The U.S. Court of Appeals for the Ninth Circuit recently aligned itself with the Second Circuit by concluding that the anti-retaliation provisions afforded to whistleblowers under the Dodd-Frank Act also protect employees that internally report suspected securities law violations. This widens the circuit split with the 2013 decision by the Fifth Circuit that employees are protected from retaliation only if they report to the SEC. The Ninth Circuit’s decision coincides with the SEC’s aggressive promotion of whistleblowing by penalizing employers with policies or practices interfering with an individual’s ability to report suspected securities law violations to regulators. The SEC’s actions, coupled with this widening circuit split, have moved whistleblower considerations to the forefront of employment decisions by asset managers. In particular, in jurisdictions like New York, where employment is “at will” and no statute protects private company employees from reprisal for blowing the whistle on suspected securities law violations, employers must thoughtfully craft employment policies, practices and documentation to manage risk. In a guest article, Seward & Kissel partner Anne C. Patin outlines the split among certain circuit courts as to the scope of the SEC’s whistleblower protections, and provides guidance to asset managers on how to proceed in light of the various interpretations of the SEC whistleblower rules. For more on whistleblower issues, see “How Promoting Internal Reporting Can Reduce Risk of Regulatory Intervention for Hedge Fund Managers
” (Aug. 11, 2016); and “How Hedge Fund Managers Can Protect Privileged Internal Investigations Without Violating SEC Whistleblower Rule 21F-17
” (May 21, 2015).