On February 21, 2018, a unanimous Supreme Court issued its decision in Digital Realty Trust, Inc. v. Somers1, definitively settling a circuit court split over whether the anti-retaliation protections of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank” or the “Act”) extended to individuals who had not reported an alleged securities law violation directly to the Securities and Exchange Commission (“SEC” or the “Commission”). In a ruling that will significantly curtail the ability of employees to bring retaliation claims under the Act, the Supreme Court held that, to sue under Dodd-Frank’s anti-retaliation provision, a person must first have provided information concerning a securities law violation to the SEC. Individuals who only make internal reports of alleged wrongdoing to their employers are not protected “whistleblowers” under Dodd-Frank.
Prior to the Somers decision, a circuit split had developed between the Ninth and Second Circuit Courts of Appeals, on the one hand, and the Fifth Circuit Court of Appeals, on the other hand, with respect to who was covered by Dodd-Frank’s anti-retaliation provision. The Ninth Circuit, whose decision was before the Supreme Court in Somers, ruled that Dodd Frank’s “anti-retaliation provision unambiguously and expressly protect[ed] from retaliation all those who report[ed] to the SEC and who report[ed] internally.”2 Taking a different approach to reach the same outcome, the Second Circuit determined that the operative language in Dodd-Frank was ambiguous and chose to defer to the SEC’s guidance, which stated that the Act’s anti-retaliation provisions afforded protection to individuals who had reported an alleged securities law violation internally, but not to the Commission.3 In contrast to the Ninth and Second Circuits, the Fifth Circuit had determined that the operative definition of a “whistleblower” in Dodd-Frank unambiguously meant that the Act’s anti-retaliation protections apply to individuals who make reports to the SEC and did not encompass those who only make internal reports of alleged wrongdoing.4
As with the decisions from the Second, Fifth, and Ninth Circuits, the Supreme Court’s decision turned on the precise contours of Dodd-Frank’s definition of “whistleblower” and whether this term applied to the Act’s anti-retaliation provision.5 The Court determined that Dodd-Frank supplied “an unequivocal answer” to the issue at hand by defining a “whistleblower” as “any individual who provides ... information relating to a violation of the securities laws to the Commission” and then stating that “the ‘definitio[n] shall apply’ … throughout” the Act.6 Because Dodd-Frank’s anti-retaliation protections are limited to “whistleblowers,” defined as individuals who report to the SEC, the Court unanimously held that an individual who did not report to the SEC “is ineligible to seek redress” under the plain language of the Act’s anti-retaliation provision.7
Justice Ginsburg’s majority opinion, which was joined by Chief Justice Roberts as well as Justices Kennedy, Breyer, Sotomayor and Kagan, further supported its interpretation of Dodd-Frank’s anti-retaliation provision by reviewing the purpose of the Act and contrasting it with the anti-retaliation provisions in the Sarbanes-Oxley Act (“Sarbanes-Oxley”).8 The majority observed that, whereas one of the core purposes of Sarbanes-Oxley was to encourage the development and use of internal reporting systems for potential financial problems, Dodd-Frank’s core objective was “to motivate people who know of securities law violations to tell the SEC.”9 Recognizing that financial inducements alone “may be insufficient to encourage certain employees, fearful of employer retaliation, to come forward with evidence of wrongdoing,” the majority found that Congress included certain heightened protections in Dodd-Frank, designed to protect a specific class of individuals from retaliation—i.e., those who had reported their concerns to the SEC.10
Conclusion
By clarifying the definition of “whistleblower” and narrowing the class of individuals who could qualify for Dodd-Frank’s anti-retaliation protections, the Somers decision puts significant limits on the ability of employees or former employees to pursue retaliation claims against their employers, at least under Dodd-Frank. Internal whistleblowers still have potential protection under Sarbanes-Oxley and state whistleblower laws, however. It remains to be seen whether the Somers decision will prove beneficial to employers in the long run. One potential consequence of this decision is that some employees may elect to skip internal reporting processes altogether in favor of reporting financial issues directly to the SEC, which could result in companies facing more inquiries from the SEC before getting a chance to investigate and address any potential issues internally.
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[1] ___ S. Ct. ___, No. 16-1276, 2018 WL 987345 at *1 (U.S. Feb. 21, 2018).
[2] Somers v. Digital Realty Trust Inc., 850 F.3d 1045, 1049 (9th Cir.), cert. granted, 137 S. Ct. 2300, 198 L. Ed. 2d 723 (2017), and rev’d and remanded, No. 16-1276, 2018 WL 987345 (U.S. Feb. 21, 2018) (emphasis added).
[3] Berman v. Neo@Ogilvy LLC, 801 F.3d 145, 155 (2d Cir. 2015), abrogated by Digital Realty Tr., Inc. v. Somers, No. 16-1276, 2018 WL 987345, at *1 (U.S. Feb. 21, 2018).
[4] Asadi v. G.E. Energy (USA), LLC, 720 F.3d 620, 623-625 (5th Cir. 2013)
[5] Digital Realty Trust, No. 16-1276, 2018 WL 987345 at *8.
[6] Id. (emphasis in original).
[7] Id.
[8] Id.
[9] Id. at 9 (emphasis in original) (citations and quotation marks omitted).
[10] Id.
