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Recent Decisions Create Further Uncertainty on Question of Whether Internal Reporting Triggers Dodd-Frank Whistleblower Anti-Retaliation Protection
20 January 2016
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There is uncertainty in the law on who qualifies for protection under Dodd-Frank’s whistleblower anti-retaliation provision. Recently, two federal district courts held that a purported whistleblower must report wrongdoing to the U.S. Securities and Exchange Commission in order to be protected under the provision.
While these decisions sided with a Fifth Circuit Court of Appeals decision from 2013 and a minority of federal district courts to consider the issue, they are in direct conflict with a Second Circuit decision from September and a majority of federal district courts to consider the issue, which have held the anti-retaliation provision of Dodd-Frank also applies to whistleblowers who only complain to their employers or other regulators.
The decisions nonetheless underscore the importance of ensuring robust policies and procedures relating to internal reporting of whistleblower concerns and protections of potential whistleblowers from retaliation.
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