Whistleblowers: Who is Protected Against Retaliation?. Exposing Misconduct.

Whistleblowers: Who is Protected Against Retaliation?

October 23, 2017

It is illegal to retaliate against a whistleblower, but who is considered a whistleblower? In Digital Realty Trust, Inc. v. Somers, the U.S. Supreme Court will consider the question of whether internal whistleblowers, not just those who report alleged misconduct to the SEC, are protected against retaliation under the Dodd-Frank Act. The Digital Realty Trust case, scheduled for oral argument on November 28, stems from a conflict between two relevant provisions of the Dodd-Frank Act. The Dodd-Frank Act defines the term “whistleblower” to mean anyone who provides information relating to a violation of the securities laws “to the Commission,” which seems to clearly exclude internal whistleblowers who fail to report to the SEC. However, the Dodd-Frank Act’s “Prohibition Against Retaliation” provision seems to extend its protections to those filing an internal whistleblower report under, for example, the Sarbanes Oxley Act of 2002.

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