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In Berman v. Neo@ogilvy LLC, the Unites States District Court for the Southern District of New York held an employee must report information to the SEC in order to qualify for the anti-retaliation protections afforded by the Dodd-Frank Act. In so doing, the court followed the Fifth Circuit’s opinion in Asadi.

The plaintiff argued that the following paragraph from the definition of “whistleblower” means that conduct does not need to be reported to the SEC: “(iii) in making disclosures that are required or protected under the Sarbanes-Oxley Act of 2002 (15 U.S.C. 7201 et seq.), this chapter, including section 78j–1 (m) of this title, section 1513 (e) of title 18, and any other law, rule, or regulation subject to the jurisdiction of the Commission.”

The court explained that clause (iii) does not define “who” is protected, but only “what acts” are protected.

The court also cited the Fifth Circuit’s explanation: “[I]f an employee reports a securities law violation internally and to the Commission on the same day, and is then fired by the CEO, who is not yet aware of the disclosure to the Commission, the employee would be protected against retaliation under the third category of subsection (h) (and indeed, only under that category).”

A notice of appeal has already been filed so we probably haven’t heard the last on this case.


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