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.
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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).