A divided three-judge panel of the Second Circuit ruled recently that the whistleblower retaliation provisions of the 2010 Dodd-Frank financial reform law cover internal complaints as well complaints filed with the federal Securities and Exchange Commission (SEC).
The Second Circuit’s ruling in Berman v. Neo@Ogilvy LLC, Case No. 14-4626, held that the pertinent Dodd-Frank whistleblower protection provisions were ambiguous enough to warrant judicial deference to the SEC’s recent interpretive guidance. That guidance states that the law’s whistleblower retaliation provisions cover internal complaints as well as complaints filed with the SEC.
The Second Circuit’s ruling is directly contrary to a 2013 decision issued by the Fifth Circuit, the only other federal appellate court to have addressed the issue, which held that Dodd-Frank protects workers only if they report suspected wrongdoing to the SEC. The Berman decision thus has created a conflict within the federal appeals courts regarding the scope of Dodd-Frank whistleblower retaliation protection, teeing up the issue for potential review by the U.S. Supreme Court.
A copy of the Second Circuit’s ruling in Berman is available online .