Second Circuit Creates Split Regarding Definition of Whistleblower Under Dodd-Frank’s Anti-Retaliation Provisions

As we’ve previously reported, on June 17, 2015 the Second Circuit held oral argument in Berman v. Neo@Ogilvy, LLC, a case that presented to the Court the question of who is a “whistleblower” under the Dodd-Frank Wall Street Reform and Consumer Protect Act (“Dodd-Frank” or the “Act”). Specifically, the Court was asked to resolve the question of whether a person could be considered a whistleblower under the Act if he or she did not report concerns to the Securities and Exchange Commission (“SEC”). Yesterday, the Second Circuit answered that question in the affirmative, creating a split between the Second and Fifth Circuits – the only two circuit courts to have ruled on the issue. See, e.g., Asadi v. G.E. Energy (USA), L.L.C., 720 F. 3d 620, 625 (5th Cir. 2013) (“[u]nder Dodd-Frank’s plain language and structure, there is only one category of whistleblowers: individuals who provide information relating to a securities law violation to the SEC.”) 

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