                                                                                   FILED
                                                                       United States Court of Appeals
                                           PUBLISH                             Tenth Circuit

                             UNITED STATES COURT OF APPEALS                   February 22, 2018

                                                                          Elisabeth A. Shumaker
                                 FOR THE TENTH CIRCUIT                        Clerk of Court
                                 _________________________________

CARL GENBERG,

            Plaintiff - Appellant,

v.                                                              No. 16-1368

STEVEN S. PORTER,

            Defendant - Appellee,

and

JEFFREY SPERBER; AL
BAUTISTA; CHERYL HOFFMAN-
BRAY; MICHELE DARNAUD;
PHILIPPE GASTONE,

            Defendants.

------------------------------

NATIONAL WHISTLEBLOWER
CENTER,

            Amicus Curiae.
                                 _________________________________

                         Appeal 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.
Robert 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 Defendant-Appellee.

Stephen M. Kohn, Kohn, Kohn & Colapinto, LLP, Washington, D.C., for
Amicus Curiae.
                    _________________________________

Before HARTZ, HOLMES, and BACHARACH, Circuit Judges.
                 _________________________________

BACHARACH, Circuit Judge.
                  _________________________________

     This 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.

     Mr. 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.

     The district court granted summary judgment to Mr. Porter on both

claims. We reverse on the Sarbanes-Oxley claim and affirm on the

defamation claim.

I.   Mr. Genberg battles the Board.

     The action arose from a dispute between Mr. Genberg and the Board.




                                    2
        A.   A merger results in a proxy for Ceragenix’s new
             shareholders.

        In 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.

        B.   Mr. Genberg ghostwrites an email for a Ceragenix
             shareholder.

        Objecting 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.

        C.    The Board considers the email the next day.

        On 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

                                      3
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.

     D.       Mr. Genberg accuses Mr. Porter of insider trading.

     On 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.

Though the attorney found no evidence of insider trading, he did confirm

that Mr. Genberg had been involved in the effort to acquire Ceragenix.

     E.       The Board fires Mr. Genberg, and Mr. Porter tells others of
              the firing.

     In 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 as defamatory:
                                        4
      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 disturber
           deluxe.”

      4.   He had been “an inside man” who “went over the line.”

Mr. Porter also filed a document with the SEC stating that Mr. Genberg

had been terminated “for cause.”

II.   Standard of Review

      We 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).

      On an 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




                                     5
Regency v. Campus Village Apartments, 843 F.3d 1225, 1247 (10th Cir.

2016).

III.   The Sarbanes-Oxley Claim

       Congress 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.

       For a prima facie case of retaliation, a plaintiff must show that

            he or she engaged in protected activity,

            the employer knew of the protected activity,

            the plaintiff suffered an unfavorable employment action, and

            the protected activity was a factor that contributed to the
             unfavorable employment action.

Lockheed Martin Corp. v. Admin. Review Bd., U.S. Dep’t of Labor, 717

F.3d 1121, 1129 (10th Cir. 2013). If a prima facie case is shown, the

defendant can assert a statutory defense known as the “same-action

defense.” Id. at 1130 n.3. This defense requires proof by “clear and

convincing evidence” that the same action would have been taken even

without the protected activity. Id.

                                       6
      Mr. Genberg’s statutory claim is premised on two separate acts of

protected activity: (1) ghostwriting the March 2 email about proxies and

(2) writing the March 4 email that accused Mr. Porter of insider trading.

Mr. Porter admits that writing the March 4 email constituted protected

activity, but he argues that

           the March 2 email did not involve protected activity,

           Mr. Genberg’s protected activity did not contribute to his
            firing, and

           the same-action defense applies.

      A reasonable factfinder could view both of Mr. Genberg’s emails as

protected under Sarbanes-Oxley. Thus, we need not parse which email led

to his firing: it is enough under the statute and the summary-judgment

standard that a reasonable factfinder could regard either email as a factor

contributing to the firing. In addition Mr. Porter forfeited the same-action

defense, and a reasonable factfinder could conclude that Mr. Porter had not

shown that the Board would have fired Mr. Genberg in the absence of

protected activities. These conclusions lead us to reverse the grant of

summary judgment to Mr. Porter on the Sarbanes-Oxley claim.

      A.    A factfinder could reasonably regard the writing of both
            emails as protected activity.

      Mr. Genberg’s activities consisted of writing two emails in early

March 2010. The first email was sent to the Board on March 2, and the

second one was sent on March 4.
                                      7
      The March 4 email accused Mr. Porter of giving inside information to

a stockholder to rig the price of Ceragenix shares. Mr. Porter admits that

writing this email constituted protected activity under Sarbanes-Oxley. 1

      The March 2 email demanded that the Ceragenix Board transfer

proxy voting rights to the shareholders. The Board had come to control the

proxy rights in November 2005. When receiving the email, the Board had

controlled the proxy rights for roughly five years. The email stated that it

was “neither fair, just [n]or equitable” for the Ceragenix Board to “retain

the voting power over these shares for [five] years and use such power to

re-elect the members of the Board of Directors without any consideration

for the interests of investors.” Appellant’s App’x Vol. 4 at 877. This

retention of voting power, the email argued, clashed with SEC policies of

“sound corporate governance and shareholder accountability.” Id. at 879.

      The district court concluded that writing the March 2 email was not

protected activity, reasoning that the email had not “‘definitively and

substantively’” related to a violation of law. Appellant’s App’x Vol. 7 at

1335 (quoting Fraser v. Fiduciary Trust Co., No. 04 Civ. 6958(PAC), 2009

WL 2601389, at *5 (S.D.N.Y. Aug. 25, 2009)). In drawing this conclusion,

the court pointed out that the March 2 email had not cited a specific SEC



1
     Mr. Porter makes this admission solely for purposes of summary
judgment.

                                      8
rule. This omission led the district court to conclude that the email had not

involved protected activity.

      The district court applied the wrong standard to determine whether

the March 2 email had involved protected activity. Under the proper

standard, a factfinder could reasonably characterize writing the March 2

email as protected activity.

      1.    The district court’s “definitive and specific” standard is no
            longer applicable.

      The district court stated that the March 2 email was protected only if

Mr. Genberg had specifically identified the rule being violated. This

statement of the burden was incorrect, for the Administrative Review

Board of the Department of Labor has “explicitly disavowed the ‘definitive

and specific’ evidentiary standard.” Lockheed Martin Corp. v. Admin.

Review Bd., U.S. Dep’t of Labor, 717 F.3d 1121, 1132 n.7 (10th Cir. 2013).

And the Administrative Review Board’s interpretation of Sarbanes-Oxley

is subject to Chevron deference. Id. at 1131.

      Under Chevron deference, we follow the Administrative Review

Board’s interpretation if it is based on a permissible construction of an

ambiguous statute. Id. And this construction of the Sarbanes-Oxley Act is

permissible because of ambiguity in the statutory text. See West v. Lynch,

710 F.3d 121, 129-31 (3d Cir. 2013) (applying Chevron deference to the




                                      9
Administrative Review Board’s rejection of the “definitive and specific”

evidentiary standard).

      Mr. Porter admits that the “definitive and specific” test no longer

applies. 2 But he contends that the district court applied the correct

standard. We disagree. The district court noted that Mr. Genberg’s

allegations in the email had not been specific and had failed to

“specifically refer to any of the six enumerated laws” in the Sarbanes-

Oxley Act. Appellant’s App’x Vol. 7 at 1337. This lack of specificity led

the district court to conclude that Mr. Genberg had no “reasonable belief

that any specific SEC rule or regulation was being violated.” Id. (emphasis

added). In light of this conclusion and the rationale, we conclude that the

district court used the obsolete “definitive and specific” standard.

      2.    Applying the correct standard, a factfinder could
            reasonably conclude that writing the March 2 email had
            entailed a protected activity.

      In Sylvester v. Parexel International, the Administrative Review

Board stated the correct standard for a protected activity: “[T]he [plaintiff]

need only show that he or she ‘reasonably believes’ that the conduct

complained of constitutes a violation of the laws listed” in the Sarbanes-


2
      For purposes of the appeal, Mr. Porter “does not dispute that the
Administrative Review Board . . . has ‘explicitly disavowed the “definitive
and specific” evidentiary standard for Sarbanes-Oxley complaint,’ and that
numerous circuits have since rejected this standard.” Appellee’s Resp. Br.
at 26 n.9.

                                      10
Oxley Act. No. 07-123, 2011 WL 2517148, at *11 (Admin. Rev. Bd., U.S.

Dep’t of Labor May 25, 2011). As noted above, we accord Chevron

deference to the Administrative Review Board’s interpretation of the

statutory standard. See Lockheed Martin Corp. v. Admin Review Bd., U.S.

Dep’t of Labor, 717 F.3d 1121, 1132 n.7 (10th Cir. 2013). In light of the

need for deference, the only four circuits to address the issue have

followed Sylvester’s articulation of the standard. Beacom v. Oracle Am.,

825 F.3d 376, 380 (8th Cir. 2016); see also Rhinehimer v. U.S. Bancorp

Investments, 787 F.3d 797, 808-09 (6th Cir. 2015) (“Indeed, we have not

found a decision by a federal court of appeals that considers and rejects the

reasoning in Sylvester.”). And here, Mr. Porter has not questioned the need

to defer to the Administrative Review Board’s articulation of the standard.

     The Sylvester standard contains subjective and objective components.

Under the subjective component, the employee “must actually believe” that

the conduct raised in the communication is unlawful. Lockheed, 717 F.3d

at 1132. Under the objective component, the belief must be reasonable. Id.

Thus, writing the March 2 email would constitute a protected activity if

          Mr. Genberg had actually believed that the Board’s retention of
           the proxy “constituted a violation of relevant law” and

          a reasonable person might adhere to the same belief.

     Mr. Porter’s appeal brief mentions both the objective and subjective

components of the Sylvester standard. But his arguments challenge only the


                                     11
subjective component (Mr. Genberg’s actual belief that the Board violated

an SEC rule by retaining the proxy); Mr. Porter makes no meaningful

arguments regarding whether such a belief would have been reasonable.

Thus, we focus on the subjective component.

      The March 2 email

           accused the Board of holding onto the proxy for “years longer
            than was ever contemplated” and

           argued that the Board had “deprived [the shareholders] of any
            voice in the management of Ceragenix.”

Appellant’s App’x Vol. 4 at 879. Mr. Genberg defends this accusation

based in part on SEC Rule 14a-4(d)(2). This rule states that “[n]o proxy

shall confer authority . . . [t]o vote at any annual meeting other than the

next annual meeting . . . .” 17 C.F.R. § 240.14a-4(d)(2).

      Mr. Genberg stated under oath that he had believed that the

Ceragenix Board was violating SEC Rule 14 by continuing to rely on the

initial proxy. 3 Though Mr. Porter challenges the truth of Mr. Genberg’s


3
      The concurrence/dissent’s critical reading of the March 2 email
requires too much under the Sylvester standard. The concurrence/dissent
cites opinions on the need to avoid litigation over “sham” affidavits, but
Mr. Genberg had no obligation to explain the omission of a citation to
federal securities law in his March 2 email.

      The opinions cited in the concurrence/dissent do not involve an issue
like this one. Kendrick v. Penske Transportation Services concerned the
common-sense rule that affidavits contradicting earlier sworn testimony
cannot create “‘sham fact issue[s].’” 220 F.3d 1220, 1223 n.2 (10th Cir.
2000) (quoting Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir. 1986)).

                                      12
sworn statement, the credibility of the statement cannot be resolved on

summary judgment. See Jaxon v. Circle K Corp., 773 F.2d 1138, 1140 n.2

(10th Cir. 1985) (“Credibility disputes are particularly inappropriate for

summary judgment disposition, especially those involving the affidavit of

an interested party concerning facts known only to him.”). A reasonable

factfinder could conclude that Mr. Genberg was telling the truth when he

stated under oath that he had regarded retention of the proxy as a violation

of Rule 14. The reasonableness of that factual finding prevents summary

judgment on the subjective requirement. See Sylvester, 2011 WL 2517148,

at *12 (requiring that the employee actually believe that the employer was

in violation of the law). 4

      Mr. Porter points out that the email acknowledged that the Board was

not violating a particular SEC rule. But a reasonable factfinder could

conclude that this part of the email was discussing a different issue. There

Mr. Genberg was apparently addressing the purpose of SEC Rule 452,



Mr. Genberg had no earlier sworn testimony to contradict, and his affidavit
did not conflict with the March 2 email. The other cited opinion, Hexcel
Corp. v. Ineos Polymers, stated only that conclusory allegations cannot
defeat summary judgment. 681 F.3d 1055, 1063-64 (9th Cir. 2012). This
proposition does not apply here, for Mr. Genberg’s Sarbanes-Oxley claim
is governed by the Sylvester rule. This rule did not require Mr. Genberg to
include a citation to the underlying rule in his March 2 email.
4
      Mr. Genberg also allegedly believed that the Board had violated
other SEC rules and Delaware law. We need not address these allegations.

                                     13
which governed proxy voting rules for shares held in street names voted by

brokers. The requirements in Rule 452 are distinct from those in Rule 14.

     The district court relied not only on the discussion apparently

involving Rule 452 but also on Mr. Genberg’s sophistication in the

industry, suggesting that Mr. Genberg didn’t truly believe that the Board

was violating a particular SEC rule. Otherwise, why wouldn’t he have

referred to SEC Rule 14 in the email?

     But a factfinder might reasonably conclude that there was little need

for Mr. Genberg to name the rule, for it seems to clearly bar use of a proxy

for shareholder votes after the next annual meeting. 17 C.F.R. § 240.14a-

4(d)(2). In light of Rule 14, a factfinder might reasonably conclude that

Mr. Genberg believed that the Board was violating the SEC rule.

                                   * * *

     This conclusion would require the court to consider the writing of the

March 2 email as a protected activity. As noted above, Mr. Porter does not

question satisfaction of the objective requirement (the reasonableness of

Mr. Genberg’s belief). And a factfinder could reasonably conclude that Mr.

Genberg had believed that continued use of the proxy would violate SEC

Rule 14.




                                     14
        B.   A genuine factual dispute existed on whether the emails had
             contributed to the firing.

        Mr. Porter contends that neither email had contributed to Mr.

Genberg’s termination. In our view, however, a reasonable factfinder could

conclude that both emails had contributed to the termination.

        The fourth element of the statutory claim is that the protected

activity contributed to Mr. Genberg’s termination. Lockheed Martin Corp.

v. Admin. Review Bd., U.S. Dep’t of Labor, 717 F.3d 1121, 1129 (10th Cir.

2013). This element is “broad and forgiving,” requiring the plaintiff to

point to “‘any factor’” that “‘tends to affect in any way the outcome of the

decision.’” Id. at 1136 (emphasis in original) (quoting Klopfenstein v. PCC

Flow Techs., No. 04-149, 2006 WL 3246904, at *13 (Admin. Rev. Bd.,

U.S. Dep’t of Labor May 31, 2006)). The contributing factor need not be

“‘significant, motivating, substantial, or predominant.’” Id. (internal

quotation marks omitted) (quoting Klopfenstein, 2006 WL 3246904, at

*13).

        1.   A reasonable factfinder could conclude that the March 2
             email had contributed to Mr. Genberg’s termination.

        The sequence of events supports Mr. Genberg’s argument that the

March 2 email contributed to his termination. Reacting to the email, the

Board took less than a month to begin an investigation, finish it, and fire

Mr. Genberg. See Lockheed, 717 F.3d at 1136 (“Temporal proximity



                                       15
between the protected activity and adverse employment action may alone

be sufficient to satisfy the contributing factor test.”).




      In fact, Mr. Porter argues that the Board decided to fire Mr. Genberg

on March 3, only one day after receiving Mr. Genberg’s email: “The

undisputed evidence establishes that the Board decided on March 3 that

they needed to fire Genberg, but wanted to temporarily delay his firing

until Ceragenix secured the capital it needed to survive.” Appellee’s Resp.

Br. at 17; accord id. at 43 (arguing that the Board agreed on March 3 that

Mr. Genberg “should be fired at a later date”).

      Mr. Porter argues that the Board fired Mr. Genberg in part because

he had concealed his role in the March 2 email. According to Mr. Porter,

the Board did not act because of anything that Mr. Genberg had said in the

email, pointing out that Mr. Genberg had raised similar concerns in

February 2010. But the factfinder had no obligation to credit Mr. Porter’s

focus on “concealment” or Mr. Genberg’s prior expression of concern. The


                                       16
factfinder could reasonably conclude that Mr. Genberg had been fired

because of what he had said. After all, Mr. Porter does not suggest that Mr.

Genberg had lied about his role in drafting the email. And Mr. Genberg had

expressed concern in February 2010 to a different Board member (Mr. Jeff

Sperber), not Mr. Porter. Thus, Mr. Porter’s alternative explanations for

the firing do not justify summary judgment.

      2.    Mr. Porter cannot avoid liability based on a “legitimate
            intervening event.”

      On March 4, Mr. Genberg also sent a second email to a Board

member, alleging that Mr. Porter had leaked inside information to a

stockholder to aid efforts to rig the price of Ceragenix stock. Mr. Porter

admits (for purposes of summary judgment) that this email constituted

protected activity. But he denies that this email contributed to the

termination. Instead, Mr. Porter attributes the firing to a legitimate

intervening event: the investigator’s determination that Mr. Genberg had

breached a fiduciary duty to Ceragenix. See Feldman v. Law Enforcement

Assocs., 752 F.3d 339, 348-49 (4th Cir. 2014) (discussing how an

intervening event can prevent consideration of protected activity as a

significant cause of the termination). We disagree.

      To rely on a legitimate intervening event, the adverse action cannot

be inextricably intertwined with the protected activity; therefore, Mr.

Porter needed to explain Mr. Genberg’s termination “without reference to


                                      17
[his] protected activity.” Palmer v. Canadian Nat’l Ry./Ill. Cent. R.R., No.

16-035, 2016 WL 5868560, at *34 (Admin. Rev. Bd., U.S. Dep’t of Labor

Sept. 30, 2016). Mr. Porter did not satisfy this burden. Ceragenix began to

investigate Mr. Genberg only after he had written the two emails, and we

have already held that a reasonable factfinder could regard the writing of

both emails as protected activity.

      If we take away both emails, Ceragenix would never have had a

reason to investigate Mr. Genberg. Therefore, a reasonable factfinder could

conclude that Mr. Genberg’s protected activities on March 2 and 4 were

inextricably intertwined with his termination. See id. at *34-35 (stating

that if the protected activity had led the employer to investigate a possible

rule violation and then fired the employee for violating the rule, “the

protected activity . . . would be ‘inextricably intertwined’ with the adverse

action”). And if the investigation was inextricably intertwined with

protected activities, we could not regard the investigation as an

“independent” cause for the termination. See id. Thus, Mr. Porter cannot

avoid liability based on a legitimate intervening event.

      3.    A reasonable factfinder could conclude that Mr. Genberg
            would not have been fired in the absence of a protected
            activity.

      Mr. Porter also invokes the same-action defense. This defense allows

the defendant to prevail by submitting clear and convincing evidence that

the employee would have been fired even without the protected conduct.

                                      18
Lockheed Martin Corp. v. Admin. Review Bd., U.S. Dep’t of Labor, 717

F.3d 1121, 1129 n.3 (10th Cir. 2013). Mr. Porter forfeited this defense, and

it would not justify summary judgment even if the issue had been

preserved.

      Mr. Porter did not assert this defense either in his Answer 5 or in his

summary-judgment briefs. Mr. Porter points out that he argued that Mr.

Genberg’s protected activity had not contributed to his termination and

asserts that this argument was sufficient to preserve his same-action

defense. We disagree. The “contributing factor” inquiry considers

everything that took place and requires the employee to prove that the

protected activity was taken into account as a reason for the firing. In

contrast, the same-action defense requires the employer to show that it

would have taken the same action even if there had never been a protected

5
      Mr. Porter’s Answer appears to expressly disavow the relevance of
the same-action defense:

      120. Once a Plaintiff has established a prima facie case, then
      . . . the employer [must] demonstrat[e] by clear and convincing
      evidence that it would have taken the same adverse employment
      action in the absence of the plaintiff’s protected activity.

      RESPONSE:        Paragraph 120 states Plaintiff’s own legal
      analysis and thus no response is required; denied to the extent
      this allegation is contrary to the plain language of [the
      Sarbanes-Oxley Act] and relevant case law; otherwise denied
      that this has any relevance to Porter’s actions.

Appellants’ App’x Vol. 3 at 658 (citation omitted) (second emphasis
added)

                                      19
activity. See Palmer v. Canadian Nat’l Ry./Ill. Cent. R.R., No. 16-035,

2016 WL 5868560, at *12 (Admin. Rev. Bd., U.S. Dep’t of Labor Sept. 30,

2016) (explaining this difference between the two inquiries); see also

Formella v. U.S. Dep’t of Labor, 628 F.3d 381, 389 (7th Cir. 2010)

(distinguishing the “contributing factor” inquiry and the same-action

defense).

     Application of the two tests would entail different inquiries. Under

the “contributing factor” inquiry, the question is whether the content of

Mr. Genberg’s communications had been a factor in his termination. But

under the same-action defense, the court would consider what would have

happened if Mr. Genberg had never written either email: No one would

have been investigating Mr. Genberg, so the Board would never have

known that Mr. Genberg had done anything wrong. Thus, Mr. Porter’s

challenge in district court on the “contributing factor” element did not

preserve reliance on the same-action defense.

     But let’s assume, for the sake of argument, that this defense was

preserved. Even with this assumption, Mr. Porter could not justify the

award of summary judgment. To prevail on this defense, Mr. Porter needed

to show that Mr. Genberg would have been fired even if he had not written

either email. Mr. Genberg might have been fired even if he had not written

either the March 2 or March 4 email. But that possibility does not entitle

Mr. Porter to summary judgment on the Sarbanes-Oxley claim.

                                     20
      On this issue, a reasonable factfinder could have gone either way.

The March 2 email led the Board to conclude that Mr. Genberg could be

terminated “for cause,” and Mr. Porter acknowledges that the Board

decided to fire Mr. Genberg on March 3 based on his email one day earlier.

In addition, the March 4 email led the Board to order an investigation that

ultimately confirmed Mr. Genberg’s role in the March 2 email. The Board

purported to rely on this confirmation to fire Mr. Genberg. Thus, it is

unclear whether the Board would have fired Mr. Genberg absent the March

2 and March 4 emails. In light of this uncertainty, Mr. Porter could not

obtain summary judgment even if he had preserved the same-action

defense.

                                    * * *

      The district court granted summary judgment to Mr. Porter on Mr.

Genberg’s Sarbanes-Oxley claim. We reverse this grant of summary

judgment. A factfinder could reasonably conclude that Mr. Genberg had

engaged in protected activity by writing the email on March 2, and Mr.

Porter argues that the Board decided the next day to eventually fire Mr.

Genberg. With further protected activity on March 4, the Board decided to

investigate Mr. Genberg himself. This investigation ultimately led the

Board to fire Mr. Genberg. In these circumstances, a reasonable factfinder

could conclude that Mr. Genberg’s protected activities had contributed to

his firing.

                                     21
    IV. Defamation Claim

        Mr. Genberg also sued Mr. Porter for defamation based on statements

to a Ceragenix consultant, Ceragenix lenders, and the SEC. This claim fails

as a matter of law.

        The parties agree that Nevada law applies to the defamation claim,

and Nevada recognizes a common-interest privilege. Lubin v. Kunin, 17

P.3d 422, 428 (Nev. 2001). The privilege applies if

            the defamatory statement was made in good faith and

            the writer and the reader share a common interest in the content
             of the statement.

Id. Mr. Genberg admits that the privilege applied to Mr. Porter’s

defamatory statements and argues only that Mr. Porter abused the

privilege. 6 In support, Mr. Genberg contends that a defendant can abuse the

common-interest privilege other than through malicious statements.

        The privilege is abused when a defendant “publishe[s] with malice in

fact or otherwise abuse[s] the privilege.” Pierson v. Robert Griffin

Investigations, Inc., 555 P.2d 843, 843 (Nev. 1976). But the privilege is

abused only if the defendant acted “without belief in the statement’s

probable truth.” Circus Circus Hotels, Inc. v. Witherspoon, 657 P.2d 101,

105 n.2 (Nev. 1983).

6
      Mr. Genberg also argued in his opening brief that the privilege did
not apply to Mr. Porter’s SEC filing. But Mr. Genberg admitted in his
reply brief that he had failed to preserve this issue in district court.

                                      22
     Mr. Genberg does not argue that Mr. Porter doubted the truth of what

he said. To show abuse of the privilege, Mr. Genberg needed evidence that

Mr. Porter

            had thought his statements were false or

            had disregarded their falsity.

See id. Because Mr. Genberg did not present such evidence, Mr. Porter was

entitled to summary judgment on the defamation claim.

V.   Conclusion

     A trier of fact could reasonably find satisfaction of the elements of a

Sarbanes-Oxley claim. Doing so, the trier of fact could reasonably view the

March 2 and March 4 emails as protected activities that had contributed to

Mr. Genberg’s termination.

     Mr. Porter newly asserts the same-action defense, but a reasonable

factfinder could conclude that Mr. Genberg would not have been fired in

the absence of the March 2 and March 4 emails. As a result, Mr. Porter is

not entitled to summary judgment based on the same-action defense.

Because the district court found otherwise, we

            reverse the district court’s grant of summary judgment to Mr.
             Porter on the Sarbanes-Oxley claim and

            remand for further consideration of this claim.

     But on the defamation claim, we affirm the district court’s award of

summary judgment to Mr. Porter. His statements fell under the common-

                                       23
interest privilege, and Mr. Genberg has not presented evidence of an abuse

of the privilege.




                                    24
16-1368, Genberg v. Porter

HARTZ, Circuit Judge, concurring and dissenting:

       I concur in the panel opinion’s affirmance of the summary judgment on the

defamation claim; but I respectfully dissent from the reversal of the summary judgment

on the claim of retaliation under the Sarbanes-Oxley Act. I would affirm the district

court on the ground that no reasonable juror could infer that Mr. Genberg subjectively

believed that the March 2, 2010 email to the board of directors of Ceragenix

Pharmaceuticals, Inc. (the Salamon email) was reporting a past, or even potential,

violation of federal securities law. Although Mr. Genberg, the author of the email, had

been a lawyer sophisticated in securities law, the email never states that any conduct by

anyone had violated or would violate federal securities law. And the email’s references

to the proxy, which the panel opinion suggests may have violated an SEC regulation,

complain about the proxy only in terms of bad policy or corporate management. Nor can

Mr. Genberg’s affidavit, submitted long into this litigation and almost six years after the

email, carry the day. Its convoluted language fails to allege any prior violation of

securities law and, more importantly, it suffers the fatal defect of other sham affidavits in

failing to explain why, if Mr. Genberg believed there was a violation of securities law, he

failed to say that in the email.

       An important part of the context of the Salamon email is that Mr. Genberg had

been a lawyer specializing in securities and business litigation. In the 1990s he had been

the lead plaintiff’s attorney in a multidistrict securities-fraud action. Perhaps, though I

doubt it, a sheepish unsophisticated person who believed that Ceragenix had been
violating or was about to violate federal securities law could have authored the Salamon

email; but it beggars imagination to conceive that Mr. Genberg had that belief when he

sent the email.

       The purpose of the Salamon email, as stated in its opening sentence, was “to

request the immediate transfer of voting rights in the proxy you hold over shares of

Ceragenix [Pharmaceuticals].” Aplt. App. Vol. 4 at 877. I can think of no better way to

encourage the directors to comply with a request than to say that what is being requested

is commanded by federal securities law. But the email never says that.

       On the contrary, the email suggests that the request is not a demand to comply

with federal law. The reasoning behind the request is first presented in the second

paragraph of the email. The initial sentence of that paragraph begins: “This request is

based, in part, on recent SEC changes to proxy voting rules (affecting the ability of shares

held in ‘street name’ to be voted by brokers in uncontested elections for the Board of

Directors),” and then quotes the SEC’s stated rationale for the changes. Id. This may

look like an assertion that securities law is being violated, but the second sentence

explains: “While the new proxy rule is not directly applicable (as it applies to share[s]

held in street name voted by brokers) the policy rationale is clearly on point.” Id. Thus,

the email explicitly states that the recent change to proxy rules does not apply. And the

following sentence states: “We believe that [it] is neither fair, just or equitable that you

retain the voting power over the shares for 5 years and use such power to re-elect the

members of the Board of Directors without any consideration for the interests of

investors.” Id. Why would anyone, much less a lawyer, make a plea on the basis of

                                              2
fairness and justice and equity if he thought that federal law required the requested

action? Why would a person believing that conduct he wishes to halt is in violation of

federal law, make no mention of that belief but commence his argument by stating that

another law does not apply and conclude by seeking justice and fairness? Such extreme

pussyfooting is not rational, and no reasonable person could believe that Mr. Genberg

was acting in that manner.

       The next few paragraphs of the Salamon email (consisting largely of quotations

from the Ceragenix 2008 proxy statement) describe the history of the escrowed shares

and accompanying proxy and explain why the continuance of the proxies is unfair to

those sending the email. The eighth paragraph of the email ends by complaining that the

proxy has been kept “alive for a period [of] years longer than was ever contemplated and

has thus deprived us of any voice in the management of Ceragenix. Whose interest is the

Board accountable to when it votes the proxy over what constitutes nearly 66% of the

voting power in Ceragenix? This is the antithesis of sound corporate governance and

shareholder accountability.” Id. at 879. The panel opinion characterizes the last quoted

sentence as follows: “This retention of voting power, the email argued, clashed with SEC

policies of ‘sound corporate governance and shareholder accountability.’” Maj. Op. at 8.

But I cannot find in that paragraph (or anywhere in the email except the previously

quoted portion of the second paragraph referring to an admittedly inapplicable proxy

rule) any suggestion that the email was referring to SEC policies, much less federal

securities law, when it spoke of corporate governance and shareholder accountability.

There is a reference to “sound corporate governance” two paragraphs later, but there the

                                             3
email invokes Delaware law, not federal law: “We believe that sound corporate

governance requires annual shareholder meetings as required by Title 8 Section 211 (C)

of the Delaware General Corporate Laws.” Aplt. App. Vol. 4 at 879. Mr. Genberg was

not shy about invoking applicable law in this email.

       Then there is the final paragraph of the email. It is incomprehensible to me how

Mr. Genberg could have written the paragraph as he did if he believed there was a

violation of federal securities law. It reads:

       We look forward to your prompt action in redressing this issue. We hope
       that you share SEC Chairman Shapiro’s view that voting rights should be
       exercised by those with an economic interest in the company. We ask that
       you immediately transfer to us the proxy granted to you over the common
       shares of Ceragenix so that we may exercise this voting power until such
       time that Osmotics completes its long delayed plan of distribution for these
       shares. We trust that it will not be necessary to bring this matter before the
       Delaware Court of Chancery.
Id. Rather than referring to federal law, he refers to the “view” of the SEC chairman.

And rather than threatening action based on federal law, he threatens litigation in the

Delaware chancery court. Is it really reasonable to believe that Mr. Genberg wrote this

with the belief that the action he was demanding was required by federal securities law?

       I am not saying that Mr. Genberg’s claim is deficient just because the email failed

to cite to a specific SEC rule that had been or might be violated. The problem is deeper

than that. Everything about the email conveys the author’s belief that the challenged

behavior was not governed by federal securities law.

       What about Mr. Genberg’s affidavit, executed on February 6, 2016, just shy of six

years after the Salamon email, in response to Mr. Porter’s motion for summary


                                                 4
judgment? The panel opinion construes the affidavit as asserting that Mr. Genberg had

believed that Ceragenix was violating SEC Rule 14a-4(d)(2), which states that “[n]o

proxy shall confer authority . . . [t]o vote at any annual meeting other than the next annual

meeting . . . .” See Maj. Op. at 12. I will not challenge that construction, although I note

that the affidavit is not that specific (referring only to “Rule 14,” Aplt. App. Vol. 6 at

1110) and that the record indicates that there could not have been a prior violation of

Rule 14a-4(d)(2) because Ceragenix had held only one annual shareholder meeting after

execution of the proxy.

       The fundamental flaw in the affidavit arises from a different omission. It utterly

fails to explain why, if Mr. Genberg believed at the time of the Salamon email that

Ceragenix had engaged or was going to engage in conduct contrary to federal securities

law, he omitted any mention of that belief in the email. This court has previously

recognized how the legal process can be gamed by last-minute affidavits submitted in

response to motions for summary judgment. Even a sincere litigant can convince himself

years (here six years) after the event, contrary to the previously developed record, of the

truth of a matter that now appears to be essential to survival of his claim. Although

“sham affidavit” opinions typically address conflicts between such an affidavit and prior

deposition testimony, the rationale is that the affiant had every reason to disclose the

information earlier, so the last-minute affidavit should at least explain the failure. To

prevent “sham” affidavits from improperly prolonging litigation, we require the affidavit

to explain why the affiant did not mention the matter at an earlier time when one would

fully expect it to have been mentioned. See, e.g., Kendrick v. Penske Tranps. Servs., Inc.,

                                              5
220 F.3d 1220, 1223–24 n.2 (10th Cir. 2000) (noting no attempt to clarify prior

testimony); Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir. 1986); cf. Hexcel Corp. v.

Ineos Polymers, Inc., 681 F.3d 1055, 1063–64 (9th Cir. 2012) (“narrow, conclusory

denials” of knowledge in affidavit could not defeat summary judgment). But Mr.

Genberg’s affidavit provides absolutely nothing in explanation of why he failed to

mention in the Salamon email the possibility of a violation of SEC proxy rules. His

conclusory assertion that he had a belief six years earlier does not create a genuine

dispute of material fact.

       Perhaps in the long run it does not matter whether we determine that Mr. Genberg

was engaged in protected activity when he sent the Salamon email. The second element

of his retaliation claim under the Sarbanes-Oxley Act is that Mr. Porter knew that

Mr. Genberg was engaging in protected activity. See Lockheed Martin Corp. v. Admin.

Review Bd., U.S. Dep’t of Labor, 717 F.3d 1121, 1129 (10th Cir. 2013). As explained

above, no reasonable person would think that the Salamon email was alleging a violation

of federal securities law. Summary judgment appears inevitable on that ground. See

Petersen v. Utah Dep’t of Corrs., 301 F.3d 1182, 1188–89 (10th Cir. 2002).

       Finally, although Mr. Porter concedes that Mr. Genberg’s March 4 email alleging

insider trading was protected activity, there is no genuine dispute that Mr. Genberg would

have been fired even had there been no March 4 email.




                                             6
