On February 6, the SEC filed its third amicus brief defending its interpretive rule on Dodd-Frank’s anti-retaliation provision, 15 U.S.C. §78u-6(h)(1).  The impetus is a ruling out of the Southern District of New York in Berman v. Neo@Ogilvy, No. 14-cv-523, which follows the Fifth Circuit Asadi decision concluding that the Dodd-Frank anti-retaliation provision does not cover internal complaints.  The district court in Berman dismissed the plaintiff’s lawsuit because he made only an internal report, and an appeal to the Second Circuit ensued.

This amicus brief is substantially similar to the SEC briefs filed in Liu Meng-Lin v. Siemens AG (Second Circuit) and Safarian v. American DG Energy (Third Circuit), with one notable exception.  The SEC’s most recent brief now argues that failing to defer to its interpretation could “arbitrarily and irrationally deny” whistleblowers protection who first report violations to the DOJ, FBI or other self-regulatory organizations (e.g., FINRA).  In support, the SEC argues that the Dodd-Frank bounty program requires the SEC to pay an award based on monetary sanctions collected in “related actions.”  It contends that because Dodd-Frank’s whistleblower protections “complement the related component of the award program” there is no basis to believe that Congress had intended for “disparate treatment based purely on the happenstance of which agency the individual reported to first.”

Whether the Second Circuit will find the SEC’s new argument persuasive remains to be seen.  If the Second Circuit adopts the SEC’s position, this could lead to a split with the Fifth Circuit, which could lead to a U.S. Supreme Court decision.

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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 Forbes.com. 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.