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38 W. New Eng. L. Rev. 1 (2016)

handle is hein.journals/wnelr38 and id is 1 raw text is: WESTERN NEW ENGLAND LAW REVIEW Volume 38 2016 Issue 1 NOTES SECURITIES/ADMINISTRATIVE LAW INTERNAL REPORTERS WHO BLOW THE WHISTLE: ARE THEY PROTECTED UNDER THE DODD-FRANK ACT'S ANTI-RETALIATION PROVISION? Kristin Goodchild * In 2010, Congress enacted the Dodd-Frank Wall Street and Consumer Protection Act (the Dodd-Frank Act), which was a sweeping piece of legislation that required the implementation of new rules and regulations throughout the financial industry. Interpretative ambiguity exists within the Dodd-Frank Act's whistleblower program, which provides a definition of who qualifies as a whistleblower, and an anti- retaliation provision, which is intended to protect whistleblowers from retaliation. The ambiguity arises because a whistleblower is defined as an individual who makes a report to the Securities and Exchange Commission (the SEC). However, the anti-retaliation provision describes three categories of protected whistleblowing activities, one of which can be construed as an exception to the whistleblower definition since it does not require disclosure to the SEC. The SEC sought to clarify this ambiguity by issuing a rule (the SEC's Rule) explaining that retaliation protection under the Dodd-Frank Act extends to an individual who only reports possible securities law violations through his employer's internal whistleblowing procedures. The Second and Fifth Circuits and several district courts have weighed in. The Fifth Circuit and the minority of district courts have determined that there is no ambiguity and, according to the definition of whistleblower, an individual must report potential securities law violations to the SEC to receive retaliation protection. The Second Circuit and a majority of district courts have determined that there is ambiguity and the SEC's Rule is a reasonable interpretation that should be given deference in order to provide retaliation protection to an