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Vol. 41, No. 4 Spring 2016

Employee Relations Law Journal

By: Howard S. Lavin, Elizabeth E. DiMichele

Who is entitled to the protection of the whistleblower protection provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”)?  Currently, the answer to that question is unsettled, with the only two United States Circuit Courts of Appeals to have considered the issue taking divergent views.   The Fifth Circuit has stated that Dodd-Frank is clear that a “whistleblower” is only an individual who provides information relating to a violation of the securities laws to the Securities and Exchange Commission (the “Commission” or the “SEC”).   The Second Circuit, on the other hand, found the language of the statute ambiguous and, therefore, deferred to the interpretation of the SEC, codified in Exchange Act Rule 21F-2, which extends Dodd-Frank anti-retaliation protection to an employee who reports suspected securities law violations internally without reporting to the Commission.

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