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February 21, 2018: US Supreme Court Narrows Dodd-Frank Whistleblower Protection

On February 21, 2018, the United States Supreme Court issued its written opinion in the matter of Digital Realty Trust, Inc. v. Paul Somers, holding that the anti-retaliation provision of the Dodd-Frank Act does not protect whistleblowers unless they report allegations of corporate wrongdoing to the Securities Exchange Commission (SEC). The 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank) defines a “whistle-blower” as “any individual who provides … information relating to a violation of the securities laws to the Commission, in a manner established, by rule or regulation, by the Commission.” 15 U.S.C. §78u-6(a)(6). Dodd-Frank’s anti-retaliation provision prohibits companies from terminating whistleblowers for reporting securities laws violations. Dodd-Frank also has a “bounty” program that is designed to reward money to employees who report securities laws violations to the SEC. Digital Realty Trust, Inc. is a real estate investment trust that owns, acquires, and develops data centers. Paul Somers is a former Vice President of Digital Realty who was fired shortly after he reported to senior management suspected securities laws violations by the Company. Mr. Somers filed a lawsuit against Digital Realty in California, claiming that the Company fired him in violation of Dodd-Frank’s anti-retaliation provision. Digital Realty moved to dismiss Mr. Somers’ Dodd-Frank anti-retaliation claim on the grounds that Mr. Somers failed to report the alleged securities fraud to the SEC. The California federal district court denied Digital Realty’s motion, which denial was subsequently affirmed by the Ninth Circuit Court of Appeals. The US Supreme Court then granted certiorari to resolve a split between the Fifth and Ninth Circuits on the issue. The US Supreme Court declined Mr. Somers’ argument that only the Dodd-Frank bounty program requires SEC reporting. The US Supreme Court agreed with Digital Realty that in order to be protected by Dodd-Frank’s anti-retaliation provision, Mr. Somers needed to report the securities violations to the SEC. In so ruling, the US Supreme Court noted that Dodd-Frank’s “core objective” is to prompt reporting to the SEC. In the wake of this important Supreme Court decision, corporate employees with knowledge of potential securities laws violations must carefully weigh their options in blowing-the-whistle and decide what avenue is best to protect their employment and economic status. The Law Offices of Elizabeth “Booka” Smith, LLC has experience representing and advising Dodd-Frank whistleblowers. If you are a corporate employee who suspects that your Company may be violating securities laws, CONTACT US to schedule an appointment for advice on your best course of action.

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