Circuit Judges.
BACHARACH, CIRCUIT JUDGE.
appeal grew out of the firing of Mr. Carl Genberg, an
executive for Ceragenix Corporation. Mr. Genberg allegedly
suspected misconduct by Ceragenix's Board of Directors.
When he acted on these alleged suspicions, he was fired.
Genberg then sued Ceragenix's Chief Executive Officer,
Mr. Steven Porter, for
. retaliation under the Sarbanes-Oxley Act
of 2002 and
. defamation under Nevada law.
district court granted summary judgment to Mr. Porter on both
claims. We reverse on the Sarbanes-Oxley claim and affirm on
the defamation claim.
Mr. Genberg battles the Board.
action arose from a dispute between Mr. Genberg and the
A merger results in a proxy for Ceragenix's new
2005, Mr. Porter and Mr. Genberg worked for a company that
merged into Ceragenix. This merger entitled shareholders of
the old company to shares in Ceragenix. With the merger, the
shares went into escrow and the Ceragenix Board obtained a
proxy to exercise voting rights for the escrowed shares. The
new shareholders, including Mr. Genberg, believed that the
shares would soon be distributed. But Board members continued
to use the proxy for roughly five years, reelecting
themselves and increasing their own compensation.
Mr. Genberg ghostwrites an email for a Ceragenix
to continued use of the proxy, Mr. Genberg drafted an email
under the name of one of Ceragenix's largest
shareholders. The email urged the Ceragenix Board to abandon
the proxy and allow the shareholders to exercise their own
voting rights. When Mr. Genberg drafted this email, the
shareholder was part of a group trying to take control of
Ceragenix, a move opposed by the Ceragenix Board. The
shareholder sent Mr. Genberg's email to the Ceragenix
Board on March 2, 2010.
The Board considers the email the next day.
March 3, the Board met to address the email and suspicion
about Mr. Genberg's role. At this meeting, Mr. Porter
told the Board that the email had been written by Mr. Genberg
to aid another company's attempt to buy Ceragenix. Mr.
Porter viewed Mr. Genberg as disloyal, suspecting him of
helping the group to seize control of Ceragenix. Similar
suspicions led other Board members to suggest that Mr.
Genberg be fired. But Mr. Porter thought that the firing
would need to wait because Mr. Genberg was actively engaged
in fundraising efforts. In the meantime, the Board demanded
that Mr. Genberg stop communicating with the shareholder who
had sent the March 2 email.
Mr. Genberg accuses Mr. Porter of insider trading.
March 4, Mr. Genberg sent an email to a Board member,
accusing Mr. Porter of insider trading. In response, the
Board hired an attorney to investigate
. the allegations of insider trading and
. Mr. Genberg's relationship with the
group attempting to acquire Ceragenix.
the attorney found no evidence of insider trading, he did
confirm that Mr. Genberg had been involved in the effort to
The Board fires Mr. Genberg, and Mr. Porter tells others of
response, the Board fired Mr. Genberg for cause. Afterward,
Mr. Porter reported the firing to a public-relations
consultant and two Ceragenix lenders. In these reports, Mr.
Porter made four statements about Mr. Genberg that he regards
1. He had acted as "the Judas in house" who
facilitated "a hostile takeover."
2. He had been terminated "for cause" and for
"willful breach of fiduciary loyalty."
3. He had lacked any prior experience but was "a shit
4. He had been "an inside man" who "went over
Porter also filed a document with the SEC stating that Mr.
Genberg had been terminated "for cause."
Standard of Review
review de novo the district court's grant of summary
judgment, applying the summary-judgment standard stated in
Federal Rule of Civil Procedure 56. ClearOne Comms. v.
Nat'l Union Fire Ins., 494 F.3d 1238, 1243 (10th
Cir. 2007). Under this standard, summary judgment is
appropriate if the evidence shows that "there is no
genuine issue as to any material fact" and the party
moving for summary judgment is entitled to judgment as a
matter of law. Fed.R.Civ.P. 56(c).
appeal from a grant of summary judgment, we draw all
reasonable factual inferences in favor of the non-moving
party. ClearOne Comms., 494 F.3d at 1243. A party is
thus entitled to summary judgment if the evidence points only
one way and no reasonable inferences could support the
non-moving party's position. Auraria Student Housing
at the Regency v. Campus Village Apartments, 843 F.3d
1225, 1247 (10th Cir. 2016).
The Sarbanes-Oxley Claim
passed the Sarbanes-Oxley Act to "protect investors by
improving the accuracy and reliability of corporate
disclosures." Sarbanes-Oxley Act of 2002, Pub. L. No.
107-204, 116 Stat. 745, 745. To further this goal, the Act
protects whistleblowing employees of publicly traded
companies who tell superiors about a violation of federal
securities law. 18 U.S.C. § 1514A. The Act supplies this
protection by allowing suit against a publicly traded company
or its officers for retaliation. Id.
prima facie case of retaliation, a plaintiff must show that
. he or she engaged in protected activity,
. the employer knew of the protected
. the plaintiff suffered an unfavorable
employment action, ...