Luke I. Landers

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Under the current state of the law, the circuit courts are split over whether an employee must report corporate wrongdoing directly to the Securities and Exchange Commission (SEC), or report wrongdoing to a company’s management in order to receive whistleblower protection under Dodd–Frank. The resolution of this circuit split not only will have implications for American employees caught in situations similar to the fiction above, but also will provide a prime opportunity for the Supreme Court to clarify how courts are to understand the interpretive and deferential relationship between the language of legislative statutes and their corresponding bureaucratic regulations. In Berman v. Neo@Ogilvy LLC, the Second Circuit ruled that a “whistleblower” is not required to report corporate “wrongdoing” to the SEC to be covered under the “anti-retaliation protection” provided by the Dodd–Frank Act. The Second Circuit’s ruling in Berman created a circuit split with the Fifth Circuit’s decision in Asadi v. G.E. Energy U.S., L.L.C., which held that a “whistleblower” was required to report misconduct to the SEC to receive Dodd–Frank protections. The main difference between these two decisions is how each circuit deciphered different definitions of a whistleblower based on differing statutory interpretations of the relationship between the Dodd–Frank Act and the corresponding SEC regulations. The goal of this Comment is to conduct a thorough analysis of this recent circuit split and examine the implications regarding its pending reconciliation.

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