Berman v. Neo@Ogilvy LLC, No. 14-4626 (2d Cir. 2015)Annotate this Case
Plaintiff appealed the district court's summary judgment dismissal of his suit against defendants. At issue is the whistleblower protection provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111-203, Title IX, 922(a), 124 Stat. 1376, 1841, which added section 21F to the Exchange Act of 1934, 15 U.S.C. 78u-6. The SEC issued a regulation to clarify that, for the purposes of the employment retaliation protections provided by Section 21F, an individuals's status as a whistleblower does not depend on adherence to the reporting procedures specified in Exchange Act Rule 21F-9(a). The court concluded that, under SEC Rule 21F-2(b)(1), plaintiff is entitled to pursue Dodd-Frank remedies for alleged retaliation after his report of wrongdoing to his employer, despite not having reported to the Commission before his termination. Accordingly, the court reversed the judgment of the district court and remanded for further proceedings. On remand, the district court will have an opportunity to consider the R&R’s recommendation to dismiss, without prejudice to amendment, for lack of a sufficient allegation of a termination entitled to Dodd-Frank protection, and any other arguments made by defendants in support of their motion to dismiss.