Close X

Attorney Spotlight

How does Eli Richardson's past work with the federal government inform his client interactions? Find out more>

Search

Close X

Experience

Search our Experience

Experience Spotlight

In June 2016, AmSurg Corp. and Envision Healthcare Holdings, Inc. (Envision) announced they have signed a definitive merger agreement pursuant to which the companies will combine in an all-stock transaction. Upon completion of the merger, which is expected to be tax-free to the shareholders of both organizations, the combined company will be named Envision Healthcare Corporation and co-headquartered in Nashville, Tennessee and Greenwood Village, Colorado. The company's common stock is expected to trade on the New York Stock Exchange under the ticker symbol: EVHC. Bass, Berry & Sims served as lead counsel on the transaction, led by Jim Jenkins. Read more.

AmSurg logo


Close X

Thought Leadership

Enter your search terms in the relevant box(es) below to search for specific Thought Leadership.
To see a recent listing of Thought Leadership, click the blue Search button below.

Thought Leadership Spotlight

Inside the FCA blogInside the FCA blog features ongoing updates related to the False Claims Act (FCA), including insight on the latest legal decisions, regulatory developments and FCA settlements. The blog provides timely updates for corporate boards, directors, compliance managers, general counsel and other parties interested in the organizational impact and legal developments stemming from issues potentially giving rise to FCA liability.

Read More >

Courts Hold That Dodd-Frank Does Not Protect Foreign Whistleblowers From Retaliation

Publications

November 8, 2013

Few portions of the Dodd-Frank Wall Street Reform and Consumer Protection Act ("Dodd-Frank") have received as much attention and publicity as the whistleblower incentives and protections. As we described in earlier Alerts,1 whistleblowers who provide original information of violations of the Commodity Exchange Act or the Securities Exchange Act are protected from retaliatory employment decisions based on the whistleblower reports. If a whistleblower tip leads to a monetary recovery in excess of $1 million, the whistleblower is entitled to a bounty of between 10% and 30% of the amount collected from the violator.2

It has been clear since Dodd-Frank's enactment that whistleblower incentives and protections apply to reports of suspected Foreign Corrupt Practices Act ("FCPA") violations.3 For example, if an employee in Manhattan reports to the SEC that his company is violating the FCPA's internal controls provisions, that employee may be eligible for the whistleblower incentives and protections. However, two U.S. District Courts recently have indicated that the anti-retaliation protections would not apply if the same report came from an employee outside the U.S., even when the employee is a U.S. citizen assigned to work for a U.S. company in a foreign country.4

Both decisions were largely based on the U.S. Supreme Court's decision in Morrison v. National Australia Bank Ltd., handed down about a month before President Obama signed Dodd-Frank, which reaffirmed a "longstanding principle of American law" that "legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States."5 In other words, "[w]hen a statute gives no clear indication of an extraterritorial application, it has none."6

Although the recent federal district court decisions make it difficult for whistleblowers to make a case of extraterritorial retaliation, the law in this area is continuing to develop and different facts could yield different results. In the interim, robust compliance and internal reporting procedures, combined with strong documentation of non-retaliatory reasons for adverse employment decisions, may help companies avoid becoming the next test case. Our attorneys have substantial experience implementing and auditing corporate compliance protocols, and have defended anti-retaliation suits in a variety of contexts. We welcome the opportunity to provide guidance and advice on the evolving hazards of the Dodd-Frank whistleblower provisions.

________________________________________

1  See, e.g., New Law Provides FCPA Whistleblower Bounties; Latest Developments and Compliance Tips (July 21, 2010); Significant Whistleblower Incentives and Protections in the Dodd-Frank Wall Street Reform and Consumer Protection Act (July 22, 2010); SEC Seeks Comments on Proposed Whistleblower Rules Under Dodd-Frank (Nov. 11, 2010); Major Developments Imminent Regarding the SEC's Dodd-Frank Whistleblower Reward and Protection Program (Apr. 8, 2011); SEC Releases First Report on Dodd-Frank Whistleblower Program (Nov. 30, 2011)
2  Dodd-Frank § 748, codified at 7 U.S.C. § 26; Dodd-Frank § 922, codified at 15 U.S.C. § 78u-6.
3  New Law Provides FCPA Whistleblower Bounties; Latest Developments and Compliance Tips (July 21, 2010).
4  Meng-Lin Liu v. Siemens A.G., 2013 U.S. Dist. LEXIS 151005 (S.D.N.Y. Oct. 21, 2013); Asadi v. G.E. Energy (USA), LLC, 2012 U.S. Dist. LEXIS 89746 (S.D. Tex. June 28, 2012), aff’d on other grounds, 720 F.3d 620 (5th Cir. July 17, 2013). Still, SEC regulations may permit foreign private whistleblowers to recover bounties. See 17 C.F.R. § 240.21F-8.
5  Morrison v. Nat’l Austl. Bank Ltd., 130 S. Ct. 2869, 2877 (2010) (internal quotation marks and citations omitted).
6  Id. at 2878. In response to Morrison, Congress added a provision to Dodd-Frank permitting extraterritorial jurisdiction for SEC enforcement actions. Dodd-Frank § 929P(b), codified at 15 U.S.C. § 77v(c). Congress also required the SEC to undertake a study on extraterritorial private rights of action, and the SEC completed the study in April 2012. Dodd-Frank § 929Y; see also Securities and Exchange Commission, Study on the Cross-Border Scope of the Private Right of Action Under Section 10(b) of the Securities Exchange Act of 1934 (April 2012).


Related Professionals

Related Services

Notice

Visiting, or interacting with, this website does not constitute an attorney-client relationship. Although we are always interested in hearing from visitors to our website, we cannot accept representation on a new matter from either existing clients or new clients until we know that we do not have a conflict of interest that would prevent us from doing so. Therefore, please do not send us any information about any new matter that may involve a potential legal representation until we have confirmed that a conflict of interest does not exist and we have expressly agreed in writing to the representation. Until there is such an agreement, we will not be deemed to have given you any advice, any information you send may not be deemed privileged and confidential, and we may be able to represent adverse parties.