While the majority of recent cases interpreting the Dodd-Frank anti-retaliation provisions have found that a plaintiff need not report information to the SEC in order to bring a claim for retaliation, the district court for the Eastern District of Tennessee recently determined that it would follow the Fifth Circuit’s contrary conclusion in Asadi v. G. E. Energy (USA) LLC, 720 F.3d 620, 623 (5th Cir. 2013). In Verble v. Morgan Stanley Smith Barney, LLC, 2015 U.S. Dist. LEXIS 164495 (Dec. 8, 2015), the plaintiff was a financial advisor who alleged he was a confidential source to the FBI and had uncovered numerous securities law violations, including insider trading.
The plaintiff alleged that he was terminated for his involvement in the FBI investigation in violation of SOX and Dodd-Frank. The court first disposed of the plaintiff’s SOX complaint because it lacked subject matter jurisdiction over the claim because he had not filed a complaint with the Occupational Safety and Health Administration. With respect to the Dodd-Frank claim, the court noted that he provided information to the SEC more than three months after he had been terminated and, thus, was not a “whistleblower” under 15 U.S.C. Section 78u-6(a)(6). The court noted that the anti-retaliation provision does not have an alternate definition of “whistleblower.”
Thus, the court found the statutory language to be unambiguous and held that the plaintiff was not a “whistleblower and was not protected by the anti-retaliation provisions.”