Supreme Court wary about widening
Send a link to a friend
[November 29, 2017]
By Andrew Chung
WASHINGTON (Reuters) - Conservative and
liberal U.S. Supreme Court justices on Tuesday appeared reluctant to
broaden protections for corporate insiders who blow the whistle on
securities law violations or fraud by their companies.
During an hour-long argument in the case, several justices signaled that
they believed the 2010 Dodd-Frank Wall Street reform law at the center
of the dispute does not protect those who report the violations only
internally instead of to the U.S. Securities and Exchange Commission.
The case involves Digital Realty Trust Inc's <DLR.N> appeal of a lower
court ruling in favor of a fired executive, Paul Somers, after he
complained internally about alleged misconduct by his supervisor but
never reported the matter to the SEC.
The case will determine the scope of the shield against employer
retaliation provided to whistleblowers under the Dodd-Frank law. A
ruling by the nine justices favoring Digital Realty could deter
individuals from reporting misconduct to management and potentially
spare companies from certain whistleblower lawsuits.
The San Francisco-based real estate investment trust company, which owns
and develops data centers, said the Dodd-Frank law explicitly defined a
whistleblower as someone who provides information to the SEC, and
therefore does not cover Somers.
Many of the justices' questions on Tuesday indicated they agreed that
the text of the law is clear, leaving little room for them to interpret
it more expansively.
Liberal Justice Elena Kagan said Congress probably did not mean to limit
protections through the law's definition of whistleblower, but added,
"It says what it says."
"How much clearer could Congress have been?" conservative Justice Neil
Liberal Justice Ruth Bader Ginsburg noted that the court normally
follows statutory definitions unless it leads to an absurd result.
SEC rules adopted in 2011 bar corporate employers from retaliating
against whistleblowers who try to report allegations of securities law
violations or fraud. They provide the SEC the power to offer monetary
awards to whistleblowers whose tips lead to successful enforcement
Somers and President Donald Trump's administration argued that
whistleblower protections must extend to those who speak up internally
in order to encourage people to report misconduct without fear of being
[to top of second column]
U.S. Supreme Court is seen in Washington, U.S., November 27, 2017.
Liberal Justice Stephen Breyer said people left unprotected by the
Dodd-Frank law still would have whistleblower protection under
another federal law called the Sarbanes-Oxley Act of 2002, but it
offers a shorter time frame for filing a whistleblower lawsuit.
Daniel Geyser, Somers' attorney, said his client missed that
deadline and added that not everyone "who's not a lawyer" is aware
of all their whistleblower options under federal law.
Geyser noted that the Dodd-Frank whistleblower provisions were
needed because after the 2008 financial crisis, "Congress recognized
that Sarbanes-Oxley had been ineffective in getting lawyers and
auditors and other employees to report internally."
Somers, who worked from 2010 to 2014 as a portfolio-management vice
president at Digital Realty, said he was fired because of
allegations that he reported to senior management that his
supervisor had eliminated some internal controls, hid major cost
overruns and granted unsubstantiated payments to friends, according
to court papers.
He sued in 2014, saying he was protected from retaliation as a
whistleblower under the Dodd-Frank law.
A federal judge refused the company's bid to quash his claim, saying
the law covered a wide array of disclosures by whistleblowers, not
just those who report to the SEC. The San Francisco-based 9th U.S.
Circuit Court of Appeals upheld the ruling in March, and Digital
Realty appealed to the Supreme Court.
The Trump administration in a brief said that Digital Realty's
interpretation of the law would weaken internal corporate compliance
programs and "substantially diminish the retaliation prohibition's
A ruling is due by the end of June.
(Reporting by Andrew Chung; Editing by Will Dunham)
[© 2017 Thomson Reuters. All rights
Copyright 2017 Reuters. All rights reserved. This material may not be published,
broadcast, rewritten or redistributed.