Second Circuit Creates Circuit Split on the Question of Whether Internal Reporting Triggers Whistleblower Anti-Retaliation Protection Under Dodd-Frank
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- The Second Circuit Court of Appeals yesterday held in Berman v. Neo@Ogilvy LLC that internal reporting of alleged wrongdoing to an employer is sufficient to trigger protection under Dodd-Frank’s anti-retaliation provision and that whistleblowers need not report externally to the U.S. Securities and Exchange Commission (“SEC”) in order to be afforded such protection.
- The decision creates a circuit split with the Fifth Circuit, whose 2013 decision in Asadi v. G.E. Energy (USA), LLC held that, under the plain language of the statute, the anti-retaliation provision covers only those who blow the whistle externally by providing information to the SEC. With this circuit split, it seems likely that the question will ultimately be addressed by the U.S. Supreme Court.