Inside or Out?: The Dodd-Frank Whistleblower Program’s Antiretaliation Protections for Internal Reporting
Volume 86, No. 4, Summer 2014
By Jennifer M. Pacella [PDF]

On July 17, 2013, the first federal court of appeals to have addressed the antiretaliation protections available to whistleblowers under the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank) strayed from a string of judicial victories that had been mounting for employee-whistleblowers. In Asadi v. G.E. Energy (USA), L.L.C., the Fifth Circuit deviated from the holdings of several federal district courts that have interpreted the scope of Dodd-Frank’s antiretaliation provisions to broadly protect whistleblowers. Ever since Dodd-Frank’s enactment in 2010, courts have struggled to interpret whether the statute’s antiretaliation protections are available for internal whistleblowers, or those who internally report violations of the securities laws to their employers, rather than directly to the Securities and Exchange Commission (SEC or the Commission). Confusion as to the scope of Dodd-Frank’s protections has arisen due to an inconsistency in the language of the statute with respect to how the term, “whistleblower,” is defined, which, on its face, appears to exclude internal whistleblowers. The various district courts to have addressed this issue prior to Asadi have each sided with the whistleblower, often granting Chevron deference to a 2011 SEC rule that reconciles the statute’s inconsistency by clarifying that Dodd-Frank’s antiretaliation protections are available to internal and external whistleblowers alike. The decision in Asadi stands in stark contrast to these decisions and the SEC’s interpretation of the statute. This Article explores the Fifth Circuit’s decision in Asadi, as well as the district court opinions that have interpreted this issue, and argues that Asadi sets a disappointing precedent. Not only will the Fifth Circuit’s decision potentially affect how other circuit courts will address this issue in the future, it also compromises the importance of internal compliance programs, which offer employees an outlet for reporting possible securities violations within their organizations so that companies can respond to problems in a timely manner. Weakened protection against retaliation for internal whistleblowers will likely have the effect of creating disincentives for employees to report internally. This Article examines the importance of internal compliance programs as a preventative measure against major securities violations and considers the effect that strong antiretaliation protections have on the promotion of internal reporting. As Dodd-Frank is still in its relatively early stages, it is probable that the Fifth Circuit’s decision in Asadi will either give rise to a circuit split or prompt the Supreme Court to address this important issue.