The U.S. District Court for the District of New Jersey recently held that the Dodd-Frank Act does not operate retroactively to bar pre-dispute arbitration agreements, and thus required a plaintiff to arbitrate his Dodd-Frank whistleblower retaliation claim.  Boris Khazin v. TD Ameritrade Holding, No. 13-cv-4149 (D.N.J. March 11, 2014).


Plaintiff Boris Khazin commenced his employment with the Company as an investment oversight officer in 2006 and, as part of that employment, executed a pre-dispute arbitration agreement whereby he agreed to arbitrate any and all claims relating to his employment.  In April 2012, Plaintiff became aware of a certain financial product that allegedly failed to comply with relevant securities regulations.  According to Plaintiff, that product was overpriced and charged customers excessive overhead fees.  Plaintiff allegedly expressed his concerns to his supervisor, who instructed him to conduct a “revenue impact analysis” for the product.  His analysis allegedly showed that instituting a corrective change would result in a $1.15 million loss for the Company.  Plaintiff was allegedly instructed not to institute such corrective change and his employment was terminated a few months later.  Thereafter, he reported his concerns to the SEC and filed a retaliation claim against TD Ameritrade under the Dodd-Frank whistleblower protection provision.


The Company moved to dismiss the Dodd Frank claim or, alternatively, to compel arbitration pursuant to the pre-dispute arbitration agreement.  The court denied the motion to dismiss, rejecting the argument that Plaintiff’s claim failed because he did not report his concerns to the SEC prior to his discharge.  However, the court granted the Company’s motion to arbitrate.  Although Dodd Frank invalidates a range of pre-dispute arbitration agreements, the court ruled that the law does not retroactively bar any pre-dispute arbitration agreements and that the arbitration agreement was enforceable because the parties executed a valid arbitration agreement prior to Dodd-Frank’s enactment.


Dodd-Frank invalidates pre-dispute agreements regarding whistleblower claims under the Sarbanes-Oxley Act, the Commodities Exchange Act and claims filed by employees who report potential violations of federal consumer financial laws.  18 U.S.C. §1514A(e); 7 U.S.C. § 26(n)(2); 12 U.S.C. § 5567(d)(2).   But, Dodd-Frank does not invalidate pre-dispute arbitration agreements regarding whistleblower claims under the Securities Exchange Act (Section 922).  This decision does not directly address the issue of whether employers may in all instances compel arbitration of Section 922 claims.  Rather, the court simply ruled that the pre-dispute arbitration agreement at issue was enforceable because it was entered into prior to Dodd-Frank’s enactment.  The court therefore left unanswered whether it would have compelled arbitration if the parties had entered into the arbitration agreement after Dodd-Frank was enacted.

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Photo of Steven J. Pearlman Steven J. Pearlman

Steven J. Pearlman is a partner in the Labor & Employment Law Department and Co-Head of the Whistleblowing & Retaliation Group and the Restrictive Covenants, Trade Secrets & Unfair Competition Group.

Steven’s practice covers the full spectrum of employment law, with a particular…

Steven J. Pearlman is a partner in the Labor & Employment Law Department and Co-Head of the Whistleblowing & Retaliation Group and the Restrictive Covenants, Trade Secrets & Unfair Competition Group.

Steven’s practice covers the full spectrum of employment law, with a particular focus on defending companies against claims of employment discrimination, retaliation and harassment; whistleblower retaliation; restrictive covenant violations; theft of trade secrets; and wage-and-hour violations. He has successfully tried cases in multiple jurisdictions, and defended one of the largest Illinois-only class actions in the history of the U.S. District Court for the Northern District of Illinois. He also secured one of only a few ex parte seizures orders that have been issued under the Defend Trade Secrets Act, and obtained a world-wide injunction in federal litigation against a high-level executive who jumped ship to a competitor.

Reporting to boards of directors, their audit committees, CEOs and in-house counsel, Steven conducts sensitive investigations and has testified in federal court. His investigations have involved complaints of sexual harassment involving C-suite officers; systemic violations of employment laws and company policies; and fraud, compliance failures and unethical conduct.

Steven was recognized as Lawyer of the Year for Chicago Labor & Employment Litigation in the 2023 edition of The Best Lawyers in America. He is a Fellow of the College of Labor and Employment Lawyers.  Chambers describes Steven as an “outstanding lawyer” who is “very sharp and very responsive,” a “strong advocate,” and an “expert in his field.” Steven was 1 of 12 individuals selected by Compliance Week as a “Top Mind.” Earlier in his career, he was 1 of 5 U.S. lawyers selected by Law360 as a “Rising Star Under 40” in the area of employment law and 1 of “40 Illinois Attorneys Under Forty to Watch” selected by Law Bulletin Publishing Company. Steven is a Burton Award Winner (U.S. Library of Congress) for “Distinguished Legal Writing.”

Steven has served on Law360’s Employment Editorial Advisory Board and is a Contributor to He has appeared on Bloomberg News (television and radio) and Yahoo! Finance, and is regularly quoted in leading publications such as The Wall Street Journal.

The U.S. Chamber of Commerce has engaged Steven to serve as lead counsel on amicus briefs to the U.S. Supreme Court and federal circuit courts of appeal. He was appointed to serve as a Special Assistant Attorney General for the State of Illinois in employment litigation matters. He has presented with the Solicitor of the DOL, the Acting Chair of the EEOC, an EEOC Commissioner, Legal Counsel to the EEOC and heads of the SEC, CFTC and OSHA whistleblower programs. He is also a member of the Sedona Conference, focusing on trade secret matters.