Congress is poised to overturn two recent judicial interpretations of the whistleblower protections of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank). On Sept. 23, 2019, the Whistleblower Programs Improvement Act (WPIA) was introduced in the U.S. Senate.[1] If enacted, the WPIA would overturn the Supreme Court’s decision last year in Digital Realty Trust, Inc. v. Somers, 138 S. Ct. 767 (2018), which held that the anti-retaliation whistleblower protections of Dodd-Frank do not attach when a whistleblower only reports conduct through a corporation’s internal controls, and instead apply only when a whistleblower reports information to the Securities and Exchange Commission (SEC). In addition, the WPIA would abrogate a growing body of decisions by federal courts — recently joined by the U.S. Court of Appeals for the Second Circuit — holding that predispute agreements to arbitrate Dodd-Frank whistleblower claims are enforceable, and would instead require that such whistleblower claims be litigated in court.

The Arbitrability of Dodd-Frank Whistleblower Retaliation Claims

On Sept. 19, 2019, the Second Circuit in Daly v. Citigroup Inc. held that whistleblower retaliation claims arising under Dodd-Frank may be arbitrated.[2] Daly resolved a split on this issue among district courts within the Second Circuit, and joined the U.S. Court of Appeals for the Third Circuit and the majority of federal district courts permitting the arbitration of Dodd-Frank whistleblower retaliation claims.

Daly reconciled the language of two separate whistleblower protection statutes: 18 U.S.C. § 1514A, first enacted as a provision of the Sarbanes-Oxley Act of 2002 (SOX), and 15 U.S.C. § 78u-6(h), introduced under Dodd-Frank. SOX prohibits certain companies from “discharg[ing]” or otherwise “discriminat[ing] against” an employee because the employee “provide[d] information” to a federal regulatory or law enforcement agency, or to their supervisor, “regarding any conduct which the employee reasonably believes constitutes a violation” of specified federal securities laws. 18 U.S.C. § 1514A(a)(1). Dodd-Frank contains a similarly worded provision which, in relevant part, prohibits employers from “discharg[ing]” or “discriminat[ing] against” a “whistleblower . . . because . . . the whistleblower . . . ma[de] disclosures that are required or protected under [SOX].” 15 U.S.C. § 78u-6(h)(1)(A)(iii). Both statutes create a private right of action for violations of these respective provisions.[3]

The question presented in Daly was whether such whistleblower retaliation claims under Dodd-Frank could be compelled to proceed in arbitration; a question complicated by Dodd-Frank’s amendment of SOX. As originally enacted in 2002, nothing in SOX foreclosed employment agreements requiring whistleblower retaliation claims to be arbitrated. Dodd-Frank, however, amended SOX to void predispute arbitration agreements with respect to SOX retaliation claims. Specifically, Dodd-Frank amended SOX to include the following provision:

(e) Nonenforceability of Certain Provisions Waiving Rights and Remedies or Requiring Arbitration of Disputes.

(2) Predispute arbitration agreements.—No predispute arbitration agreement shall be valid or enforceable, if the agreement requires arbitration of a dispute arising under this section.

18 U.S.C. § 1514A(e)(2).

Dodd-Frank did not, however, include an analogous anti-arbitration clause with respect to whistleblower retaliation claims arising under Dodd-Frank itself. This omission created uncertainty as to whether a Dodd-Frank whistleblower retaliation claim based on a disclosure “required or protected” under SOX pursuant to 78u-6(h)(1)(A)(iii) could be compelled into arbitration. Some litigants have argued that it would make no sense for Dodd-Frank to have banned predispute arbitration agreements for whistleblower claims under SOX, while continuing to permit arbitration of claims arising under its own analogous provision.

Most courts have held that Dodd-Frank’s omission of an anti-arbitration clause signaled Congress’s intent to allow such claims to be arbitrated.[4] In Wiggins v. ING U.S., Inc., however, Judge Janet C. Hall of the United States District Court for the District of Connecticut reached the opposite conclusion, holding that a “Dodd-Frank claim [predicated on a disclosure protected under SOX], although enabled by . . . [Dodd-Frank] . . . also ‘aris[es] under’ [SOX],” which therefore foreclosed arbitration.[5] This decision created a district court split of authority within the Second Circuit.

The Second Circuit resolved this split in Daly. In that case, the plaintiff brought Dodd-Frank retaliation claims after Citigroup Inc. terminated her employment in the wake of her whistleblower complaint.[6] Pursuant to Citigroup’s Employment Arbitration Policy, plaintiff had previously agreed that “all employment-related disputes be arbitrated.”[7] Citigroup moved to compel arbitration and dismiss plaintiff’s claims. Then-District Judge Richard J. Sullivan (who has since been elevated to the Second Circuit) granted Citigroup’s motion to compel, observing “that the two whistleblower provisions [SOX and Dodd-Frank] are distinct, differing in procedure, remedies, and their statutes of limitation such that the conditions of one cannot simply be grafted upon the other.”[8]

The Second Circuit affirmed, holding that “nothing in Dodd-Frank’s text suggests that claims arising thereunder are nonarbitrable. Dodd-Frank amended several statutory provisions to include anti-arbitration provisions but did not do so with respect to its own whistleblower provision.”[9] The court reasoned that “Congress’s failure to attach an anti-arbitration provision to Dodd-Frank’s whistleblower provision, § 78u-6(h), while simultaneously amending similar statutory regimes to include the same, is a strong indication of its intent not to preclude Dodd-Frank whistleblower claims from arbitration.”[10] The court further reasoned that the foreclosure arbitration SOX retaliation claims were limited to disputes “arising under this section” — that is, the section of SOX amended by Dodd-Frank.[11] The Second Circuit observed that the “Dodd-Frank cause of action, by contrast, is not located in the same section, or even the same title, of the federal code.”[12] Although the Second Circuit did not engage Judge Hall’s holding in Wiggins, Daly effectively rejected Wiggins.

The Whistleblower Programs Improvement Act

On Sept. 23, 2019, WPIA was introduced to the U.S. Senate. A similar bill was overwhelmingly passed by the House of Representatives on July 9, 2019, by a vote of 410-12.[13]

Two provisions of the WPIA are relevant here. First, the bill would amend Dodd-Frank, specifically 15 U.S.C. § 78u-6, to include an anti-arbitration provision identical to the one in SOX,[14] which would effectively overturn the numerous cases, including Daly, holding that Dodd-Frank whistleblower claims may be arbitrated. This amendment would apply not only to actions commenced on or after the law’s enactment, but also to actions “pending” as of the date of its enactment.[15]

Second, WPIA would amend the definition of “whistleblower” under Dodd-Frank to include those who report potential securities laws violations internally, regardless of whether they also report the information to the SEC.[16] If passed, this amendment would abrogate the U.S. Supreme Court’s decision in Digital Realty Trust, Inc. v. Somers, where the Court construed the term “whistleblower” and thereby the anti-retaliation provisions of Dodd-Frank to only include those who reported information to the SEC.[17]


The scope of Dodd-Frank’s anti-retaliation protections and the forums in which they may be litigated are in flux. At the moment, Dodd-Frank retaliation claims may be arbitrated and may only be brought by those who reported information to the SEC. If the WPIA, as introduced to the Senate, is enacted into law, it would void all predispute agreements to arbitrate Dodd-Frank retaliation claims, including those pending at the time of the WPIA’s enactment, and expand the scope of Dodd-Frank’s anti-retaliation umbrella to include those who only reported information internally. This would, in turn, heighten the need for employers to ensure that employees are not retaliated against for reporting potential violations of federal law internally.