Baker v. Smith & Wesson, Inc., 40 F.4th 43

Earl Donald Baker was a Smith & Wesson employee who reported alleged bribery and preferential treatment of a vendor by management and was later placed on leave and terminated.
Baker asserted a Sarbanes‑Oxley whistleblower retaliation claim under 18 U.S.C. § 1514A, contending he reasonably believed the reported conduct violated 15 U.S.C. § 78m(b)(2),(5) (the accounting/internal‑controls provisions derived from the FCPA).
Smith & Wesson moved for summary judgment arguing Baker did not engage in the statute’s defined "protected activity," because § 78m(b)(2),(5) is not a "rule or regulation of the Securities and Exchange Commission."
The district court denied summary judgment, finding a reasonable jury could conclude Baker reasonably believed the conduct violated SEC rules concerning accounting/internal controls.
The district court certified an interlocutory question under 28 U.S.C. § 1292(b) whether § 78m(b)(2),(5) constitutes a "rule or regulation of the Securities and Exchange Commission."
The First Circuit reversed: it held § 78m(b)(2),(5) (the FCPA provision/statutory § 78m) is not an SEC rule or regulation, so Baker’s § 1514A claim fails and summary judgment for Smith & Wesson must be entered.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether 15 U.S.C. § 78m(b)(2),(5) is a "rule or regulation of the Securities and Exchange Commission" under SOX § 1514A	Baker: the clause should be read to include statutes that fall within the SEC’s enforcement authority (so § 78m counts)	S&W: "rule or regulation of the SEC" refers to agency rules/regulations, not federal statutes	Held: Reversed — § 78m(b)(2),(5) is a federal statute (FCPA/§ 78m), not an SEC rule/regulation; Baker’s conduct was not protected under § 1514A.
Whether the phrase "relating to fraud against shareholders" modifies all three listed items in § 1514A(a)(1)	Baker: it modifies only the last clause ("any provision of Federal law")	S&W: it modifies all three clauses	Held: Not resolved — court disposed of the case on the separate statutory‑text ground and did not decide this question.

Day v. Staples, Inc., 555 F.3d 42 (1st Cir. 2009) (defines SOX § 1514A "protected activity" standard: subjective belief + objectively reasonable belief)
Wadler v. Bio‑Rad Laboratories, Inc., 916 F.3d 1176 (9th Cir. 2019) (distinguishes "rule or regulation" from "law" in SOX context)
Cuomo v. Clearing House Ass'n, 557 U.S. 519 (2009) ("federal law" ordinarily means federal statutes, not agency rules)
Merit Mgmt. Grp., LP v. FTI Consulting, Inc., 138 S. Ct. 883 (2018) (textualist approach to statutory interpretation)
Russello v. United States, 464 U.S. 16 (1983) (canon: different words in same statute presumed to have different meanings)
Bd. of Trs. of Leland Stanford Junior Univ. v. Roche Molecular Sys., Inc., 563 U.S. 776 (2011) ("of" denotes ownership/origin)
Penobscot Nation v. Frey, 3 F.4th 484 (1st Cir. 2021) (text controls; avoid consulting legislative history when text is unambiguous)