Circuit Split: How Far Does Whistleblower Protection Extend Under Dodd–Frank?

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Khaled Asadi and Daniel Berman worked for companies that were subject to various U.S. securities laws. During the course of their employment, both became aware of potential violations of law and dutifully reported this information to their superiors. Soon thereafter, both men lost their jobs; they believe this was in retaliation for their whistleblowing activity. Both brought suit under Dodd–Frank’s whistleblower protection provisions, which define a whistleblower as “any individual who provides . . . information relating to a violation of the securities laws to the Commission.” Because Mr. Asadi and Mr. Berman only reported violations to their supervisors internally and not to the Securities and Exchange Commission (SEC), their protection under Dodd–Frank was uncertain. The Fifth Circuit held that Dodd–Frank did not protect Mr. Asadi because it only protects employees who report to the SEC directly. The Second Circuit, in contrast, held that Mr. Berman’s internal reporting was sufficient for him to gain protection under Dodd–Frank. These conflicting outcomes have created a circuit split with major implications for the law of whistleblower protection. This Comment ultimately argues that both the text and purpose of Dodd–Frank support the Second Circuit’s conclusion: whistleblowers who report suspected violations of law internally, but not to the SEC, are protected by Dodd–Frank’s anti‐retaliation provisions.

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