Internal Whistleblowing Protected Against Retaliation Under Dodd-Frank Says Second Circuit

While the Dodd-Frank Act provides various protections to whistleblowers, federal courts have inconsistently interpreted who precisely qualifies as a whistleblower.  In a much-anticipated opinion, the Second Circuit Court of Appeals held, in Berman v. Neo@Ogilvy LLC, that whistleblowers who report wrongdoing internally – but not to the Securities and Exchange Commission – are protected from retaliation under the law.

Background

By way of background, the Dodd-Frank Act defines "whistleblower" to mean an individual who reports information relating to a violation of the securities laws to the SEC.  It also includes an anti-retaliation provision that prohibits publicly-traded companies from discharging, demoting, suspending, threatening, or harassing a whistleblower because the whistleblower, among other things, made a disclosure that is required or protected by the Sarbanes-Oxley Act, the Dodd-Frank Act or any other law subject to the SEC's jurisdiction.  Separately,