Does Dodd-Frank protect foreign whistle-blowers?
In the first full year of operation for the Securities and Exchange Commission’s Dodd-Frank whistle-blower program, the agency received 324 tips from whistle-blowers working outside of the United States – almost 11 percent of all the whistle-blower reports received by the SEC. If those tips eventually result in sanctions of more than $1 million, the SEC whistle-blowers will be in line for bounties. But if they’re fired by their companies for disclosing corporate wrongdoing, they may not be able to sue under Dodd-Frank because the law’s anti-retaliation protection for whistle-blowers does not specify that it extends overseas. And as you know, the U.S. Supreme Court’s 2010 ruling in Morrison v. National Australia Bank holds that civil laws should be presumed not to apply overseas unless they say otherwise.
Morrison’s application to Dodd-Frank’s whistle-blower protection is playing out right now in federal court in Manhattan, in a retaliation suit brought by a Taiwanese compliance officer for a Chinese subsidiary of Siemens. (The Wall Street Journal was the first to report on the case.) Meng-Lin Liu and his lawyer at Kaiser Saurborn & Mair allege that after Liu reported his suspicions to Siemens’ CFO for Healthcare in China, claiming that the company was violating the Foreign Corrupt Practices Act by engaging in a kickback scheme involving the sale to public hospitals of medical imaging equipment, he was dismissed from his job. In January 2013, Liu sued Siemens under Dodd-Frank for double his back pay.
Siemens’ lawyers at Kirkland & Ellis raised two defenses in the company’s motion to dismiss the suit. Liu wasn’t entitled to protection under Dodd-Frank, Siemens said, because he had initially reported his concerns internally, and not to the SEC. And moreover, he wasn’t covered by Dodd-Frank’s anti-retaliation provisions because they don’t specifically extend abroad.
The internal reporting issue, which has already been litigated in several whistle-blower suits, stems from the mismatch between Sarbanes-Oxley’s up-the-chain mandate and Dodd-Frank statutory language defining whistle-blowers as those who pass along tips to the SEC. As I’ve reported, the 5th Circuit Court of Appeals held last month that if whistle-blowers report first to their bosses and not to the SEC, they can’t sue under Dodd-Frank’s anti-retaliation provisions. That finding bucked decisions by four federal trial courts, including two in New York and one in Connecticut, that the SEC’s interpretation of Dodd-Frank expanded the definition of a whistle-blower beyond the statutory language. Either way, the issue shouldn’t have much impact on future whistle-blowers, who can easily surmount any obstacles the 5th Circuit decision raises by reporting their concerns first to the SEC.
Whistle-blowers do not, on the other hand, have the power to redraft Dodd-Frank, so if Siemens is correct about Morrison barring Dodd-Frank protection for foreign tipsters, potential whistle-blowers from overseas should be concerned about having no recourse if they’re fired. The only court that has previously ruled on the extraterritorial application of Dodd-Frank’s anti-retaliation provisions is a trial judge in federal court in Houston, who cited Morrison in dismissing claims against GE Energy by a whistle-blower based in Amman, Jordan. When that case reached the 5th Circuit, however, the appellate panel homed in on the whistle-blower’s report to his bosses (and not the SEC). The panel didn’t reach the more potentially consequential question of Dodd-Frank protection for foreign whistle-blowers.
So there’s no precedent to bind the court overseeing the Siemens case, U.S. District Judge William Pauley. Liu, the whistle-blower, urged Pauley in his opposition to Siemens’ motion to dismiss to look at the entirety of Dodd-Frank’s whistle-blower provisions, not just the piece of the law that focuses on their protection from retaliation. “The plain language of the statute contains very broad language that includes all employees, both foreign and domestic,” Liu’s brief said. “By expressly extending extraterritorial jurisdiction for SEC enforcement actions – and concurrently providing anti-retaliation whistleblower protection to whistleblowers who provide information to the SEC that is used in such enforcement actions – Congress evidenced a clear intent to protect whistleblowers located overseas.”
In a reply brief filed last week, Siemens contends that Liu can’t pull language from one part of the law to extend the scope of another part. “(Liu) improperly tries to borrow the extraterritorial reach of the bounty program provision to supply the express extraterritorial authorization that is missing from the wholly separate anti-retaliation provision,” the brief says. “Whether the SEC has jurisdiction to pursue foreign fraud cases or to award bounties to foreign whistleblowers is not at issue here. Rather, the question is whether the anti-retaliation provision reaches extraterritorial conduct. That part of the law is set out in its own subsection of the Dodd-Frank Act and does not mention any extraterritorial application at all.”
It’s no secret that Congress was a bit hasty in drafting Dodd-Frank. One example is the tension between the whistle-blower reporting dictates in Dodd-Frank and Sarbanes-Oxley. Another is Dodd-Frank’s attempt to address the Supreme Court’s Morrison ruling by extending the power of the SEC and the Justice Department to act on foreign securities violations. The law was written to give federal courts jurisdiction over such matters but not to preclude their dismissal on Morrison grounds, which has led academics, practitioners and (as of last week) one federal judge to question whether lawmakers botched it. Given that history, there’s a good possibility that in drafting Dodd-Frank, Congress meant to protect the overseas whistle-blowers to whom it extended the offer of bounties, but neglected to do so explicitly.
Will Judge Pauley in the Siemens case infer congressional intent from Dodd-Frank’s bounty provisions? Or will he look only at the language of the anti-retaliation provisions? Hundreds of whistle-blower tips could rest on the answer.
Liu counsel David Mair didn’t return my call. Siemens counsel Brant Bishop of Kirkland declined to comment.
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