Dodd-Frank Whistleblower Provision: U.S. Supreme Court Holds That Dodd-Frank Act’s Whistleblower Provisions Cover Persons Who Report Concerns to the SEC, Not Those Who Exclusively Report Internally.

Sullivan & Cromwell LLP - February 22, 2018

In Digital Realty Trust, Inc. v. Somers (Feb. 21, 2018), the Supreme Court held that the Dodd-Frank Act’s definition of a “whistleblower” is “unambiguous” and “unequivocal”: it means “any individual who provides . . . information relating to a violation of the securities laws to the Commission.” The Court held, in accordance with that definition, that the Dodd-Frank Act’s anti-retaliation provision—which prohibits employers from retaliating against “whistleblowers” for each of three types of “lawful act[s]”—provides a private cause of action only for persons who report suspected wrongdoing directly to the SEC, and not for persons who report exclusively to their employers internally. The decision resolved a conflict in the courts of appeals, which had split over the question of whether the portion of the anti-retaliation provision, which protects “whistleblowers” who made “disclosures that are required or protected under . . . any . . . law, rule or regulation subject to the jurisdiction of the Commission,” also protected individuals who made internal complaints about possible violations of securities laws. As a result of this decision, individuals who do not report to the SEC may not bring claims under Dodd-Frank; however, they may well have claims under the Sarbanes-Oxley Act, which explicitly protects individuals who report concerns internally from retaliation for having done so.