Employers take heed: there is a further split in authority as to whether whistleblowers are protected under the Dodd-Frank Act if they only report securities-law violations internally, and not to the Securities and Exchange Commission. A recent decision from the Ninth Circuit Court of Appeals adds to the existing split among federal appellate courts as to who is entitled to whistleblower protections.
The Dodd-Frank Act protects employees who blow the whistle on securities law violations. Courts disagree as to who qualifies as a whistleblower under the Act. The plain language used in the definition of “whistleblower,” would exclude from protection those, like the plaintiff in Somers v. Digital Realty Trust, who were fired after making internal disclosures of alleged unlawful activity. In Somers, the Ninth Circuit Court of Appeals took the position that the Dodd-Frank Act’s anti-retaliation provision protects from retaliation those who report to the SEC as well as those who report violations only internally.
The Somers decision deepens a circuit split, as three circuit courts of appeal have now weighed in on the issue. In a 2015 case, the Second Circuit also held that the whistleblower provision extended protections to all those who make disclosures of suspected violations, whether the disclosures are made internally or to the SEC. By contrast, the Fifth Circuit in a 2013 case, interpreted the Dodd-Frank Act’s definition of “whistleblower,” in accordance with its plain meaning, and dismissed a lawsuit where the plaintiff did not report potential violations to the SEC.
While it remains to be seen whether the Somers decision will be petitioned to the U.S. Supreme Court, it is likely that the Supreme Court will address the issue at some point. For now, employers should be aware of the split in authority and continue to monitor the issue.