In Berman v. Neo@Ogilvy LLC., No. 14-CV-00523 (S.D.N.Y. Dec. 5, 2014), the former Finance Director of a subsidiary of a publicly-traded foreign corporation alleged that his termination violated the whistleblower retaliation provision of the Dodd-Frank Act, 15 U.S.C. §78u-6(h)(1)(A).  He asserted that he was terminated for complaining internally about several improper accounting practices but did not allege that he had communicated his concerns to the SEC.  The court found that omission to be fatal, disagreeing with a number of recent district court opinions but agreeing with the Fifth Circuit’s decision in Asadi v. G.E. Energy (USA), LLC, 720 F.3d 620 (5th Cir. 2013).  The Act defines a “whistleblower” as “any individual who provides…information relating to a violation of the securities laws to the Commission in a manner established, by rule or regulation, by the Commission.”  15 U.S.C. §78u-6(a).  The plaintiff argued that another provision of the Act provides that no employer may retaliate against a whistleblower “because of any lawful act done by the whistleblower…in making disclosures that are required or protected under the Sarbanes Oxley Act of 2002….”  As that clause includes disclosures to people with supervisory authority within the organization, plaintiff argued that it creates an ambiguity on the issue of to whom the disclosure must be made, and the court must therefore defer to the interpretation provided by the SEC, which in a 2011 regulation interpreted the term “whistleblower” to include people who reported only internally.  The court rejected this argument, finding that the Act’s plain language in the definition of “whistleblower” protects only plaintiffs who have provided information to the SEC.