Where the Whistle Blows: Justices Express Doubt That Dodd-Frank Protection Shields Internal Whistleblowing

| Jason M. Knott

When Congress passed the Dodd-Frank Act in 2010, it bolstered protections for whistleblowers who report certain kinds of misconduct, such as violations of securities law. At the time, the Sarbanes-Oxley Act already provided many of these whistleblowers with a cause of action for retaliation. But the new Dodd-Frank cause of action included a longer statute of limitations, a more generous damages remedy, and a right to proceed straight to federal court rather than first bringing the claim to the Department of Labor (as Sarbanes-Oxley requires).

Sarbanes-Oxley provides protection for individuals who blow the whistle internally. But courts have struggled with whether Dodd-Frank provides that same protection, or if Dodd-Frank protects only individuals who report misconduct to the Securities and Exchange Commission (SEC) directly.

As we covered in June, this dispute finally made its way to the United States Supreme Court, which is ready to answer the question. And on Tuesday, the Court heard oral argument in the case (Digital Realty Trust, Inc. v. Somers). In Digital Realty, the respondent-plaintiff, Somers, reported misconduct internally and was fired. He filed a whistleblower claim under Dodd-Frank, but he filed too late to bring a Sarbanes-Oxley claim. Thus, if he has no Dodd-Frank case, he has no case at all under federal law.

The issue is one of statutory interpretation. In its definitions section, Dodd-Frank defines a “whistleblower” as “any individual who provides . . .  information relating to a violation of the securities laws to the [SEC], in a manner established, by rule or regulation, by the [SEC].” 15 U.S.C. 78u-6(a)(6). Then, in another part of the same section—the anti-retaliation provision—Dodd-Frank states that it “protects ‘whistleblowers’ from retaliation for reporting to the SEC, helping the SEC, or making disclosures protected by Sarbanes-Oxley.”

15 U.S.C. 78u-6(h)(1)(A)(iii).The Court must decide whether the statutory definition of “whistleblower” limits the term “whistleblower” in the anti-retaliation provision in Section 78u-6(h), such that a person must provide information to the SEC in order to qualify as a “whistleblower.”

Based on yesterday’s argument, a number of Justices seem to favor the view that the statutory definition does limit the anti-retaliation provision, thus requiring a person to report to the SEC in order to be protected.

The skepticism of Somers’ claim came from expected and perhaps unexpected sources. Justice Gorsuch, unsurprisingly, said that he was “stuck on the plain language” of the statutory definition. He also questioned the SEC’s adoption of a rule, in an “ipse dixit unreasoned opinion,” that reporting to the SEC is not required for Dodd-Frank protection.

But the more liberal Justices also asked tough questions of Somers’ counsel and the government (which argued in support of Somers’ position). Justice Breyer commented that under Somers’ reading, Dodd-Frank would “basically eliminate[] Sarbanes-Oxley” because Dodd-Frank would match Sarbanes-Oxley’s scope while having other, more favorable provisions. Justice Kagan said that it appeared that the statutory definition applied to the anti-whistleblower provision. And Justice Ginsburg asked whether the Court would be required to find that the statutory definition leads to an “absurd result” in order to override that definition, as opposed to merely finding that it creates deviations from what one might typically expect.

While these Justices seem more willing to find anomalies in applying the limited definition of “whistleblower” to the anti-retaliation provision, they don’t seem ready to say that it’s absurd to do so and render Sarbanes-Oxley redundant. And that may signal bad news for Somers.

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Information provided on InsightZS should not be considered legal advice and expressed views are those of the authors alone. Readers should seek specific legal guidance before acting in any particular circumstance.