Business Law—Second Circuit Extends the Dodd-Frank Act’s Anti- Retaliation Protection to Internal Whistleblowers—Berman v. Neo@Ogilvy LLC, 801 F.3d 145 (2d Cir. 2015).

The Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd- Frank Act) reformed federal financial regulation in response to the Great Recession.  The Dodd-Frank Act includes incentives and protections for whistleblowers who report violations of federal securities laws.  In Berman v. Neo@Ogilvy LLC, the Court of Appeals for the Second Circuit considered whether the anti-retaliation provisions of the Dodd-Frank Act protect a whistleblower who does not report violations to the Securities and Exchange Commission (SEC).  The court held that the statute is sufficiently ambiguous so as to warrant deference under Chevron U.S.A., Inc. v. National Resource Defense Council, Inc. to SEC regulations, which extend protection to internal whistleblowers who merely report violations within their organization.  The court’s decision split from the Fifth Circuit—the only other circuit court of appeals that has addressed this issue and deemed that the statute unambiguously required whistleblowers to report to the SEC.