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The Corporate CounselorFeaturesLabor LawLJN NewslettersRegulationWhistleblower Laws

The Scope of the Dodd-Frank's Whistleblower Protection

By Joseph M. McLaughlin and Yafit Cohn

As part of its comprehensive reform of the U.S. financial regulatory system, the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 enhanced and expanded pre-existing protections and bounty incentives to encourage whistleblowing, including those contained in the Sarbanes-Oxley Act (SOX). It did so by amending the Securities Exchange Act of 1934 (Exchange Act) to add a new provision, § 21F, titled “Securities Whistleblower Incentives and Protection.” This new section, however, left open a fundamental question that has engendered significant dispute: Is a corporate employee who reports an employer's possible violation of the securities laws to a supervisor or internal compliance officer — but not to the Securities and Exchange Commission (SEC) — considered a “whistleblower” entitled to protection from retaliation under Dodd-Frank?

Courts that have considered this question have reached differing conclusions. Notably, the U.S. Courts of Appeal for the Second and Fifth Circuits have split on this issue. Recently, the U.S. Court of Appeal for the Ninth Circuit, in Somers v. Digital Realty Trust, 850 F.3d 1045 (9th Cir. 2017), joined the Second Circuit in concluding that the protection from employment retaliation afforded by § 21F covers employees who report a suspected violation of the securities laws internally — not only those who report to the SEC.

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