Second Circuit Holds Whistleblower Anti-Retaliation Provision Does Not Apply Extraterritorially

19 August 2014
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Key takeaways:

  • In a closely-watched decision interpreting the Dodd-Frank Act’s whistleblower provision, the Second Circuit Court of Appeals last week affirmed the Southern District of New York’s decision in Liu v. Siemens A.G. The Second Circuit held that the Dodd-Frank Act whistleblower anti-retaliation provision does not apply extraterritorially because there was no evidence of a congressional intent to apply the anti-retaliation provision extraterritorially and the complaint alleged no facts to suggest a domestic application of the anti-retaliation provision would be proper in this instance.
  • However, because the facts of the Liu case were so clearly extraterritorial, the Second Circuit did not provide insight into what combination of facts – regarding either the wrongdoing or retaliatory acts – might provide sufficient contact with the United States to render application of the statute domestic rather than extraterritorial. That questions remains open and will likely be one that court will continue to grapple with as the contours of the anti-retaliation provision are further defined.
  • The Liu decision should provide at least some level of comfort for companies with global operations, that the allegations by foreign-employees regarding conduct exclusively outside the United States are outside the reach of Dodd-Frank’s anti-retaliation provision.