On March 1, 2017, the District of Maryland dismissed a Dodd Frank whistleblower retaliation claim because the plaintiff failed to allege that he had complained directly to the SEC about a violation of securities laws, and dismissed the plaintiff’s SOX whistleblower retaliation claim because the complaint did not allege that the employer was a publically traded company. Olekanma v. Wolfe, No. 15-0984 (D. Md. March 1, 2017).
Samuel Olekanma, a corrections officer with the Maryland Department of Public Safety and Correctional Services, complained internally about, among other things, alleged racketeering, extortion, and sexual harassment, and asserted that he was retaliated against for making those complaints. Plaintiff filed a complaint asserting whistleblower retaliation claims under SOX and Dodd Frank. Defendants moved to dismiss the complaint.
The court granted Defendants’ motion to dismiss the SOX and Dodd Frank whistleblowing claims. First, citing to the Fifth Circuit’s decision in Asadi v. G.E. Energy (USA), LLC, 720 F.3d 620 (5th Cir. 2013) (we have blogged about the Asadi decision and whether internal complaints are covered by Dodd Frank’s anti-retaliation protections, including here and here), the court dismissed the Dodd Frank claim because Plaintiff failed to allege that he had reported information relating to a violation of securities laws directly to the SEC. The court also dismissed Plaintiff’s SOX claim because he failed to allege that his employer – a state agency – was a publically traded company.
Who qualifies as a Dodd Frank “whistleblower” continues to be a divisive issue amongst district courts. This is the second district court within the Fourth Circuit to follow Asadi, and while the Fourth Circuit has yet to weigh in on the issue, Olekanma is a welcomed advancement for employers within that Circuit.