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Protection of Whistleblowers under the U.S. Dodd-Frank Act

The U.S. national Dodd-Frank Wall Street Reform and Consumer Protection Act prohibit employers from retaliating against whistleblowers who disclose information that relates to violations of securities laws. A whistleblower is’any person who provides Dodd Frank Act , or two or more people acting jointly who supply, information regarding a violation of the securities legislation to the Commission’. Whistleblowers are protected against retaliation to the effect that’No employer may discharge, demote, suspend, threaten, harass, directly or indirectly, or in any other way discriminate against, a whistleblower in the terms and conditions of employment because of any lawful act done by the whistleblower [inter alia] in supplying information to the Commission’. The first of those provisions specifically refers to information that whistleblowers supply’to the Commission’, i.e. the Securities and Exchange Commission (‘SEC’), and the second refers inter alia to legal acts on the part of whistleblowers’in supplying information to the Commission’, i.e. the SEC.

Under the’Dodd-Frank Act’, a whistleblower’who alleges discharge or other discrimination […] may bring an action […] at the proper district court of the United States for the relief provided in subparagraph (C)’. Subparagraph (C) provides a whistleblower with relief which includes’reinstatement with the same seniority status that the person would have had, but for the discrimination’, ,2 times the quantity of back pay otherwise owed to the patient, with attention’, and’reimbursement for litigation costs, expert witness fees, and reasonable attorneys’ fees’.

The formula of both provisions which refer to whistleblowers that (legally ) provide information to the SEC, raises the question of whether a whistleblower is protected against retaliation under the’Dodd-Frank Act’ if he or she didn’t report information about violations of securities legislation to the SEC, but rather provided this information internally to the direction of the business that supposedly violated securities laws. This dilemma has led to conflicting opinions in the levels of U.S. district and (on appeal) circuit boards, and is currently ahead of the U.S. Supreme Court for its decision. In the course of these proceedings before the Supreme Court, the SEC and the Department of Justice (‘DOJ’) submitted an amicus curiae brief in which they said their views (possibly to some extent contravening the literal text of the’Dodd-Frank Act’).