Gregoricus: Whistleblowing From The Bench

Whistleblowing from the Bench
ZACHARY J. GREGORICUS*
ABSTRACT
With the enactment of the Dodd-Frank Wall Street Reform and Consumer
Protection Act, Congress intended to strike down fraud on Wall Street,
provide American investors and taxpayers with an equal playing field in
the capital markets, and significantly increase the efficiency and
effectiveness of financial regulatory agencieswith specific emphasis on
the Securities and Exchange Commission. The comprehensive
whistleblower program and the establishment of the Office of the
Whistleblower were Dodd-Franks most significant reformations, allowing
Congress and the Securities and Exchange Commission to fulfill its goal of
ending fraud and illegality on Wall Street. The program provided the
Securities and Exchange Commission with its most powerful and effective
weapon in its battle against corruption and greeda reliable
whistleblowing insider. The program also incentivized whistleblowers to
provide information to the SEC by providing them with protection from
retaliation by their employers. However, in recent years, the whistleblower
program and its purported purpose, as well as the firmly established rules
of statutory interpretation, have come under attack from the courts and the
Securities and Exchange Commission itself. Courts and the Securities and
Exchange Commission have interpreted the anti-retaliation provision in a
manner allowing faux-whistleblowers to report violations internally
thereby serving no compelling public interestwhile still receiving the
protections of the provision. By forming erroneous interpretations not
based on any language in the statute, both the courts and the Securities and
Exchange Commission have defeated the purpose of the whistleblower and
anti-retaliation provisionsto report violations of securities laws to the
Securities and Exchange Commission and punish those violators. The
* J.D. Candidate, 2017. B.S., cum laude, Finance, Bentley University (2014). I would like to
thank my parents, Michael and Bernadette, for their unwavering love and constant support
throughout my education. I would also like to acknowledge the Editors and Associates of the
New England Law Review for all of their efforts in the publishing of this Note.
155
156 New England Law Review Vol. 51|1
courts interpretations have also led to a split between the courts of

appealsthe Fifth Circuit has held that whistleblowers must report the
violations to the Securities and Exchange Commission to receive
protections of the anti-retaliation provision, while the Second Circuit only
requires that an individual report the violations internally to receive the
protections. The issue is also currently on appeal in the Ninth Circuit.
Ultimately, the only way to restore the original language of the
whistleblower and anti-retaliation provisions, thus providing the Securities
and Exchange Commission with necessary tools to protect American
investors, is for the Supreme Court to grant certiorari, and rule in favor of
the clear and unambiguous language of the statute. Until then, the
whistleblower and anti-retaliation provisions, as well as the fight against
corporate fraud, greed, and illegality, remains in limbo.
INTRODUCTION
We have stated time and again that courts must presume that a legislature says in
a statute what it means and means in a statute what it says there. When the words
of a statute are unambiguous, then, this first canon is also the last: judicial
inquiry is complete.1
T
he story has been told over and over againliterally.2 Lehman
Brothers.3 Bear Stearns.4 Subprime mortgages, mortgage-backed
securities, and collateralized debt obligations.5 The United States
1 Conn. Natl Bank v. Germain, 503 U.S. 249, 25354 (1992) (quoting Rubin v. United States,
449 U.S. 424, 430 (1981)).
2 See generally MICHAEL LEWIS, THE BIG SHORT: INSIDE THE DOOMSDAY MACHINE (2010); THE
BIG SHORT (Paramount Pictures 2015) (depicting the story of four outsiders who challenged
the greed and lack of foresight of modern banking in the mid-2000s).
3 See generally Andrew Ross Sorkin, Lehman Files for Bankruptcy; Merrill is Sold, N.Y. TIMES
(Sept. 14, 2008), http://www.nytimes.com/2008/09/15/business/15lehman.html [https://

perma.cc/TJH6-F39E] (detailing the timeline of Lehman Brothers bankruptcy).
4 See generally Kate Kelly, Inside the Fall of Bear Stearns, WALL ST. J. (May 9, 2009, 11:59 PM),
http://www.wsj.com/articles/SB124182740622102431 [https://perma.cc/6BXQ-327T] (examining

the factors leading to the collapse of Bear Stearns).
5 See generally STEPHEN J. CHOI & A. C. PRITCHARD, SECURITIES REGULATION 4143 (3d ed.
2012) (Underlying the Financial Crisis were mortgage-backed securities based on subprime
mortgages . . . Rather than hold onto subprime mortgages, mortgage originators, with the
assistance of Wall Street investment banks, engaged in securitization.).
2017 Whistleblowing from the Bench 157
largest economic crisis since the Great Depression.6 The most

comprehensive financial regulatory statute enacted since the Securities Act
of 1933 and the Securities Exchange Act of 1934.7
With the enactment of the Dodd-Frank Wall Street Reform and
Consumer Protection Act, Congress intended to eliminate fraud on Wall
Street, protect investors and taxpayers from financial hippodroming, and
significantly increase the efficiency and effectiveness of financial regulatory
agencieswith specific emphasis on the Securities and Exchange
Commission (SEC).8 The bill contained the Private Fund Investment
Advisors Registration Act of 2010, affecting the registration requirements
of private equity firms and hedge funds;9 the Volcker Rule, preventing
with few exceptionscommercial banks from engaging in proprietary
trading;10 and established the Financial Stability Oversight Council to
identify systemic economic risks and respond accordingly.11 However, the
enactment of a comprehensive whistleblower program and the
establishment of the Office of the Whistleblower were the most significant
reformations, allowing Congress to meet its goal of ending fraud and
illegality on Wall Street and in public corporations throughout America.12
This program created the most effective weapon in the SECs arsenal for
fighting corporate fraud and greeda whistleblowing insider.13
However, not all good things last forever.14 The whistleblower
program and its purported purpose, as well as the firmly established rules
6 Barack Obama, Remarks by the President on the Economy in Osawatomie, Kansas (Dec.
6, 2011).
7 See Andrew Walker, Note, Why Shouldnt We Protect Internal Whistleblowers? Exploring
Justifications for the Asadi Decision, 90 N.Y.U. L. REV. 1761, 1763 (2015).
8 See 156 CONG. REC. E1650-01 (daily ed. Sept. 15, 2010) (statement of Rep. Barney Frank).
9 See generally Seth Chertok, A Detailed Analysis of Title IV of the Dodd-Frank Wall Street
Reform and Consumer Protection Act, 6 VA. L. & BUS. REV. 1, 35 (2011) (explaining the impact of
the Private Fund Investment Advisors Registration Act of 2010 on the financial regulatory
environment).
10 See generally Shay Raoofi, The Volcker Rule: A Regulatory Vice Under the Guise of Consumer
Protection, 26 LOY. CONSUMER L. REV. 301, 30205 (2014) (providing a brief overview of the
Volcker Rule).
11 See generally Joel Seligman, Key Implications of the Dodd-Frank Act for Independent
Regulatory Agencies, 89 WASH. U. L. REV. 1, 813 (2011) (describing the duties of the Financial
Stability Oversight Council).
12 See Richard Moberly, Sarbanes-Oxleys Whistleblower Provisions: Ten Years Later, 64 S.C. L.
REV. 1, 4550 (2012) (describing Dodd-Franks whistleblower protection provision and its
potential impact on the corporate environment).
13 See Gideon Mark, Confidential Witnesses in Securities Litigation, 36 J. CORP. L. 551, 586
(2011).
14 See Berman v. Neo@Ogilvy LLC, 801 F.3d 145, 155 (2d Cir. 2015); SEC, INTERPRETATION
OF THE SECS WHISTLEBLOWER RULES UNDER SECTION 21F OF THE SECURITIES EXCHANGE ACT OF
of statutory interpretation, are under attack by the courts and the SEC
itself.15 The courts, seemingly eager to see which can overstep its
constitutional limits the furthest, have rewritten Congresss statutes and
offered the incentives of the whistleblower program to non-
whistleblowers.16 The SEC, entrusted by Congress to utilize tips from
whistleblowers to protect American investors from corporate fraud, has
forgotten its purposelikely due to underfunding and the standard
government nonchalance.17 The agency has encouraged individuals to
report potential securities violations internally, while still allowing the
faux-whistleblowers to reap the benefits of the program.18 Furthermore,
Congress, through its legislative power, has actively fought to repeal
Dodd-Frank and decrease the SECs budget.19 Ultimately, both the courts
and the SEC are effectively defeating the entire purpose of the
whistleblower and anti-retaliation provisionsto report violations of the
securities laws to the SEC and punish those violators.20
This Note argues that the courts and the SECs interpretations of Dodd-
Franks whistleblower and anti-retaliation provisions are inconsistent with
both the clear and unambiguous language and the purpose of the statute. It
also argues that any extension of the provisions constitutes judicial
policymaking, creating a radical departure from our democratic
system.21 Part I provides a background of Dodd-Franks whistleblower
and anti-retaliation provisions, including several interpretations of the
provisions by the courts of appeals and the SEC. Part I also overviews the
Supreme Courts Chevron doctrine and its guidelines for statutory
interpretation. Part II highlights the significant issues with the courts and
the SECs interpretations of the provisions. Part III utilizes the Supreme
1934 68 (2015), https://www.sec.gov/rules/interp/2015/34-75592.pdf [https://perma.cc/8J9L-

YXXU] [hereinafter SEC INTERPRETATION].
15 See Berman, 801 F.3d at 155; SEC INTERPRETATION, supra note 14.
16 See, e.g., Berman, 801 F.3d at 155; Yang v. Navigators Grp., Inc., 18 F. Supp. 3d 519, 53334
(S.D.N.Y. 2014); Khazin v. TD Ameritrade Holding Corp., No.134149 (SDW)(MCA), 2014 WL

940703, at *36 (D.N.J. Mar. 11, 2014); Azim v. Tortoise Capital Advisors, LLC, No. 132267
KHV, 2014 WL 707235, at *23 (D. Kan. Feb. 24, 2014); Ellington v. Giacoumakis, 977 F. Supp.
2d 42, 4446 (D. Mass. 2013); Nollner v. S. Baptist Convention, Inc., 852 F. Supp. 2d 986, 995
(M.D. Tenn. 2012).
17 See discussion infra Part IV.A.
18 See 17 C.F.R. 240.21F-2(b) (2011); see also Brief of the Securities and Exchange
Commission, Amicus Curiae in Support of the Appellant, at *1317, Berman v. Neo@Ogilvy
LLC, 801 F.3d 145 (2d Cir. 2015) (No. 14-4626), 2015 WL 636112; SEC INTERPRETATION, supra
note 14, at 8.
19 See infra Part IV.A.
20 See infra Part IV.A.
21 See ANTONIN SCALIA & BRYAN A. GARNER, READING LAW 83 (2012).
Courts guidelines for statutory interpretation, and examines the clear and
unambiguous language of the whistleblower and anti-retaliation
provisions. Part IV details the failures of Congress and the SEC to fulfill the
purported purpose of Dodd-Franks whistleblower and anti-retaliation
provisions. Part IV also argues that any courts conclusion that is
inconsistent with Congress clear and unambiguous statutory language
oversteps the courts constitutional boundaries, and constitutes legislating
from the bench.
I. Background
A. A Brief Overview of the Whistleblower and Anti-retaliation

Provisions of the Dodd-Frank Act
Section 922 of the Dodd-Frank Act amended the Securities Exchange

Act of 1934 and established a comprehensive corporate whistleblower
program.22 The program incentivizes whistleblowers to report securities
law violations to the SEC by providing for a whistleblower to receive up to
30% of the monetary penalties collected by the SEC if the whistleblowers
original information23 leads to a successful enforcement action larger than
$1 million.24 As a result, since the creation of the program in 2011, the SEC
has received a 30% increase in outside tips and has paid more than $54
million to whistleblowers whose information led to successful enforcement
actions.25 Section 922 also includes an anti-retaliation provision, providing
whistleblowers with a cause of action against employers who terminate or
otherwise discriminate against them for reporting violations of the
securities laws.26 However, the courts of appeals, as well as the SEC, have
split as to who qualifies as a whistleblower for purposes of protection
under the provision.27
22 Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111-203,
922, 124 Stat. 184149 (2010).

23 Information provided by the whistleblower constitutes original information when: (1)
the information is derived from the whistleblowers independent knowledge or analysis; (2)
the information is not already known to the SEC from any other source; and (3) the
information is not exclusively derived from an allegation made in a judicial or administrative
hearing, in a governmental report, hearing, audit or investigation, or from the news media.
17 C.F.R. 240.21F-4(b) (2011).
24
15 U.S.C. 78u-6(b)(1) (2012).
25
SEC, 2015 ANNUAL REPORT TO CONGRESS ON THE DODD-FRANK WHISTLEBLOWER
PROGRAM 1 (2015), http://www.sec.gov/whistleblower/reportspubs/annual-reports/
owb-annual-report-2015.pdf [https://perma.cc/ES9F-364Q].
26 15 U.S.C. 78u-6(h)(1) (2012).
27 Compare Asadi v. G.E. Energy (USA), L.L.C., 720 F.3d 620, 623 (5th Cir. 2013) (holding
that a cause of action under the anti-retaliation provision requires disclosure of the underlying
1. The Statutory Definition of a Whistleblower
Section 78u-6(a), the first subsection of the whistleblower provision, is

the definitional section.28 This subsection states that the following
definitions shall apply to the entire whistleblower provision.29 The
subsection defines whistleblower as any individual who provides, or 2 or
more individuals acting jointly who provide, information relating to a
violation of the securities laws to the Commission, in a manner established,
by rule or regulation, by the Commission.30 Therefore, under the statutory
language of the subsection, a whistleblower must: (1) be a natural person
or persons; (2) who provides information relating to a violation of the
securities laws; (3) to the SEC; (4) in a manner established by the SEC.31
2. The Anti-retaliation Provision
Section 78u-6(h)(1) provides whistleblowers with protection against

retaliation from their employers, creating a cause of action for
whistleblowers if they are discharged or otherwise discriminated against
for a variety of actions.32 The provision states:
No employer may discharge, demote, suspend, threaten,

harass, directly or indirectly, or in any other manner
discriminate against, a whistleblower in the terms and
conditions of employment because of any lawful act done
by the whistleblower(i) in providing information to the
Commission in accordance with this section; (ii) in
initiating, testifying in, or assisting in any investigation or
judicial or administrative action of the Commission
based upon or related to such information; or (iii) in
making disclosures that are required or protected under
the Sarbanes-Oxley Act of 2002 (15 U.S.C. 7201 et seq.), this
chapter, including section 78j1(m) of this title, section
1513(e) of Title 18, United States Code, and any other law,
violation to the SEC), with Berman v. Neo@Ogilvy LLC, 801 F.3d 145, 155 (2d Cir. 2015)
(holding that the plaintiff was entitled to protection under the anti-retaliation provision, even
though he had only reported the alleged violation internally).
28 15 U.S.C. 78u-6(a) (2012).
29 Id.
30 Id. 78u-6(a)(6).
31 See id. (emphasis added).

32 Id. 78u-6(h)(1) (2012). See generally Jeff Vogt, Note, Dont Tell Your Boss? Blowing the
Whistle on the Fifth Circuits Elimination of Anti-Retaliation Protection for Internal Whistleblowers
Under Dodd-Frank, 67 OKLA. L. REV. 353, 357 (2015) (describing the extensive protections
granted to whistleblowers by Dodd-Franks anti-retaliation provision).
rule, or regulation subject to the jurisdiction of the

Commission.33
While the plain language of the provision seems straightforward

employers may not retaliate against whistleblowers for the enumerated
actscourts struggle over who may bring an action under the anti-
retaliation provision, namely with regard to whether the whistleblower
must report the violation to the SEC or only internally to his or her
employer.34 The question has been posed to both the Second and Fifth
Circuits.35 The courts reached opposite conclusions, thus creating a split
amongst the circuits.36
B. A Travelers Guide to Statutory Interpretation
In Chevron, U.S.A., Incorporated v. Natural Resource Defense Council,

Incorporated, the Supreme Court laid out a two-part test to determine
whether a court should defer to an agencys construction of a statute.37 The
first question a court must ask is whether the intent of Congress is clear
and unambiguous.38 In answering that question, the court must apply the
ordinary tools of statutory construction.39 In determining whether the
language is plain and unambiguous, the court must read the words in
their context and with a view to their place in the overall statutory
scheme.40 If the intent of Congress is clear, the court and the agency
must give effect to the unambiguously expressed intent of Congress.41
Most importantly, it is improper for the court to conclude what Congress
omitted from the statute is nevertheless within its scope.42
If the court finds the language of the statute to be ambiguous, it must
then determine whether the agencys interpretation is based on a
permissible construction of the statute.43 The Supreme Court has found
33 78u-6(h)(1)(A).
34 Janna Mouret, Comment, Shelter from the Retaliation Storm, 52 HOUS. L. REV. 1529, 1530
(2015).
35 Berman v. Neo@Ogilvy LLC, 801 F.3d 145, 147, 153 (2d Cir. 2015); Asadi v. G.E. Energy
(USA), L.L.C., 720 F.3d 620, 622 (5th Cir. 2013).
36 Walker, supra note 7, at 176970.
37 Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842 (1984).
38 Id. at 84243.
39 City of Arlington v. FCC, 133 S. Ct. 1863, 1868 (2013).

40 King v. Burwell, 135 S. Ct. 2480, 2489 (2015) (quoting FDA v. Brown & Williamson
Tobacco Corp., 529 U.S. 120, 133 (2000)).

41 Chevron, 467 U.S. at 84243.
42 Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2528 (2013).
43 Chevron, 467 U.S. at 84243.
this to mean that the agencys interpretation of the statute must be

reasonable.44 The agencys interpretation must account for both the
specific context in which . . . language is used and the broader context of
the statute as a whole.45 If an agencys interpretation of the statute is
inconsistent with the statute as a whole, it is not entitled to deference from
the court.46
1. Statutory Interpretation at its Finest
In Barnhart v. Sigmon Coal Company, the Supreme Court applied

Chevrons two-step analysis and determined that the Coal Industry Retiree
Health Benefit Act of 1992 (the Coal Act) was clear and unambiguous.47
Therefore, the Court held that the Commissioner of Social Securitys
interpretation of the statute was not entitled to Chevron deference.48
In Barnhart, the defendant, the Commissioner of Social Security, acting
under 9706(a) of the Coal Act,49 assigned premium responsibility for over
100 retired miners to the plaintiff.50 However, 9706(a) of the Coal Act
states that the Commissioner may only assign a retiree to a signatory
operator or a related person to a signatory operator of an existing pension
plan.51 The defendant assigned the retirees based on his belief that the
plaintiff was a successor-in-interest to a defunct mining company, and
therefore was a related person52 to the company, a signatory operator, as
required by the statute.53 As a result of the assignment, the plaintiff
brought suit, challenging the defendants interpretation of the Coal Act.54
The Court focused its analysis on the language of the definitional
section of the Coal Act to determine whether it was plain and
44 See Util. Air Regulatory Grp. v. EPA, 134 S. Ct. 2427, 2442 (2014).
45 Id. (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997)).
46 Id.
47 Barnhart v. Sigmon Coal Co., 534 U.S. 438, 46163 (2002).
48Id.
49See generally 26 U.S.C. 9706(a) (2012) (dictating that it is the Commissioner of Social
Securitys duty to assign each coal industry retiree to a coal signatory operator).
50 Barnhart, 534 U.S. at 44748.
51 9706(a).
52 A person is a related person to a signatory operator for the purposes of 9706(a) if: (1) it
is a member of the controlled group of corporations with the signatory operator; (2) it is a
trade or business which is under common control with the signatory operator; (3) it is
involved in a partnership or joint venture with the signatory operator; or (4) it is a successor-
in-interest of any person described in the first three clauses. 9701(c)(2). More importantly,
the definition of related person appears in the Coal Acts definitional section. Id. 9701.
53 Barnhart, 534 U.S. at 448.
54 Id. at 44849.
unambiguous.55 The Court found that the plaintiff was not a signatory
operator to any coal wage agreement, and did not fall within any of the
three specified categories defining a related person.56 This was because
the plaintiff was not a member of a controlled group of corporations with a
signatory operator, a business under common control with the signatory
operator, or involved in a partnership or joint venture with the signatory
operator.57 Regarding the fourth category, the Court stated that although
the plaintiff was a successor-in-interest to the defunct company, the statute
did not apply because the defunct company did not fall into any of the first
three categories.58 Therefore, because the plaintiff was not a related person
to a signatory operator, the defendant could not assign the retirees to the
plaintiff without violating the statute.59 Further, the Court denied several of
the defendants arguments regarding his interpretation of the statute,
finding that the statute was clear and unambiguous.60 Therefore, the Court
concluded that Chevron deference was unnecessary.61
C. The Good: Asadi v. G.E. Energy (USA), L.L.C.
In Asadi, the plaintiff disclosed to his supervisor and the defendant-

corporations ombudsperson that its overseas conduct may have violated
the Foreign Corrupt Practices Act.62 Soon after the disclosure, the
defendant terminated the plaintiffs employment.63 The plaintiff then filed
suit against the defendant alleging a violation of Dodd-Franks anti-
retaliation provision.64 While the district court held that the anti-retaliation
provision did not extend extraterritorially,65 the Fifth Circuit reviewed the
decision de novo to determine whether the plaintiff qualified as a
whistleblower under the anti-retaliation provision.66
55 Id. at 45051.
56 Id. at 452.
57
Id.
58 Id.; see 26 U.S.C. 9701(c)(2) (2012) (A related person shall also include a successor-in-
interest of any person described in clause (i), (ii), or (iii).).

59 Barnhart, 534 U.S. at 454.
60 See id. at 45462 (We will not alter the text in order to satisfy policy preferences of the
Commissioner.).
61 Id. at 462.
62 Asadi v. G.E. Energy (USA), L.L.C., 720 F.3d 620, 621 (5th Cir. 2013).
63 Id.
64 Id.
65 Asadi v. G.E. Energy (USA), L.L.C., No. 4:12435, 2012 WL 2522599, at *7 (S.D. Tex. June
28, 2012).
66 See Asadi, 720 F.3d at 62223.
The Fifth Circuits analysis focused on the construction of the statute,

dissecting the connection between the definition of whistleblower and the
anti-retaliation provision.67 While the plaintiffs interpretation of the statute
allowed him to be considered a whistleblower under 78u-6(h)(1)(A)(iii),
even though he did not provide the information to the SEC,68 the Court
believed the statute was straightforward and unambiguous.69 The Court
found that 78u-6(a)(6), the definitional section, established the only
category of whistleblowersindividuals who provide information
relating to a securities law violation to the SECwhile 78u-6(h)(1)(A),
the anti-retaliation provision, described the protected acts of
whistleblowers.70 Therefore, there was no conflict between the definition of
whistleblower and the third category of protected activitiesdisclosure
required and protected by the Sarbanes-Oxley Act, the Securities Exchange
Act, or any other law or rule subject to the jurisdiction of the SEC.71 Most
importantly, the Court found that, because the anti-retaliation provision
began with the statement that [n]o employer may discharge . . . a
whistleblower . . . because of any lawful act done by the whistleblower,
Congress intended to use the definition of whistleblower throughout the
anti-retaliation provision.72 Furthermore, the Courts construction of the
statute did not make the third category of protected activity unnecessary,
as it still protected individuals who were required to internally report
certain activities, so long as they reported the violation to the SEC prior to
their termination.73 Finally, the Court declined to defer to the SECs
expansive whistleblower definition for the purposes of the anti-retaliation
provision,74 as Congress has directly addressed the precise question at
issue, and thus, there was no room for the SEC to impose its own answer
to the question.75 Ultimately, the Fifth Circuit dismissed the plaintiffs
complaint, holding that the anti-retaliation provision does not provide
67 Jennifer M. Pacella, Inside or Out? The Dodd Frank Whistleblower Programs Antiretaliation
Protections for Internal Reporting, 86 TEMP. L. REV. 721, 743 (2014).

68 Asadi, 720 F.3d at 624.
69 Id. at 62528.
70 Id.; see also Naseem Faqihi, Note, Choosing Which Rule to Break First: An In-House Attorney
Whistleblowers Choices After Discovering a Possible Federal Securities Law Violation, 82 FORDHAM
L. REV. 3341, 3366 (2014).
71 Asadi, 720 F.3d at 626.
72 Id. at 62627.
73 See id.
74 For the purposes of the anti-retaliation provision, the SEC does not require a
whistleblower to report the potential violation to the Commission. See discussion infra Part I.E.
75 Asadi, 720 F.3d at 62930 (quoting Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467
U.S. 837, 84244 (1984)).

protection to individuals who do not report the potential securities law

violation to the SEC.76
D. The Bad: Berman v. Neo@Ogilvy LLC
In Berman, the plaintiff alleged a violation of the anti-retaliation

provision after he reported potential violations of the generally accepted
accounting principles, Sarbanes-Oxley, and Dodd-Frank to his employer.77
The plaintiff was fired six months after reporting the potential violations to
his employer but did not report them to the SEC until after his
termination.78 Thus, the Second Circuit faced a similar issue addressed by
the Fifth Circuit in Asadiwhether an employee who suffers retaliation
because he reports wrongdoing internally, but not to the SEC, can obtain
retaliation remedies provided by Dodd-Frank.79
While the majority framed the argument as one of statutory
interpretation, they found no conflict between the definition of
whistleblower and the anti-retaliation provision.80 Furthermore, the
majoritys language gives the impression that the statute, taken as a whole,
was clear and unambiguous.81 However, relying on the Supreme Courts
decision in King v. Burwell,82 the Second Circuit found that this plain and
unambiguous interpretation would leave subsection (iii) of the anti-
retaliation provision with an extremely limited scope . . . .83 The Court
stated that a limited scope would create a fewer number of whistleblowers
76 E.g., id. at 630; Verble v. Morgan Stanley Smith Barney, LLC, No.: 3:15-CV-74-TAV-CCS,
2015 WL 8328561, at *5 (E.D. Tenn. Dec. 8, 2015); Verfuerth v. Orion Energy Sys., Inc., 65 F.
Supp. 3d 640, 64346 (E.D. Wis. 2014); Banko v. Apple Inc., 20 F. Supp. 3d 749, 75657 (N.D.
Cal. 2013).
77 Berman v. Neo@Ogilvy LLC, 801 F.3d 145, 14749 (2d Cir. 2015).
78 Id.
79 Id. at 147.
80 See id. at 149 n.2 (We start by posing the issue as one of statutory construction . . . .).
But see id. at 150 (There is no absolute conflict between the Commission notification
requirement in the definition of whistleblower and the absence of such a requirement in both
subdivision (iii) of subsection 21F(h)(1)(A) of Dodd-Frank and the Sarbanes-Oxley provisions
incorporated by subdivision (iii).).
81 See id. at 15051 (An employee who suffers retaliation after reporting wrongdoing
simultaneously to his employer and to the SEC is eligible for Dodd-Frank remedies and those
provided by Sarbanes-Oxley. Subdivision (iii) assures him the latter remedies, and his
simultaneous report to the SEC assures him that he will not have excluded himself from
Dodd-Frank remedies.).
82 Michael M. Krauss et al., For Whom the Whistle Blows: The Role of Private Enforcement in
Dodd-Franks Regulatory Framework, 8 U. ST. THOMAS J.L. & PUB. POLY 194, 217 (2014).
83 Berman, 801 F.3d at 151.
and would not provide auditors and attorneys with the anti-retaliation
protections of the Dodd-Frank Act.84
Because of this limited scope, the Court attempted to look at
Congresss intent in drafting the statute, but could find no legislative
history surrounding the anti-retaliation provision and subsection (iii).85
After chiding Congress,86 the Court determined it would read the statute
broadly to carry out its purpose and gave deference to the SECs broad
interpretation of the anti-retaliation provision.87 Therefore, the Court held
that the plaintiff was entitled to pursue Dodd-Frank remedies for alleged
retaliation after his report of wrongdoing to his employer, despite not
having reported to the Commission before his termination.88
E. The Ugly: The SEC Chimes In
Shortly after Congress enacted the Dodd-Frank Act, the SEC

promulgated a series of rules related to the Office of the Whistleblower and
the whistleblower provision of the Act.89 One of the rules, Rule 21F-2(b),
provides an alternative, broader definition of whistleblower with regards
to the anti-retaliation provision of the Act, and states that:
For the purposes of the anti-retaliation protections . . . you are a
whistleblower if: (i) You possess a reasonable belief that the
information you are providing relates to a possible securities law
violation . . . and; (ii) You provide that information in a manner
described in Section 21F(h)(1)(A) of the Exchange Act (15 U.S.C.
78u6(h)(1)(A)).90
84 Id. at 15152.
85 Id. at 152. But see Asadi v. G.E. Energy (USA), L.L.C., 720 F.3d 620, 626 n.9 (5th Cir. 2013)
(finding that there was legislative history regarding the whistleblower and anti-retaliation
provisions).
86 See Berman, 801 F.3d at 154 ([I]t is not at all surprising that no one noticed that the new
subdivision and the definition of whistleblower do not fit neatly together.).

87 See Kathryn Hastings, Comment, Keeping Whistleblowers Quiet: Addressing Employer
Agreements to Discourage Whistleblowing, 90 TUL. L. REV. 495, 515 (2015) (Shortly after the SEC
released it guidance, the divided United States Court of Appeals for the Second Circuit
applied the SECs interpretation of Rule 21F, after finding the statute sufficiently ambiguous
to warrant such deference.).
88 Berman, 801 F.3d at 155.
89 See generally Joe Palazzolo, SEC Whistleblower Office: Open Friday, WALL ST. J.:
CORRUPTION CURRENTS (Aug. 11, 2011, 5:08 PM), http://blogs.wsj.com/corruption-

currents/2011/08/11/sec-whistleblower-office-open-friday/ [https://perma.cc/VXQ8-84YX]
(detailing the lead up to the opening of the Office of the Whistleblower and promulgation of
the whistleblower rules).
90 17 C.F.R. 240.21F-2(b) (2011).
Furthermore, the rule states that [t]he anti-retaliation protections

apply whether or not you satisfy the requirements, procedures and
condition to qualify for an award.91
In 2015, due to conflicting opinions by the courts, the SEC issued a
further interpretation of the Act and its rules.92 In pertinent part, the agency
stated that [a]n individual qualifies as a whistleblower entitled to the
employment retaliation protection whenever he or she makes any of the
broader array of disclosures specified in Section 21F(h)(1)(A).93 Therefore,
an individual is not required to report the potential violation to the SEC to
receive the protections of the anti-retaliation provision.94 Furthermore, the
SEC determined that this interpretation of the anti-retaliation provision
would best serve the purpose of its rules, as it provides protection to all
whistleblowers, thus creating an important incentive for these individuals
to report potential violations.95 Ultimately, to meet this purpose, the SEC
adopted an expansive interpretation of the anti-retaliation provision
broader than anything Congress could have intended.96
F. The Supreme Courts Dicta
In Lawson v. FMR LLC, the Supreme Court took on the issue of whether
Sarbanes-Oxleys anti-retaliation provision covered employees of
contractors and subcontractors to a public company who reported the
companys securities law violations to their employers.97 One of the
91 Id. 240.21F-2(b)(iii).
92 See generally Jason M. Halper, Renee B. Phillips & Hannah M. Junkerman, Orrick
Discusses SECs Guidance Supporting its Position that Internal Whistleblowers are Protected Under
Dodd-Frank, THE COLUM. L. SCH. BLUE SKY BLOG. (AUG. 20, 2015),
http://clsbluesky.law.columbia.edu/2015/08/20/orrick-discusses-secs-guidance-supporting-its-
position-that-internal-whistleblowers-are-protected-under-dodd-frank/
[https://perma.cc/B6M4-ZDNE] (explaining the history and reasoning behind the SECs
interpretation of the whistleblower and anti-retaliation provisions).
93 SEC INTERPRETATION, supra note 14, at 56.
94 See id. at 8 (stating that an individual may qualify as a whistleblower for purposes of the
anti-retaliation provision regardless of whether he or she adhered to Rule 21F-9(a)). Rule 21F-
9(a) requires an individual to submit potential securities law violations to the SEC online, by
mail, or by fax. 17 C.F.R. 240.21F-9(a) (2011).
95 See SEC INTERPRETATION, supra note 14, at 6.
96 See Mouret, supra note 34, at 1549 (The SEC, as well as a growing number of district
courts, takes a more purpose-driven and expansive approach by providing more protection
for employees who have been terminated for reporting internally.).
97 Lawson v. FMR LLC, 134 S. Ct. 1158, 116163 (2014). The relevant statutory provision
states that [n]o company . . . or any officer, employee, contractor, subcontractor, or agent of
such company . . . may discharge, demote, suspend, threaten, harass, or in any other manner
discriminate against an employee . . . because of any lawful act done by the employee (1) to
provide information . . . regarding any conduct which the employee reasonably believes
defendant-corporations main arguments was that the Dodd-Frank Acts

anti-retaliation provision increased protections for whistleblowers, and
therefore, Congress could not have intended for Sarbanes-Oxleys
provision to cover the situation at issue.98 In rejecting the defendants
argument, the majority shed light on the scope of Dodd-Franks anti-
retaliation provision.99 In pertinent part, the majority stated that Section
1514As protections include employees who provide information to any
person with supervisory authority over the employee. Dodd-Franks
whistleblower provision, however, focuses on reporting to federal
authorities.100 Additionally, the majority, likely in jest, stated that FMRs
apparent concern about extending protection comprehensively to
corporate whistleblowers was not shared by Congress when it drafted
Dodd-Franks anti-retaliation provision.101 Ultimately, although they were
dicta, the Supreme Courts statements in Lawson provide relevant guidance
in determining that Dodd-Franks anti-retaliation provision applies only to
individuals who report potential securities law violations to the SEC.102
II. The Interpretations of the Anti-retaliation Provision by the Courts

and the SEC Frustrate the Purpose of the Dodd-Frank Act and
Rewrite the Statute
A. The Interpretations of the Statute Frustrate its Purpose
The enactment of Dodd-Frank was the largest upheaval of the financial

regulatory system since the Securities Act of 1933 and the Securities
Exchange Act of 1934.103 The Act was meant to promote the financial
stability of the United States . . . to end too big to fail, to protect the
American taxpayer . . . [and] to protect consumers from abusive financial
constitutes a violation of . . . any rule or regulation of the Securities and Exchange

Commission, or any provision of Federal law relating to fraud against shareholders, when the
information or assistance is provided to . . . (C) a person with supervisory authority over the
employee . . . . 18 U.S.C. 1514A(a)(1)(C) (2012).
98 Lawson, 134 S. Ct. at 117374 (FMR urges that legislative events subsequent to Sarbanes-
Oxleys enactment show that Congress did not intend to extend 1541As protections to
contractor employees.).
99 See id. at 117475.
100 Id. at 1175.
101 Id.
102 See Evan H. Caminker, Precedent and Prediction: The Forward-Looking Aspects of Inferior
Court Decisionmaking, 73 TEX. L. REV. 1, 75 n.262 (1994) (quoting several cases which state the
importance of the Supreme Courts dicta).
103 Walker, supra note 7, at 1763.
services practices . . . .104 It struck fear into the hearts of Wall Street
banks,105 in large part due to the Office of the Whistleblower and the
heightened potential for litigation with the SEC.106 This was precisely the
intention of Congress when it drafted the Act and the whistleblower
provisionto create a more effective system to force corporate defendants
engaged in fraud into court.107 Furthermore, the SEC has seen the value of
the Office of the Whistleblower and the whistleblower provision, as the use
of a whistleblowers tips provides for high-quality information that allows
the Division [of Enforcement] to more quickly and efficiently detect and
investigate alleged violations of the law.108
Yet, both the courts and the SEC have been quick to directly contradict
the purported purpose of the Act and the whistleblower provision by
allowing an incentive for whistleblowersthe anti-retaliation provision
to morph into a cause of action for individuals who do nothing to further
the SECs fight against corporate fraud.109 Their interpretations serve no
compelling public interest, and do not deter corporate fraud in any way.110
The anti-retaliation provision is nothing more than a protection for
104 Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111-203, 124
Stat. 1376 (2010).

105 In 2014, Wall Street banks spent more than $1.2 billion lobbying against the Dodd-Frank
Act. Jonathan Weisman & Eric Lipton, In New Congress, Wall St. Pushes to Undermine Dodd-
Frank Reform, N.Y. TIMES (Jan. 13, 2015),
http://www.nytimes.com/2015/01/14/business/economy/in-new-congress-wall-st-pushes-to-
undermine-dodd-frank-reform.html?_r=0 [http://perma.cc/4YMV-ECPW]. For a complete list
of the largest contributors, see Steve Denning, With Dodd-Frank Rollback, The Big Bad Banks Are
Back, FORBES (Dec. 12, 2014, 10:46 AM), http://www.forbes.com/sites/stevedenning/
2014/12/12/with-dodd-frank-rollback-the-big-bad-banks-are-back/#47375031100f
[https://perma.cc/XM42-CDHR] (listing Wells Fargo, JPMorgan, and Citigroup as the largest
lobbyists against Dodd-Frank).
106 See John K. Lisman, Arbitration Agreement Arbitrage?: Statutory Discrepancy Leads to Third
Circuit Victory for Dodd-Frank Whistleblower Defendants in Khazin v. TD Ameritrade Holding

Corp., 60 VILL. L. REV. 753, 76365 (2015) (providing cases where corporate defendants
attempted to force whistleblowers into arbitration due to agreements in their employment
contracts).
107 Catherine Moore, The Effect of the Dodd-Frank Act on Arbitration Agreements: A Proposal for
Consumer Choice, 12 PEPP. DISP. RESOL. L.J. 503, 51920 (2012).

108 See SEC, FY 2016 CONGRESSIONAL JUSTIFICATION & FY 2014 ANNUAL PERFORMANCE
REPORT AND FY 2016 ANNUAL PERFORMANCE PLAN 61 (2015), https://www.sec.
gov/about/reports/secfy16congbudgjust.pdf. [https://perma.cc/EJM4-ZGEF].
109 See, e.g., Berman v. Neo@Ogilvy LLC, 801 F.3d 145, 155 (2d Cir. 2015); see also SEC
INTERPRETATION, supra note 14.

110 Cf. Jenny Mendelsohn, Calling the Boss or Calling the Press: A Comparison of British and
American Responses to Internal and External Whistleblowing, 8 WASH. U. GLOBAL STUD. L. REV.
723, 726 (2009) (stating that internally reporting wrongdoing does not further the public
interest of detection and enforcement).
whistleblowers that contribute to the financial regulatory system.111

Furthermore, if Congress had intended to provide additional anti-
retaliation protections to internal whistleblowers in the Dodd-Frank Act, it
would have done so, as it has done in the past.112 Ultimately, the
interpretations of the anti-retaliation provision by the courts and the SEC
frustrate the purpose of the Dodd-Frank Act and the whistleblower
provision.113
B. Courts Have Rewritten the Dodd-Frank Act by Interpreting the

Anti- retaliation Provision in an Inconsistent Manner
It is a canon of constitutional law that a court cannot rewrite a statute

to be what it is not,114 even if it believes the change will improve the
effects of the statute.115 Therefore, courts, as well as agencies, must give
effect to the unambiguously expressed intent of Congress.116 However,
even if the language of the statute is ambiguous, an agencys interpretation
must be reasonable in light of the purpose of the text.117 This reasoning and
analysis, developed by hundreds of Supreme Court cases, is well-
established.118 Despite this line of cases, the Second Circuit, as well as
several district courts, have put forth holdings directly contradicting the
Supreme Courts reasoning.119 As Justice Scalia stated in INS v. Cardoza-
Fonseca, those courts decisions are flatly inconsistent with this well-
established interpretation of the Chevron doctrine.120 Therefore, based on
several constructions of the anti-retaliation provision, courts have
interpreted the Dodd-Frank Act in an inconsistent manner with Congress
clear and unambiguous language, thereby functioning as a legislature.121
111Contra Samuel C. Leifer, Note, Protecting Whistleblower Protections in the Dodd-Frank Act,
113 MICH. L. REV. 121, 148 (2014) (Strong protections for internal reporting would allow and
encourage people with specialized knowledge or expertise to find potential violations, report
them, and subsequently remedy them quickly and effectively.).
112 See 18 U.S.C. 1514A (2012).
113 See supra text accompanying notes 10312.
114 Natl Fedn of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2651 (2012) (Scalia, J., Kennedy, J.,
Thomas, J., Alito, J., dissenting).

115 Badaracco v. Commissioner, 464 U.S. 386, 398 (1984).
116 Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 84243 (1984).
117 Id. at 843.
118 Paul Chaffin, Note, Expertise and Immigration Administration: When Does Chevron Apply to
BIA Interpretations of the INA?, 69 N.Y.U. ANN. SURV. AM. L. 503, 512 (2013).
119 E.g., Berman v. Neo@Ogilvy LLC, 801 F.3d 145, 155 (2d Cir. 2015); Yang v. Navigators
Grp., Inc., 18 F. Supp. 3d 519, 53334 (S.D.N.Y. 2014).

120 INS v. Cardoza-Fonseca, 480 U.S. 421, 454 (1987) (Scalia, J., concurring).
ANALYSIS
III. Dodd-Franks Anti-retaliation Provision Requires an Individual to

Report the Potential Securities Law Violation to the SEC
A. Dodd-Franks Language is Clear and Unambiguous
In Chevron, the Supreme Court unveiled a two-step framework for

judicial review of an administrative agencys interpretation of a statute
aptly nicknamed the Chevron two-step.122 Under Chevron, the first step in
determining whether a court should defer to an agencys interpretation of a
statute is to analyze whether the intent of Congress is clear and
unambiguous.123 The court, in its analysis, utilizes the ordinary tools of
statutory construction.124 If the court finds that the language of the statute
is ambiguous, it moves on to the second step, and determines whether the
administrative agencys interpretation of the statute is reasonable.125
However, if the language of the statute is unambiguous and Congress
intent is clear, the courts analysis ends, and deference is not extended to
the agencys interpretation.126 In the instant case, Congress has provided
the courts, as well as the SEC, with clear and unambiguous language
regarding the whistleblower and anti-retaliation provisions, which must be
accepted by the courts.127 Therefore, a courts analysis must stop there; it is
superfluous for the court to delve into the reasonableness of the SECs
interpretation of the provision.128
122 Kenneth A. Bamberger & Peter L. Strauss, Chevrons Two Steps, 95 VA. L. REV. 611, 611
(2009); see William N. Eskridge, Jr. & Lauren E. Baer, The Continuum of Deference: Supreme
Court Treatment of Agency Statutory Interpretations from Chevron to Hamdan, 96 GEO. L.J. 1083,
1095 (2008).
123 Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 84243 (1984); see
Thomas W. Merrill, Textualism and the Future of the Chevron Doctrine, 72 WASH. U. L.Q. 351,
352 (1994) (At step one, the court undertakes an independent examination of the question. If
it concludes the meaning of the statute is clear, that ends the matter.).
124 See Chevron, 467 U.S. at 843 n.9 (If a court, employing traditional tools of statutory
construction, ascertains that Congress had an intention on the precise question at issue, that
intention is the law and must be given effect.) (emphasis added).
125 See Aaron R. Cooper, Note, Sidestepping Chevron: Reframing Agency Deference for an Era
of Private Governance, 99 GEO. L.J. 1431, 1449 (2011).
126 See Brian G. Slocum, The Immigration Rule of Lenity and Chevron Deference, 17 GEO.
IMMIGR. L.J. 515, 529 (2003).

127 See discussion infra Parts III.A.12.
128 See discussion infra Part III.A.3.
1. Dodd-Frank Contains a Clear Definition of Whistleblower
The first section of Dodd-Franks whistleblower provision is the

definitional section.129 The section begins by stating that [i]n this section
the following definitions shall apply . . . .130 Included in the definitional
section is the term whistleblower. The section states that [t]he term
whistleblower means any individual who provides, or 2 or more
individuals acting jointly who provide, information relating to a violation
of the securities laws to the Commission, in a manner established, by rule
or regulation, by the Commission.131 The definition, in clear and
unambiguous language, states that an individual must provide the
information relating to the securities law violation to the SEC.132 Congress
left no room for any additional definitions of whistleblower whatsoever.133
Furthermore, the following phrasethat the information must be
provided in a manner established, by rule or regulation, by the
Commissionrefers to the actual procedure individuals must follow in
providing their information to the SEC.134 More importantly, this
procedure, established by the SEC in 240.21F9(a) of the Code of Federal
Regulations, states that:
To be considered a whistleblower under Section 21F of the
Exchange Act (15 U.S.C. 78u6(h)),135 you must submit your
information about a possible securities law violation by either of
these methods: (1) Online, through the Commissions Web site
located at http://www.sec.gov; or (2) By mailing or faxing a Form
TCR . . . to the SEC Office of the Whistleblower . . . .136
Thus, when drafting the rules surrounding the whistleblower

provision, the SEC acknowledged that, in order to receive the protections
of the anti-retaliation provision, an individual was required to submit the
information regarding the securities law violation directly to the SEC,
either on the SECs website or by mail or fax to the Office of the
Whistleblower.137 Ultimately, based on its clear and unambiguous
129 15 U.S.C. 78u-6(a) (2012).

130 Id.
131 Id. 78u-6(a)(6).
132 See Walker, supra note 7, at 1767 (stating that the plaintiff in Asadi conceded that the
definition of whistleblower was clear).

133 See SCALIA & GARNER, supra note 21, at 226 (When, by contrast, a definitional section
says that a word means something, the clear import is that this is its only meaning.).
134 78u-6(a)(6); see also 17 C.F.R. 240.21F9(a) (2011) (stating that information must be
provided to the SEC online, by mail, or by fax).

135 240.21F-9(a). This section is Dodd-Franks anti-retaliation provision. See 78u6(h).
136 240.21F9(a).
137 See id.
language, as well as the rules and regulations drafted around it, Dodd-
Franks definition of whistleblower requires an individual to report the
securities law violation to the SEC.138
2. The Anti-retaliation Provision Provides Protection Solely

to Whistleblowers
Dodd-Franks anti-retaliation provision provides whistleblowers with

protections from termination, demotion, suspension, harassment, or other
discriminatory actions taken by employers, that arise from three specific
actions taken by the whistleblower.139 These three actions include: (1)
providing information to the SEC; (2) initiating, testifying in, or assisting
in any action by the SEC based on the information provided by the
individual; or (3) making disclosures required or protected under
Sarbanes-Oxley or any other law or regulation subject to the jurisdiction of
the SEC.140 At first glance, it seems like the anti-retaliation provision
specifically the third sectionprovides protection to individuals who do
not report the securities law violations to the SEC.141 However, it is a
fundamental canon of statutory construction that the words of a statute
must be read in their context and with a view to their place in the overall
statutory scheme.142 The anti-retaliation provision begins by stating [n]o
employer may discharge . . . or in any other manner discriminate against, a
whistleblower . . . because of any lawful act done by the whistleblower and
then lists the protected actions.143 It incorporates the definition of
whistleblower from the definitional section.144 Using the ordinary tools of
138See 78u-6(a)(6); 240.21F9(a).

139See Stephanie Klein, Comment, Interpreting the Definition of a Whistleblower Under Dodd-
Franks Anti-retaliation Provision: How and Why Public Policy Should Guide the Courts in Finding
that Whistleblowers Do Not Need to Report to the SEC, 10 FIU L. REV. 279, 286 (2014) (citing Dodd-
Franks anti-retaliation provision).
140 78u-6(h)(A).
141See Mouret, supra note 34, at 153940 (The plain words of the Anti-Retaliation Provision
seemingly give the individual the option of reporting externally or internally, so long as the
individual falls within the third prong.).
142 Util. Air Regulatory Grp. v. EPA 134 S. Ct. 2427, 2441 (2014); see United States v. Morton,
467 U.S. 822, 828 (1984) (We do not, however, construe statutory phrases in isolation; we read
statutes as a whole.).
143 78u-6(h)(1)(A) (emphasis added).
144 Id.; see Carcieri v. Salazar, 555 U.S. 379, 393 n.8 (2009) (When Congress has enacted a
definition . . . this Court must give effect to that definition . . . .); Burgess v. United States, 553
U.S. 124, 129 (2008) (Statutory definitions control the meaning of statutory words . . . .);
Stenberg v. Carhart, 530 U.S. 914, 942 (2000) (When a statute includes an explicit definition,
we must follow that definition . . . .).
statutory construction,145 the individual must be a whistleblower by

statutory definition, and be retaliated against for one of the enumerated
actions in order to bring a cause of action under the anti-retaliation
provision.146 To be a whistleblower under Dodd-Franks definition, an
individual must report the securities law violation to the SEC.147 Therefore,
to receive protection under Dodd-Franks anti-retaliation provision, an
individual must report the securities law violation to the SEC, and be
retaliated against by his or her employer for: providing such information to
the SEC; initiating, testifying, or assisting in a SEC enforcement action; or
making disclosure required or protected under Sarbanes-Oxley or any
other law or regulation subject to the jurisdiction of the SEC.148
The relationship between the definition of whistleblower and the anti-
retaliation provision is similar to the relationship between the definition of
related person and the assignment provision in Barnhart and the Coal
Act.149 In Barnhart, the Supreme Court determined that the definitional
section and the assignment provision of the Coal Act at issue were clear
and unambiguous.150 Furthermore, it found that the plaintiff did not meet
the statutory definition of a related person.151 Therefore, because the
assignment provision required an assignee to be a related person within
the meaning of the statute, the Court held that the defendant could not
assign retirees to the plaintiff without violating the Coal Act.152 Like the
statute at issue in Barnhart, Dodd-Franks definition of whistleblower
and its relationship to the anti-retaliation provision are clear and
unambiguous.153 The anti-retaliation provision requires individuals to meet
the statutory definition of whistleblower before they are able to bring an
action against their employer for retaliation.154 Therefore, individuals who
do not report securities law violations to the SEC, but bring an action
under the anti-retaliation provision, are not protected by the provision.155
145 See SCALIA & GARNER, supra note 21, at 228 (It is very rare that a defined meaning can
be replaced with another permissible meaning of the word on the basis of other textual
indications; the definition is virtually conclusive.).
146 See Asadi v. G.E. Energy (USA), L.L.C., 720 F.3d 620, 625 (5th Cir. 2013).
147 See supra Part III.A.1.
148 Asadi, 720 F.3d at 630.
149 See supra Part I.B.1.
150 Barnhart v. Sigmon Coal Co., 534 U.S. 438, 46162 (2002).
151 Id. at 452.
152 Id. at 454.

154 Asadi, 720 F.3d at 630.

155 Id.
3. Because the Language of the Statute is Clear and

Unambiguous, Courts Should Not Defer to the SECs
Interpretation of the Statute
A court, correctly using the ordinary tools of statutory construction,

would likely determine that the language of the anti-retaliation provision is
clear and unambiguous.156 Because of this determination, it is not necessary
for courts to examine whether the SECs interpretation of the anti-
retaliation provision is reasonable.157 Thus, courts do not need to analyze
whether the SECs process in making its interpretation was logical,
rational, and based on a consideration of relevant factors.158 Congress
provided only one definition of whistleblower,159 and it is the only
definition to which courts may give deference.160 Therefore, the SECs
generous conviction that an individual may qualify as a whistleblower for
purposes of the anti-retaliation provision, even though he or she did not
report the securities law violations to the SEC, carries no weight with any
district court or court of appeals.161
B. Courts Should Follow the Supreme Courts Dicta in Lawson
While dictum is by no means precedential,162 the Supreme Court

provided lower courts with relevant guidance regarding Dodd-Franks
156See supra Part III.A.2.

157See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 845 (1984); see also
Household Credit Serv., Inc. v. Pfennig, 541 U.S. 232, 239 (2004) (We first ask whether
Congress has directly spoken to the precise question at issue. If so, courts, as well as the
agency, must give effect to the unambiguously expressed intent of Congress.).
158 Michigan v. EPA, 135 S. Ct. 2699, 2706 (2015); see Thomas W. Merrill, Presidential
Administration and the Traditions of Administrative Law, 115 COLUM. L. REV. 1953, 196465 (2015)
(stating that an increasing number of Supreme Court decisions determine the reasonableness
of an agencys interpretation by looking at the interpretations compatibility with the statutory
language, as well as the process in which the interpretation is developed).
159 See 15 U.S.C. 78u-6(a)(6) (2012).
160 Nicholas Quinn Rosenkranz, Federal Rules of Statutory Interpretation, 115 HARV. L. REV.
2085, 2104 (2002) ([W]hen Congress inserts a definitional section, courts resort not to their
usual grab bags of interpretive tools, but to the statutory definition alone.).
161 Contra Berman v. Neo@Ogilvy LLC, 801 F.3d 145, 155 (2d Cir. 2015); Yang v. Navigators
Grp., Inc., 18 F. Supp. 3d 519, 53334 (S.D.N.Y. 2014); Khazin v. TD Ameritrade Holding
Corp., No.134149 (SDW)(MCA), 2014 WL 940703, at *36 (D.N.J. Mar. 11, 2014); Azim v.
Tortoise Capital Advisors, LLC, No. 132267KHV, 2014 WL 707235, at *23 (D. Kan. Feb. 24,
2014); Ellington v. Giacoumakis, 977 F. Supp. 2d 42, 4446 (D. Mass. 2013); Nollner v. S.
Baptist Convention, Inc., 852 F. Supp. 2d 986, 995 (M.D. Tenn. 2012).
162 Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 399400 (1821); Ryan S. Killian, Dicta and the
Rule of Law, 2013 PEPP. L. REV. 1, 9 (2013).

anti-retaliation provision in Lawson.163 Dictum, by definition, is a courts

stating of a legal principle more broadly than is necessary to decide the
case.164 However, in certain circumstances, the Supreme Courts dicta
provide meaningful guidance and advice both to the Court itself165 and to
lower courts whom confront issues of first impression in their own
capacity.166 In fact, several courts of appeals construe the Supreme Courts
dicta as binding on their decisions.167
In Lawson, the Court, while confronting the applicability of Sarbanes-
Oxleys whistleblower provision, stated that Dodd-Franks anti-retaliation
provision requires an individual to disclose the securities law violation to
the SEC.168 It stated that FMR [the defendant] . . . somewhat overstates
Dodd-Franks coverage . . . Dodd Franks whistleblower provision . . .
focuses primarily on reporting to federal authorities.169 The Court, in
reference to the defendants argument that Dodd-Franks expanded
whistleblower protections covered the issue at hand, also stated that
Congress likely did not feel the same way the defendant did when it
drafted the anti-retaliation provisionimplying that Dodd-Franks
protections do not reach as far as the Second Circuit and other district
courts have held.170 Moreover, the United States, as amicus curiae, also
163 See supra Part I.F.

164 Lisa M. Durham Taylor, Parsing Supreme Court Dicta to Adjudicate Non-workplace Harms,
57 DRAKE L. REV. 75, 90 (2008) (quoting BLACKS LAW DICTIONARY).
165 See United States v. Dixon, 509 U.S. 688, 71415 (1993) (Rehnquist, C.J., OConnor, J.,
Thomas, J., concurring in part and dissenting in part) (stating that the Courts dicta were
significant due to its historical nature); Randy J. Kozel, The Scope of Precedent, 113 MICH. L. REV.
179, 191 (2014).
166 See Neal Kumar Katyal, Judges as Advicegivers, 50 STAN. L. REV. 1709, 1801 (1998)
([D]icta is commonplace, and it serves the function of advice giving.).

167 See Independence Institute v. Williams, 812 F.3d 787, 798 n.13 (10th Cir. 2016) ([T]his
court considers itself bound by Supreme Court dicta almost as firmly as by the Courts
outright holdings . . . .) (quoting Gaylor v. United States, 74 F.3d 214, 217 (10th Cir. 1996));
Hassan v. City of New York, 804 F.3d 277, 300 (3d Cir. 2015) (Supreme Court dicta requires
serious consideration . . . .); De Leon v. Abbott, 791 F.3d 619, 625 n.1 (5th Cir. 2015)
([A]lthough [w]e are not bound by dicta, even of our own court [,] [d]icta of the Supreme
Court are, of course, another matter.); Cuevas v. United States, 778 F.3d 267, 27273 (1st Cir.
2015) ([F]ederal appellate courts are bound by the Supreme Courts considered dicta almost
as firmly as by the Courts outright holdings . . . .); S. Wine & Spirits of Am., Inc. v. Div. of
Alcohol & Tobacco Control, 731 F.3d 799, 809 (8th Cir. 2013) (This court has shared the First
Circuits view that federal appellate courts are bound by the Supreme Courts considered
dicta almost as firmly as by the Courts outright holdings . . . .) (quoting Gaylor v. United
States, 74 F.3d 214, 217 (10th Cir. 1996)).
168 See supra Part.I.F.
169 Lawson v. FMR LLC, 134 S. Ct. 1158, 1175 (2014).
170 See id.
noted that Dodd-Franks anti-retaliation provision requires external

reporting to the SEC.171 Based on the above discussion of Supreme Court
dicta, the Courts statements in Lawson provide clear advice and guidance
regarding Dodd-Franks anti-retaliation provision for courts of appeals and
district courts to follow.172 Therefore, courts of appealsspecifically the
First, Third, Eighth, and Tenththat regard Supreme Court dicta as
seemingly binding should follow the Courts dicta in Lawson, while the
other courts of appeals should find it extremely persuasive.173
IV. Significant Public Policy Concerns Require an Individual to Report

Securities Law Violations to the SEC Before Receiving the
Protections of Dodd-Franks Anti-retaliation Provision
A. By Allowing Individuals to Report Securities Law Violations

Internally, the SEC Has Failed to Fulfill the Purpose of the Dodd-
Frank Act
Two of the stated purposes of Dodd-Frank are to protect the

American taxpayer . . . [and] to protect consumers from abusive financial
services practices . . . .174 In fulfilling that purpose, Congress enacted the
whistleblower provision, directing the SEC to pay monetary bounties to
whistleblowers whose information leads to a successful enforcement action
by the SEC.175 Shortly thereafter, the SEC established the Office of the
Whistleblower within the Division of Enforcement to administer and
effectuate the whistleblower program.176 At the time of its creation, then-
171 See Brief for the United States as Amicus Curiae Supporting Petitioners, at 2930,
Lawson v. FMR LLC, 134 S. Ct. 1158, 1175 (2014) (No. 12-3), 2013 WL 4049264.
172 See Lawson, 134 S. Ct. at 117475.
173 See Michael Abramowicz & Maxwell Stearns, Defining Dicta, 57 STAN. L. REV. 953, 1084
n.422 (2005) (A federal Court of Appeals is not bound by dicta in United States Supreme
Court opinions, although such expressions are worthy of serious consideration.). The
Supreme Courts opinion in Lawson was decided in 2014, while the Second Circuits opinion in
Berman was decided in 2015. Lawson, 134 S. Ct. at 1158; Berman v. Neo@Ogilvy LLC, 801 F.3d
145, 145 (2d Cir. 2015). Yet nowhere in the Second Circuits decision does the court even
mention Lawson. See Berman, 801 F.3d at 145. While this could have been due to several other
reasons, it was likely selectively forgotten by the majority. See generally Judith M. Stinson, Why
Dicta Becomes Holding and Why it Matters, 76 BROOK. L. REV. 219, 24860 (2010) (listing the
changing nature of judicial opinion writing, the changing nature of legal research, changes to
citation rules, and societal changes as reasons dicta is overlooked in judicial opinions).
174 Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111-203, 124
Stat. 1376, 1376 (2010).

17515 U.S.C. 78u-6(b)(1) (2012).
176SEC, 2015 ANNUAL REPORT TO CONGRESS ON THE DODD-FRANK WHISTLEBLOWER
PROGRAM 4 (2015), https://www.sec.gov/whistleblower/reportspubs/annual-reports/owb-
annual-report-2015.pdf [http://perma.cc/WVQ9-TZGH]; see 15 U.S.C. 78u-7(d) (2012) (The
Chairwoman Mary L. Schapiro stated that [t]he new whistleblower

program is a part of our effort to enhance the agencys capacity to detect
and prevent fraud.177 Then-Commissioner Luis A. Aguilar expanded on
the purpose of the whistleblower program, stating:
The goal of the whistleblower program is to create a system that
incentivizes individuals to come forward with high quality
information to help the Commission expose fraud. The
construction of these rules and the whistleblower program
required the Commission to grapple with many nuanced issues. I
commend the staff for making reasonable judgments to resolve
the many competing considerations at issue here. Careful
attention was given to the statutory scheme established by
Congress, and to Congresss directive for the Commission to
consider the public interest, investor protection, and the effects
on competition, efficiency, and capital formation.178
After careful examination of its history, there is no doubt that Congress, as

well as the SEC, intended for the whistleblower provision, including the
anti-retaliation provision, to encourage and motivate individuals to report
securities law violations to the SEC in an effort to curb corporate fraud and
illegality.179
Unfortunately, in direct contravention of Congress stated purpose, the
SEC has extended the incentives of the whistleblower provision to faux-
whistleblowersthose whistleblowers that solely report violations of
securities laws internally.180 The SECs policy furthers no compelling public
interest,181 and does not allow the SEC to fulfill its duty to protect investors
Securities and Exchange Commission shall establish a separate office within the Commission
to administer and enforce the provisions of section 78u-6 of this title.).
177 Mary L. Schapiro, Chairwoman, U.S. Sec. & Exch. Commn, Opening Statement at SEC
Open Meeting: Item 2 Whistleblower Program (May 25, 2011),

http://www.sec.gov/news/speech/2011/spch052511mls-item2.htm [https://perma.cc/B4WH-
Y82D].
178 Luis A. Aguilar, Commissioner, U.S. Sec. & Exch. Commn, Incentivizing
Whistleblowers to Bring Fraud to Light (May 25, 2011), http://www.sec.gov/

news/speech/2011/spch052511laa-item2.htm [https://perma.cc/NT5Z-HNJ6].
179 See S. REP. No. 111-176, at 38 (2010), 2010 WL 1796592 (The SEC would have more help
in identifying securities law violations through a new, robust whistleblower program

designed to motivate people who know of securities law violations to tell the SEC.); Dave
Ebersole, Blowing the Whistle on the Dodd-Frank Whistleblower Provisions, 6 OHIO ST.
ENTREPRENEURIAL BUS. L.J. 123, 124 (2011) (By expanding anti-retaliation protection and
monetary incentives, Dodd-Frank is designed to incentivize whistleblowers to expose
securities fraud.).
180 17 C.F.R. 240.21F-2(b) (2011); SEC INTERPRETATION, supra note 14.
181 Cf. Mendelsohn, supra note 110 (stating that internally reporting wrongdoing does not
further the public interest of detection and enforcement).

and maintain efficient capital markets.182 By putting forth this erroneous

interpretation of the anti-retaliation provision and encouraging individuals
to report internally, the SEC has breached the trust Congress instilled in it
to fight corporate fraud through the use of whistleblowing insiders.183
The SEC cannot shoulder all of the blame.184 Since its enactment,
Congress senators and representatives, ostensibly due to their selective
memory or the special interest money that lines their coffers, have actively
attempted to rollback Dodd-Franks provisions and disrupt its
effectiveness.185 Congress tactics to take away Dodd-Franks teeth have
been both budgetary and substantive.186
Originally, the Dodd-Frank Act authorized Congress to increase the
SECs budget to $2.25 billion by 2015.187 However, the SECs actual budget
in 2015 was only $1.5 billiona slight shortfall of $750 million.188 Luckily,
Congress saw the error in its ways, and authorized a budget of $1.6 billion
in 2016, 30% less than the amount authorized in the Dodd-Frank Act.189 In
addition to budget deficiencies, both the House of Representatives and the
Senate have introduced several billsnone of which were even voted on
that would repeal Dodd-Frank in whole.190 However, somewhat successful
attempts have been made to repeal certain parts of the Act.191 In 2013, the
House of Representatives, with help from Citigroup lobbyists, passed the
Swaps Regulatory Improvement Act, which would have rolled back
182 See What We Do, SEC, https://www.sec.gov/about/whatwedo.shtml

[https://perma.cc/5ZH3-P8ZF] (last modified June 10, 2013).
184 See infra text accompanying notes 18591.
185 See Jim Puzzanghera & Lisa Mascaro, Congress could enact rollback of Dodd-Frank limits on
Derivatives, L.A. TIMES (Dec. 10, 2014, 5:00 PM), http://www.latimes.com/business/la-fi-dodd-

frank-securities-20141211-story.html [https://perma.cc/4DMG-T88Q].
186 See David Rodgers, House GOP cuts IRS, SEC funding, POLITICO (June 14, 2014, 10:07
AM), http://www.politico.com/story/2014/06/irs-sec-funding-house-gop-cuts-107940 [https://

perma.cc/DX7M-AZWD]; Ryan Tracy, Heres Whats in the Shelby Bill, WALL ST. J.: WASH. WIRE
(May 12, 2015, 8:02 AM), http://blogs.wsj.com/washwire/2015/05/12/heres-whats-in-the-
shelby-regulatory-relief-bill/ [https://perma.cc/8HAT-UCMP].
187 SEC, IN BRIEF: FY 2012 CONGRESSIONAL JUSTIFICATION 2 (2011),
https://www.sec.gov/about/secfy12congbudgjust.pdf [https://perma.cc/S3QQ-8LQF].
188 Budget History - BA vs. Actual Obligations ($ in 000s), SEC,
https://www.sec.gov/foia/docs/budgetact.htm [https://perma.cc/P2EH-3823] (last modified

Mar. 2, 2016).
189 Id.
190 H.R. 87, 112th Cong. (2011); S. 712, 112th Cong. (2011); S. 746, 112th Cong. (2011); H.R.
46, 113th Cong. (2013); S. 20, 113th Cong. (2013); H.R. 171, 114th Cong. (2015); S.89, 114th
Cong. (2015).
191 See generally Weisman & Lipton, supra note 105 (detailing Congress successful attempts
to weaken the regulations put in place by Dodd-Frank).

derivative reform implemented by Dodd-Frank.192 In 2015, the Senate

Banking Committee, lead by Chairman Richard Shelby, passed the
Financial Regulatory Improvement Act of 2015, weakening the Volcker
Rule and allowing large commercial banks to engage in proprietary
trading.193 While these actions have yet to strike a significant blow to Dodd-
Franks essential regulatory scheme, a time will comelikely in the not-
too-distant futurewhere Congress grants unchecked power to big banks
and other too big to fail financial institutions, reverting the U.S. economy
to 2008 levels.194
Congressional attempts to declaw the Dodd-Frank Act have unveiled
systemic issues within the financial regulatory system, directly affecting
the SEC and its interpretation of the anti-retaliation provision.195 Congresss
actions since the enactment of Dodd-Frank, specifically its attempts to
restrict the SECs budget and repeal the Act itself, have relayed the notion
that protecting American consumers from corporate greed and fraud is no
longer a priority.196 As a result, the SEC has begun to disregard the
necessary toolsnamely Dodd-Franks whistleblower and anti-retaliation
provisionsprovided by Congress to haul corporate wrongdoers into
court.197 The SECs erroneous interpretation of the anti-retaliation provision
demonstrates this to a tee.198 Its interpretation disregards one of the main
incentives for whistleblowers to report to the SEC, while allowing
individuals who do not report securities law violations to skirt around the
regulatory system.199 By allowing faux-whistleblowers to benefit off of a
192 Eric Lipton, House Votes to Repeal Dodd-Frank Provision, N.Y. TIMES: DEALBOOK (Oct. 30,
2013, 7:03 PM), http://dealbook.nytimes.com/2013/10/30/house-passes-bill-on-derivatives/.

[https://perma.cc/V5A2-38CL]. Citigroup lobbyists drafted seventy lines of the bill, in an
attempt to garner support from House Democrats. Id.
193 Michael Flaherty, Financial regulation relief bill passes through appropriations panel, REUTERS
(July 22, 2015, 2:31 PM), http://www.reuters.com/article/us-banks-regulations-shelby-

idUSKCN0PW1J920150722 [https://perma.cc/S7F7-ZPCK].
194 See David Lazarus, A big political battle over Dodd-Frank financial reforms is coming in 2016,
L.A. TIMES (Dec. 27, 2015, 5:00 AM), http://www.latimes.com/business/la-fi-lazarus-20151227-

column.html [https://perma.cc/BQ4E-GET7] (speculating that there will be a significant effort
in Congress to roll back the Dodd-Frank Act in 2016).
195See supra text accompanying notes 18794.
196Compare Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111-
203, 124 Stat. 1376 (2010) (To promote the financial stability of the United States by
improving accountability and transparency in the financial system, to end too big to fail, to
protect the American taxpayer by ending bailouts, to protect consumers from abusive
financial services practices . . . .), with S.89, 114th Cong. (2015) (To repeal the Dodd-Frank
Wall Street Reform and Consumer Protection Act.).
197 Moore, supra note 107.
198 See SEC INTERPRETATION, supra note 14, at 8.
199 See id.
system intended to strike down financial deceit, the SEC acts directly
against Congress wishes, and enables corporate swindlers and con artists
to run rampant.200 But who can blame them when they are just following
Congresss lead.201
B. Courts Have Gotten All Too Comfortable Legislating from the Bench
Since the Constitutional Convention in 1787, legal scholars have

criticized the judiciary for operating beyond their limits and asserting
authority specifically reserved for the legislative branch.202 Courts acting in
this manner are said to be legislating from the bench.203 Legislating from
the bench has been defined as the courts participation in policy and
issue areas perceived to be the province of other institutions, especially
legislatures.204 In short, judges legislate from the bench when [i]nstead of
grounding their opinions on the accepted rules, standards, and texts of the
court system and the legal process, these judges consult their own policy
predilection, ideology, preferred philosophy, personal opinion, party
interest, or other subjective values.205 The Supreme Court was at the
forefront of this judicial activism under the leadership of both Chief Justice
Earl Warren from 1953 to 1969 and Chief Justice Warren Burger from 1969
to 1986 .206 However, the dynamic of the Supreme Court quickly changed
after Chief Justice William Rehnquist took charge in 1986.207 In contrast to
the Warren and Burger Courts, the Rehnquist Court committed itself to
judicial restraint, emphasizing deference to the states and to the elected

202 See Bruce G. Peabody, Legislating from the Bench: A Definition and a Defense, 11 LEWIS &
CLARK L. REV. 185, 190 (2007) (recounting the historical criticism of legislating from the
bench).
203 See Randy E. Barnett, Constitutional Clichs, 36 CAP. U. L. REV. 493, 500 (2008).
204 Peabody, supra note 202, at 197.
205 Id. at 201.
206 See Stephan O. Kline, Judicial Independence: Rebuffing Congressional Attacks on the Third
Branch, 87 KY. L.J. 679, 69192 (1999) (detailing the legacy of the Warren Court); see also Paul J.
Larkin, Jr., Public Choice Theory and Overcriminalization, 36 HARV. J.L. & PUB. POLY 715, 763
(2013) (Miranda is the paradigmatic example of the Warren Court acting like a legislature . . .
.); Mario Loyola, Trojan Horse: Federal Manipulation of State Governments and the Supreme
Courts Emerging Doctrine of Federalism, 16 TEX. REV. L. & POL. 113, 128 (2011) (For many
decades, the Supreme Court abandoned all pretense of protecting the very extensive portion
of active sovereignty retained by the states, and quickly discovered, especially under the
Warren and Burger Courts, that the Justices often enjoyed legislating more than judging.).
207 See Julie R. Lewis, Note, An Offer He Couldnt Refuse: Firestone v. Galbreath Finds that the
Racketeer Influenced and Corrupt Organizations Act (RICO) Is Unconstitutionally Vague, 23 U. TOL.
L. REV. 619, 64142 (1992) (Led by Chief Justice Rehnquist and Justice Scalia, the current
judicial trend disfavors legislating from the bench or judicial activism.).
branches of the federal government.208 The Rehnquist Court correctly

embraced a textualist approach to the Constitution, focusing on the text of
the document, and therefore furthered itself from the approaches utilized
by the previous Courts.209
In recent years, the Supreme Court under the leadership of Chief
Justice John Roberts has reverted to the unconstitutional legislative role
established by the Warren Court.210 As evidenced by the Courts decisions
in King v. Burwell and Obergefell v. Hodges, the majority of the Courts
justices have imputed their own personal philosophies and beliefs into
their decision-making, thereby functioning as a legislature does and
reaching decisions not based on a constitutional basis.211 By engaging in
judicial activism and legislating from the bench, the Supreme Court has
completely disregarded one of the most important constitutional canons
that courts must presume that a legislature says in a statute what it means
and means in a statute what it says there.212 When interpreting statutes,
[i]f . . . the legislature . . . shall pass a law within the general scope of their
constitutional powers . . . the court cannot pronounce it void, merely
208 Christopher E. Smith, The Supreme Courts Emerging Majority: Restraining the High Court
or Transforming Its Role, 24 AKRON L. REV. 393, 401 (1990); John C. Yoo, In Defense of the Courts
Legitimacy, 68 U. CHI. L. REV. 775, 786 (2001).
209 Ed R. Haden, Judicial Selection: A Pragmatic Approach, 24 HARV. J.L. & PUB. POLY 531, 532
(2001).
210 See Jessica K. Sink, Abramski v. United States 134 S. Ct. 2559 (2014), 41 OHIO N.U. L. REV.
507, 524 n.168 (2015); cf. Jordan Singer, Faculty Blog: Recent Supreme Court Term: The Supreme
Court Openly Challenges Its Own Legacy, 50 NEW ENG. L. REV. ON REMAND BLOG (July 28, 2015),
https://newenglrev.com/2015/07/28/recent-supreme-court-term-the-supreme-court-openly-
challenges-its-own-legacy/ [https://perma.cc/XQK3-6CDS] (stating that the majority in
Obergefell opened itself up to criticism for overstepping the Courts institutional bounds).
211 See King v. Burwell, 135 S. Ct. 2480, 2497 (2015) (Scalia, J., Thomas, J., Alito, J.,
dissenting) (But normal rules of interpretation seem always to yield to the overriding
principle of the present Court: The Affordable Care Act must be saved.); Obergefell v.
Hodges, 135 S. Ct. 2584, 2629 (2015) (Scalia & Thomas, JJ., dissenting) (This is a naked judicial
claim to legislativeindeed, super-legislativepower; a claim fundamentally at odds with
our system of government.).
212 See Conn. Natl Bank v. Germain, 503 U.S. 249, 25354 (1992) (quoting Rubin v. United
States, 449 U.S. 424, 430 (1981)); SCALIA & GARNER, supra note 21, at 8283 (When
government-adopted texts are given a new meaning, the law is changed; and changing
written law, like adopting written law in the first place, is the function of the first two
branches of governmentelected legislators and . . . elected executive officials and their
delegates. Allowing laws to be rewritten by judges is a radical departure from our democratic
system.).
because it is, in their judgment, contrary to the principles of natural

justice.213
The Supreme Court, by ignoring of this constitutional canon, has
caused a trickle-down to federal district and appellate courts, specifically
with regards to Dodd-Franks whistleblower and anti-retaliation
provisions.214 Congress crafted the language of the provisions in a clear and
unambiguous manner.215 It created the sole remedy for individuals who
were retaliated against by their employers after they had reported
securities law violations to the SEC.216 However, in an effort to curb a
perceived injustice to corporate whistleblowers, federal courts throughout
the country, acting as an unelected legislature, have created a remedy that
has no basis in the statute drafted by Congress.217 In doing so, these judges
have overstepped constitutional boundaries by engaging in policymaking,
based on their own personal and political beliefs of fairness and justice.218
While the courts end goal to provide protection to all corporate
whistleblowers is admirableand likely deservingallowing laws to be
rewritten by judges is a radical departure from our democratic system.219
In the United States, the legislature makes the law, and the judiciary
interprets that law in a manner consistent with the Constitution and its
canons.220 In the instant case, Congress provided, in clear and
unambiguous language, anti-retaliation protections to those
whistleblowers who report securities law violations to the SEC.221
Therefore, the courts must interpret the anti-retaliation provision in a
manner consistent with the language of Congress, providing no additional
213 Gary L. McDowell, The Perverse Paradox of Privacy, in A COUNTRY I DO NOT
RECOGNIZE: THE LEGAL ASSAULT ON AMERICAN VALUES 57, 77 (Robert H. Bork ed., 2005)
(quoting Justice Iredells concurrence in Calder v. Bull, 3 U.S. (2 Dall.) 386, 399 (1798)).
214 See, e.g., Berman v. Neo@Ogilvy LLC, 801 F.3d 145, 155 (2d Cir. 2015); Yang v.
Navigators Grp., Inc., 18 F. Supp. 3d 519, 53334 (S.D.N.Y. 2014); Khazin v. TD Ameritrade
Holding Corp., No.134149 (SDW)(MCA), 2014 WL 940703, at *36 (D.N.J. Mar. 11, 2014);
Azim v. Tortoise Capital Advisors, LLC, No. 132267KHV, 2014 WL 707235, at *23 (D. Kan.
Feb. 24, 2014); Ellington v. Giacoumakis, 977 F. Supp. 2d 42, 4446 (D. Mass. 2013); Nollner v.
S. Baptist Convention, Inc., 852 F. Supp. 2d 986, 995 (M.D. Tenn. 2012).
215 See discussion supra Part III.A.2.
217 See, e.g., Berman, 801 F.3d at 155.
218 See SCALIA & GARNER, supra note 21, at 34748 (In 1933, Justice Benjamin Cardozo
wrote: We do not pause to consider whether a statute differently conceived and framed
would yield results more consonant with fairness and reason.).
219 See id. at 83.
220 See Merli v. Heckler, 600 F. Supp. 249, 254 (D.N.J. 1984).
protections to any other individuals.222 Any other conclusion, specifically

one that rewrites the statute, is inconsistent with the Constitution and the
principle that courts must abide by the clear and unambiguous language of
Congress.223
CONCLUSION
In response to the largest economic crisis since the Great Depression,

Congress passed the Dodd-Frank Act. With its enactment, Congress
intended to protect American investors and consumers from corporate
fraud and illegality. Most important in fulfilling this purpose was the
creation of a comprehensive whistleblower program. The whistleblower
program provided the SEC with the most powerful and effective tool in its
battle against Wall Street and other public corporationsa reliable
whistleblowing insider. To incentivize whistleblowers to come forward to
the SEC with their information, Congress also enacted an anti-retaliation
provision, preventing the whistleblowers employers from terminating or
otherwise discriminating against them for assisting in the SECs
investigation. Further, the language of the whistleblower and anti-
retaliation provisions clearly provides that a condition precedent to
receiving the protections of the anti-retaliation provision is to report the
violation to the SEC, thereby assisting the agency in its investigations and
enforcement actions. Both the whistleblower and the anti-retaliation
provisions have proved wildly successful, as the SEC has received a 30%
increase in tips since 2012 and has paid more than $54 million to
whistleblowers whose information led to successful enforcement actions.
However, the whistleblower program, and the vital assistance it
provides to the financial regulatory system, is under attack. Both the courts
and the SEC have diminished the efficiency and effectiveness of the
whistleblower program by incorrectly crafting interpretations of the anti-
retaliation provision that do not align with the language of the statute.
They have provided an incentive of the whistleblower programthe anti-
retaliation provisionto individuals whose reporting serves no compelling
public interest. In doing so, they violate the well-defined constitutional
canon that courts and agencies must give effect to Congresss clear and
unambiguous language. Furthermore, courts, including the Court of
222 See Asadi v. G.E. Energy (USA), L.L.C, 720 F.3d 620, 630 (5th Cir. 2013); see also Verble v.
Morgan Stanley Smith Barney, LLC, No. 3:15-CV-74-TAV-CCS, 2015 WL 8328561, at *5 (E.D.
Tenn. Dec. 8, 2015); Verfuerth v. Orion Energy Sys, Inc., 65 F. Supp. 3d 640, 64346 (E.D. Wis.
2014); Banko v. Apple Inc., 20 F. Supp. 3d 749, 75557 (N.D. Cal. 2013).
223 See Natl Fedn of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2651 (2012) (Scalia, J., Kennedy,
J., Thomas, J., Alito, J., dissenting).

Appeals for the Second Circuit, have interpreted the provision in a manner
that constitutes judicial legislationa radical departure from our
democratic system. Ultimately, the only way to restore Congresss
original intent for the whistleblower and anti-retaliation provisions, thus
providing the SEC with necessary tools to access significant inside
information, is for the Supreme Court to rule in favor of the clear and
unambiguous language of the statute. Until then, the whistleblower and
anti-retaliation provisions, as well as the fight against corporate fraud,
greed, and illegality, will remain in limbo.

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Whistleblowing from the Bench

courts interpretations have also led to a split between the courts of

(Sept. 14, 2008), http://www.nytimes.com/2008/09/15/business/15lehman.html [https://

http://www.wsj.com/articles/SB124182740622102431 [https://perma.cc/6BXQ-327T] (examining

largest economic crisis since the Great Depression.6 The most

1934 68 (2015), https://www.sec.gov/rules/interp/2015/34-75592.pdf [https://perma.cc/8J9L-

(S.D.N.Y. 2014); Khazin v. TD Ameritrade Holding Corp., No.134149 (SDW)(MCA), 2014 WL

A. A Brief Overview of the Whistleblower and Anti-retaliation

Section 922 of the Dodd-Frank Act amended the Securities Exchange

922, 124 Stat. 184149 (2010).

1. The Statutory Definition of a Whistleblower

Section 78u-6(a), the first subsection of the whistleblower provision, is

2. The Anti-retaliation Provision

Section 78u-6(h)(1) provides whistleblowers with protection against

No employer may discharge, demote, suspend, threaten,

31 See id. (emphasis added).

rule, or regulation subject to the jurisdiction of the

While the plain language of the provision seems straightforward

B. A Travelers Guide to Statutory Interpretation

In Chevron, U.S.A., Incorporated v. Natural Resource Defense Council,

39 City of Arlington v. FCC, 133 S. Ct. 1863, 1868 (2013).

Tobacco Corp., 529 U.S. 120, 133 (2000)).

this to mean that the agencys interpretation of the statute must be

1. Statutory Interpretation at its Finest

In Barnhart v. Sigmon Coal Company, the Supreme Court applied

47 Barnhart v. Sigmon Coal Co., 534 U.S. 438, 46163 (2002).

C. The Good: Asadi v. G.E. Energy (USA), L.L.C.

In Asadi, the plaintiff disclosed to his supervisor and the defendant-

interest of any person described in clause (i), (ii), or (iii).).

The Fifth Circuits analysis focused on the construction of the statute,

Protections for Internal Reporting, 86 TEMP. L. REV. 721, 743 (2014).

U.S. 837, 84244 (1984)).

protection to individuals who do not report the potential securities law

D. The Bad: Berman v. Neo@Ogilvy LLC

In Berman, the plaintiff alleged a violation of the anti-retaliation

E. The Ugly: The SEC Chimes In

Shortly after Congress enacted the Dodd-Frank Act, the SEC

subdivision and the definition of whistleblower do not fit neatly together.).

CORRUPTION CURRENTS (Aug. 11, 2011, 5:08 PM), http://blogs.wsj.com/corruption-

Furthermore, the rule states that [t]he anti-retaliation protections

F. The Supreme Courts Dicta

defendant-corporations main arguments was that the Dodd-Frank Acts

II. The Interpretations of the Anti-retaliation Provision by the Courts

A. The Interpretations of the Statute Frustrate its Purpose

The enactment of Dodd-Frank was the largest upheaval of the financial

constitutes a violation of . . . any rule or regulation of the Securities and Exchange

Stat. 1376 (2010).

Circuit Victory for Dodd-Frank Whistleblower Defendants in Khazin v. TD Ameritrade Holding

Consumer Choice, 12 PEPP. DISP. RESOL. L.J. 503, 51920 (2012).

INTERPRETATION, supra note 14.

whistleblowers that contribute to the financial regulatory system.111

B. Courts Have Rewritten the Dodd-Frank Act by Interpreting the

It is a canon of constitutional law that a court cannot rewrite a statute

Thomas, J., Alito, J., dissenting).

Grp., Inc., 18 F. Supp. 3d 519, 53334 (S.D.N.Y. 2014).

III. Dodd-Franks Anti-retaliation Provision Requires an Individual to

A. Dodd-Franks Language is Clear and Unambiguous

In Chevron, the Supreme Court unveiled a two-step framework for

IMMIGR. L.J. 515, 529 (2003).

1. Dodd-Frank Contains a Clear Definition of Whistleblower

The first section of Dodd-Franks whistleblower provision is the

Thus, when drafting the rules surrounding the whistleblower

129 15 U.S.C. 78u-6(a) (2012).