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David L. Axelrod and Priya Roy Ballard Spahr David L. Axelrod and Priya Roy, Ballard Spahr

Last week the U.S. Supreme Court significantly narrowed the definition of a “whistleblower” under Dodd-Frank. In Digital Realty Trust v. Somers, the court, ruled that for an employee to be deemed a whistleblower under Dodd-Frank, and thus be entitled to Dodd-Frank’s anti-retaliation safeguards, he must report the information relating to a violation of securities law to the Securities and Exchange Commission. Relying on the plain language of the statute and its legislative history, Justice Ruth Bader Ginsburg, held that an employee who merely reports potential securities law violations internally has not done enough to avail himself of the extensive Dodd-Frank anti-retaliation protections, including “the immediate access to federal court, a generous statute of limitations (at least six years), and the opportunity to recover double backpay.” The court’s opinion is interesting both for its rejection of deference to the SEC’s rulemaking, and the policy implications that will likely flow from mandating reporting to the SEC.

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