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Supreme Court Holds Whistleblower Must First Blow The Whistle To The SEC
By Keith Paul Bishop, February 21, 2018
February 21, 2018
In 2010, the United States Congress included both whistleblower incentives and protections in the Dodd-Frank Act. If you are going to reward or protect "whistleblowers", it is helpful to know who they are. Congress helpfully included the following definition:
“any individual who provides . . . information relating to a violation of the securities laws to the Commission, in a manner established, by rule or regulation, by the Commission.”
15 U.S.C. § 78u–6(a)(6). Note that an element of the definition is reporting to the SEC. The SEC's implementing rule, Rule 21F-2, however, includes no such requirement. See Exactly What Part Of "To The Commission" Is Ambiguous? and California Judge Sides With Congress and Fifth Circuit In Whistleblower Split.
This morning, the U.S. Supreme Court answered the following question: Does the anti-retaliation provision of Dodd-Frank extend to an individual who has not reported a violation of the securities laws to the SEC and therefore falls outside the Act’s definition of “whistleblower”?
We answer that question “No”: To sue under Dodd-Frank’s anti-retaliation provision, a person must first “provid[e] . . . information relating to a violation of the securities laws to the Commission.” §78u–6(a)(6).
Digital Realty Trust, Inc. v. Somers, S. Ct. Case No. 16-1276 (Feb. 21, 2018). Because the SEC's rule contradicts the statute, the Supreme Court accorded it no deference under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984).
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