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Law Offices of Elizabeth “Booka” Smith, LLC Blog

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September 10, 2015: Second Circuit Agrees with the SEC that Internal Whistleblowing is protected under the Dodd-Frank Act

On September 10, 2015, the Second Circuit Court of Appeals issued
its decision in the case of Berman v.
Neo@Ogilvy LLC, ruling (2-1) that the Dodd-Frank Act
whistleblower protection provision applies to employees who blow-the-whistle
internally (i.e. to their employer as opposed to an external complaint to the
SEC). The majority of the Second Circuit panel concluded that the SEC’s recent interpretive
rule on this issue (see www.bookalaw.com 9-9-2015 blog post) should
be given deference. Accordingly, the Second Circuit reversed the lower court’s
decision to dismiss Mr. Berman’s Dodd-Frank whistleblower retaliation lawsuit
on the grounds that he only informed his employer (and not the SEC) of accounting
fraud. The dissenting opinion in Berman
attacks the majority opinion on several grounds, including criticism that the
SEC’s interpretive rule altered Dodd-Frank by deleting “[report] to the
Commission” from the definition of “whistleblower,” effectively broadening
Dodd-Frank’s intended protections. The Second Circuit opinion in Berman is at odds with the Fifth
Circuit’s 2013 decision in Asadi v. G.E.
Energy (USA), LLC. Although Asadi
predates the SEC’s interpretive rule, the circuit split on this issue might
ultimately have to be resolved by the U.S. Supreme Court. The Law Offices of
Elizabeth “Booka” Smith, LLC routinely represents executives in whistleblower
retaliation cases. If you harbor concerns that your employer may be violating
SEC rules and regulations and are debating whether and how to report your
concerns, or, if you previously reported your concerns and as a result
experienced retaliation in the workplace, CONTACT US to schedule an initial
consultation to evaluate potential representation.

September 15, 2015: Settlement discussions afoot i...
July 2015: Security Exchange Commission Clarifies ...

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