Key takeaways

• 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.