Somers v. Digital Realty Trust, No. 15-17352 (9th Cir. 2017)Annotate this Case
This appeal relates to a last-minute addition to the anti-retaliation protections of the Dodd-Frank Act (DFA), Pub. L. No. 111-203, 124 Stat. 1376, to extend protection to those who make disclosures under the Sarbanes-Oxley Act and other laws, rules, and regulations. 15 U.S.C. 78u-6(h)(1)(A)(iii). At issue was whether, in using the term "whistleblower," Congress intended to limit protections to those who come within DFA's formal definition, which would include only those who disclose information to the SEC. If so, it would exclude those, like plaintiff here, who were fired after making internal disclosures of alleged unlawful activity. The Second Circuit, viewing the statute itself as ambiguous, applied Chevron deference to the SEC's regulation. The court agreed with the district court, and followed the Second Circuit's approach, that the regulation was consistent with Congress's overall purpose to protect those who report violations internally as well as those who report to the government. The court explained that this intent was reflected in the language of the specific statutory subdivision in question, which explicitly references internal reporting provisions of Sarbanes-Oxley and the Securities Exchange Act of 1934, 15 U.S.C. 78a et seq. Therefore, the court concluded that the SEC regulation correctly reflected congressional intent to provide protection for those who make internal disclosures as well as to those who make disclosures to the SEC. Accordingly, the court affirmed the judgment.
The court issued a subsequent related opinion or order on April 11, 2018.