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

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 | 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).

SESSION 1 – The Separation Agreement Audit: Whistleblower Carve-Outs After the Foot Locker Order | 12:00pm – 1:00pm

Provisions prohibiting departed employees from receiving money compensation in connection with posttermination  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??