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U.S. Supreme Court To Review Scope Of “Whistleblower” Under Dodd-Frank

On June 26, 2017, the U.S. Supreme Court agreed to review whether individuals who do not report alleged securities law violations to the U.S. Securities and Exchange Commission are “whistleblowers” protected by the anti-retaliation provision of the Dodd-Frank Act. Somers v. Digital Realty Trust, Inc., 850 F.3d 1045 (9th Cir. 2017), cert. granted, No. 16-1276 (U.S. June 26, 2017).

As previously reported here and here, the Ninth Circuit in Somers held that Dodd-Frank’s anti-retaliation provision extends to individuals who make internal complaints even if they do not complain to the SEC. The Ninth Circuit joined the Second Circuit that similarly held in Berman v. Neo@Ogilvy LLC, 801 F.3d 145 (2d Cir. 2015) that a Dodd-Frank “whistleblower” need not report an alleged unlawful violation to the SEC. This is in direct contrast to the Fifth Circuit’s decision in Asadi v. G.E. Energy (USA), LLC, 720 F.3d 620 (5th Cir. 2013) that reached the opposite conclusion. On April 25, 2017, Digital Realty Trust requested the U.S. Supreme Court’s review of the Somers decision, and several organizations and national associations filed amicus curiae briefs urging the Court to grant certiorari. Represented by Proskauer, the Chamber of Commerce of the United States of America submitted its amicus brief in support of review on May 25, 2017.

Having passed on the opportunity to address this issue in Verble v. Morgan Stanley Smith Barney, LLC., No. 16-946 (6th Cir. 2017), the U.S. Supreme Court has now decided to resolve this important question.

© 2019 Proskauer Rose LLP.

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About this Author

Lloyd B Chinn, Financial, Whistleblower Attorney, Proskauer Law Firm
Partner

Lloyd B. Chinn is a Partner in the Labor & Employment Law Department and co-head of the Whistleblowing & Retaliation Group. He litigates employment disputes of all types before federal and state courts, arbitration tribunals (e.g., FINRA, JAMS and AAA), and before administrative agencies in New York and across the country. Lloyd's practice ranges from litigating compensation disputes to defending whistleblower, discrimination and sexual harassment claims. Although he represents employers in a wide range of industries, including law, insurance, health care, consulting, media,...

212-969-3341
Sunghee W Sohn, Proskauer, collective bargainng lawyer, labor counseling attorney
Associate

Sunny Sohn is an associate in the Labor & Employment Law Department and a member of the firm’s Employment Litigation & Arbitration Group.

Sunny represents clients before federal and state courts as well administrative agencies including the Equal Employment Opportunity Commission, the Department of Labor, the National Labor Relations Board, and the Illinois Department of Human Rights.

She counsels employers in a variety of industries, including manufacturing, construction, transportation, hospitality, consulting, financial services and technology located throughout the country, with respect to a wide range of labor and employment law matters, including employment discrimination, collective bargainng and labor counseling, wage and hour compliance, employment contracts and separation agreements, and various restrictive covenants.

During law school, Sunny was a legal intern at the Chicago Board of Education’s Law Department where she represented the Board in administrative labor hearings as well as at the U.S. Attorney’s Office, Northern District of Illinois where she assisted in the research, preparation and trial of various civil and criminal proceedings. In addition, she was a judicial extern for the Honorable Mary Anne Mason, Circuit Court of Cook County, and the Honorable Young B. Kim in the Northern District of Illinois.

312.962.3520