Second Circuit: No SEC Reporting Requirement In Dodd-Frank Whistleblower Provisions

In a much-anticipated decision, the U.S. Court of Appeals for the Second Circuit set up a possible showdown at the U.S. Supreme Court when it decided on September 10 that whistleblowers need not report to the SEC in order to state a claim for unlawful retaliation under the Dodd-Frank Act whistleblower provisions. (See our earlier discussion on this issue here.) The court expressly recognized that, in deferring to the SEC's interpretation of the statute and its implementing rules, it parted company with the Fifth Circuit in Asadi v. G.E. Energy (USA), L.L.C., 720 F.3d 620 (5th Cir. 2013).

At issue was the relationship between the definition of a whistleblower in Section 21F(a)(6) of the Act, which defines a "whistleblower" as "any individual who provided information relating to a violation of the securities laws to the Commission..." 15 U.S.C. § 78u-6(a)(6) (emphasis added) and Section 21F(h)(1)(A), the anti-retaliation provision, which provides that an employer may