Courts confirm Dodd-Frank whistleblowers must report to the SEC

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By Nicolas Morgan, Michael J Sheehan and Grant P Alexander

A recent decision by the Fifth Circuit Court of Appeals has confirmed that the anti-retaliation provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act only confer protections to whistleblowers who report conduct to the Securities and Exchange Commission (SEC).

Dodd-Frank encourages individuals to provide information helpful to the SEC relating to potential violations of US securities laws. The whistleblower programme permits the SEC to pay monetary awards to those individuals who provide information leading to a successful enforcement action. It creates a cause of action for retaliation when an individual suffers an adverse employment action in response to providing helpful information to the SEC.

Following the adoption of the programme, the SEC promulgated regulations that expand the definition of ‘whistleblower’ to include any individual who has reported information which could lead to prosecution by the SEC for violations of US securities laws, even if the individual does not report that information directly to the SEC. Under this expansive SEC regulation, a ‘whistleblower’ would include an individual who only made an internal complaint at the company, but did not report the alleged conduct to the SEC…

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