cd calOn September 8, 2015, the United States District Court for the Central District of California dismissed a whistleblower retaliation claim, ruling that Dodd-Frank’s anti-retaliation provision only protects whistleblowers who provide information to the SEC.  The court’s decision (which was issued two days before the Second Circuit’s decision in Berman v. Neo@Ogilvy) demonstrates that courts continue to be divided about the scope of Dodd-Frank’s anti-retaliation provision.


Plaintiff Jennifer Davies, a former labor and employment attorney for Defendant Broadcom Corp., filed suit against the Company after her employment was terminated in March 2014.  Plaintiff asserted ten claims against the Company, including a whistleblower retaliation claim under Dodd Frank, 15 U.S.C. § 78u-6.  Plaintiff did not allege that she ever reported any securities law violations to the SEC.  Accordingly, the Company moved to dismiss Plaintiff’s whistleblower claim on the grounds that she does not qualify as a “whistleblower” under Dodd-Frank.

The Court’s Ruling

In dismissing Plaintiff’s whistleblower claim, the district court ruled that Dodd-Frank unambiguously provides that only employees who communicate with the SEC about securities laws violations are “whistleblowers.”  The court rejected the Plaintiff and SEC’s arguments that requiring an individual to report to the SEC to qualify as a “whistleblower” renders Dodd-Frank’s anti-retaliation provision “superfluous.”  Rather, the court held that the anti-retaliation provision describes what is protected, not who, and that it is “entirely plausible that Congress meant to protect from retaliation only those individuals who report to the SEC,” noting that “[p]erhaps, for example, Congress meant to limit frivolous retaliation claims by disgruntled employees by requiring them to allege something more than internal reporting–an allegation easily made but not easily discredited.”  Accordingly, the court declined to defer to the SEC’s rule expanding the scope of Dodd-Frank to also protect employees who complain about securities laws to their employer, holding that the SEC’s rule “is not a valid exercise of its authority.”


The court’s decision only enhances the uncertainty for Dodd-Frank litigants in California.  In fact, in July 2015 the Northern District of California in Somers v. Digital Realty Trust, Inc. issued a contrary opinion — holding that despite Dodd-Frank’s clear definition of “whistleblower,” the statute’s legislative history suggests that the statute’s use of the term “whistleblower” was an apparent oversight by Congress.  Moreover, as we recently reported, on September 10, 2015, the Second Circuit similarly held that internal complaints are protected under Dodd-Frank thereby creating a split with the Fifth Circuit, which held in Asadi v. G.E. Energy (USA) LLC, that the statute’s definition of whistleblower is clear.  It remains to be seen how district courts outside of the Second and Fifth Circuits will construe the scope of Dodd-Frank’s whistleblower provision.  As always, we will keep our loyal readers up-to-date on the state of the law.

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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.