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Do Dodd-Frank whistleblower protections apply to internal whistleblowers?

A recent court ruling said even if whistleblowers do not speak to the SEC or CFTC, they are still eligible for whistleblower protections under the Dodd-Frank Act.

Two Phillips & Cohen whistleblower attorneys wrote an article for New York University’s Compliance & Enforcement blog that examines the issue of who is a whistleblower as defined by the Dodd-Frank Act and therefore is covered by the law’s whistleblower protections.

Erika Kelton and John Tremblay explored the topic by looking at a recent decision out of the Ninth Circuit Court of Appeals. In Somers v. Digital Realty Trust, the Ninth Circuit ruled that “Dodd-Frank protects whistleblowers from retaliation for reporting suspected violations of securities laws to their employers,” Kelton and Tremblay wrote.

“The Ninth Circuit rejected DRT’s argument, reasoning that if anti-retaliation protection applied only to people who reported to the SEC first, then Dodd-Frank’s explicit protections for employees who make protected disclosures under Sarbanes-Oxley would be rendered virtually meaningless,” wrote Kelton and Tremblay.

That decision joins a Second Circuit decision from 2015, Berman v. Neo@Ogilvy LLC, which also ruled that Dodd-Frank’s whistleblower protections apply to internal whistleblowers.

Not all courts have agreed on the issue. In Asadi v. G.E. Energy (USA), the Fifth Circuit ruled that Dodd-Frank’s anti-retaliation provisions are reserved only for whistleblowers who report directly to the SEC or CFTC.

“Dodd-Frank’s anti-retaliation protection often is what helps a potential whistleblower off the fence to report fraud to his or her employer, and maybe, eventually, the SEC or the Commodity Futures Trading Commission,” wrote Kelton and Tremblay.

You can read Kelton and Tremblay’s entire post on NYU’s Compliance & Enforcement blog.

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