Second Circuit Creates Circuit Split Over Internal Whistleblowers

November 6, 2015

Author: Christine B. Hawes.

The Second Circuit ruled in Berman v. Neo@Ogilvy LLC that a whistleblower whose employment was terminated after he raised concerns internally at his company, rather than filing a formal complaint with the SEC, was protected from retaliation under the Dodd-Frank Act. While recognizing that the statutory protections do not clearly cover internal complainants, the Second Circuit found the SEC’s regulatory interpretation of the statute – that whistleblowers are protected from retaliation even if they only report their concerns internally – is entitled to deference.

The Berman decision creates a circuit split on the issue of whether whistleblowers who raise concerns under Dodd-Frank only internally can avail themselves of the non-retaliation provisions of the statute. In Asadi v. G.E. Energy (USA), L.L.C., the Fifth Circuit rejected the SEC’s arguments and instead found that the anti-retaliation provisions of Dodd-Frank, on their face, do not extend to internal whistleblowers. The Fifth Circuit is the only other Court of Appeals to address the issue at this point. Neo@Ogilvy has requested Supreme Court review of the Berman decision, in light of the circuit split, and the case is a strong candidate for Supreme Court resolution. We will continue to monitor developments on this issue, including the Supreme Court’s decision on the Neo@Ogilvy petition and the outcome of cases pending in other circuits, including Wadler v. Bio-Rad Laboratories, Inc., No. 2:15-cv-2356 (N.D. Cal.).