An Employee May Be A Whistleblower for Purposes Of Dodd-Frank’s Anti-Retaliation Provisions, Even If He Or She Is Not A Whistleblower For Purposes Of Dodd-Frank’s Bounty Provisions
Under the “bounty” provision, a whistleblower who provides “original information” to the SEC is entitled to an award of portions of money recovered by the SEC. See 15 U.S.C. § 78u–6(b). As explained above, the statute defines “original information” in part as information “not known to the [SEC] from any other source.” 15 U.S.C. § 78u–6(a)(3)(B). And the SEC’s regulations provide that “original information” must be “[p]rovided to the [SEC] for the first time after July 21, 2010 (the date of enactment of the Dodd–Frank [Act] ).” 17 C.F.R. § 240.21F–4(b)(iv).
In one Dodd-Frank retaliation case, the defendants argued that the plaintiff was not covered by the law’s anti-retaliation provisions, because she did not provide “original information” to the SEC after the law’s enactment. In rejecting that argument, the court stated:
The language of Dodd-Frank’s anti-retaliation provision, however, does not require an individual to provide “original information.” The anti-retaliation provision uses only the unmodified term “information.” And there is nothing else in the statute to suggest that the anti-retaliation provision applies only to individuals who provide information that would make them eligible for an award. To the contrary, the SEC’s implementing regulations make clear that the “anti-retaliation protections apply whether or not you satisfy the requirements, procedures and conditions to qualify for an award.” 17 C.F.R. § 240.21F–2(b)(1)(iii). Thus, to the extent Defendants argue that Ott is not covered by the anti-retaliation provision because she did not provide “original information” to the SEC after Dodd–Frank’s enactment, the argument is without merit.
Ott v. Fred Alger Management, Inc., No. 11 Civ. 4418 LAP, 2012 WL 4767200, at *5 (S.D.N.Y. Sept. 27, 2012).
Hat tip: An outstanding article that covers the law and final regulations in comprehensive fashion is Dodd-Frank and the SEC Final Rule: From Protected Employee To Bounty Hunter, ST001 ALI-ABA 1487 (July 28-30, 2011), which was written by Littler Mendelson, P.C. lawyers John S. Adler, Edward T. Ellis, Barbara E. Hoey, Gregory C. Keating, Kevin M. Kraham, Amy E. Mendenhall, Kenneth R. O’Brian, and Carole F. Wilder. This post is partially derived from that article.