On August 4, 2015, the SEC issued an interpretive rule to clarify that, for purposes of the anti-retaliation provisions of the Dodd-Frank Act, an individual’s status as a whistleblower was to be determined solely by SEC Rule 21F-2(b)(1). The interpretive rule explains that Rule 21F-2(b)(1) provides expressly that, for purposes of the anti-retaliation protections, the whistleblower need not report information to the Commission. The interpretive rule focused on SEC Rule 21F-9(a), which specifies the specific procedures for reporting to the SEC that must be followed by an individual who seeks to qualify as a whistleblower under Rule 21F-2(a). The interpretive rule clarifies that Rule 21F-9(a) is “a procedural rule that applies only to help determine an individual’s status as a whistleblower for purposes of Section 21F award and confidentiality provisions.” In summary, the interpretive rule explains that the rules governing an individual’s status as a whistleblower in the retaliation context are different from those for individuals seeking to recover an award and that those rules are not governed by Rule 21F-9(a). The SEC, of course, brought this interpretive rule to the attention of the Second Circuit during its consideration of the Berman case. The majority noted the SEC’s interpretive rule, as did the dissenting judge, who was unimpressed and noted that the SEC issued its interpretive rule only after oral argument.
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SEC issues formal interpretation of whistleblower rules regarding “whistleblower” definition
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