Amicus Curiae Brief — Digital Realty Trust, Inc. v. Somers, 138 S. Ct. 43 (2017) (No. 16-1276)

No. 16-1276

Supreme Court of the United States

DIGITAL REALTY TRUST, INC.,

Petitioner,

v.

PAUL SOMERS,

Respondent.

On PETITION FoR A Writ OF CERTIORARI TO THE

U.S. Court or APPEALS FOR THE NINTH Circurr

BRIEF OF THE CHAMBER OF COMMERCE

OF THE UNITED STATES OF AMERICA

AS AMICUS CURIAE IN SUPPORT

OF PETITIONER

KaTE COMERFORD Topp STEVEN J. PEARLMAN

Sreve P. LEHOTSKY Counsel of Record

JANET GALERIA Epwarp C. YOUNG

U.S. CHAMBER PROSKAUER Rose LLP

LITIGATION CENTER, INC. 70 W. Madison, Suite 3800

1615 H Street, N.W. Chicago, IL 60602

Washington, D.C. 20062 (312) 962-3550

(202) 463-5337 spearlman@proskauer.com

Counsel for Amicus Curiae

Libeary of Congee=

8 oes EL rery

i

TABLE OF CONTENTS

Page

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pe OE ete yg 6 lt «Sr ere ii

INTEREST OF AMICUS CURIAE .............54. }

INTRODUCTION AND SUMMARY OF THE

IES 65 oc awa e335 Nadpae es cawakernenetes 2

PINES 5 aire S6a'se Caw scd bers cen eedaseeNt: 3

I. The Ninth Circuit’s Decision Is Incorrect and

Deepens A Conflict Among The Circuits... .... 3

Il. The Ninth Circuit’s Decision Presents

An Issue of Exceptional Importance .......... 9

Be nee reer re an eraees eee 13

il

TABLE OF AUTHORITIES

Page

CASES

Ahmad v. Morgan Stanley & Co.,

2. Sapp. 34 401 G.IDN.Y. S014)... 2c cieeccss 8

Asadi v. G.E. Energy (USA), LLC,

720 F.3d 620 (6th Cir. 201%)... ........000. 3, 5, 6, 7

Banko v. Apple Tnc.,

20 F. Supp. 3d 749 (N.D. Cal. 2013) .............6. 7

Berman v. Neo@Ogilvy LLC,

OE Fe Bie Ge Cee SOD ons Wee scceesevesss 3,7

Bilski v. Kappos,

ee Oe Es ccaccehes ures edebetnean 1

Bullock v. BankChampaign, N.A.,

Se as CI ce cS ve itetas eaesdaeee en g

Bussing v. COR Clearing, LLC,

20 F. Supp. 3d 719 (D. Neb. 2014)................. 8

Connolly v. Remkes,

No. 14-ev-01344, 2014 WL 5473144

Se Se CU EE Sac oeapsucs vassncecs 7-8

Davies v. Broadcom Corp.,

130 F. Supp. 3d 1843 (C.D. Cal. 2015) ............. 6

ill

Deykes v. Cooper-Standard Auto., Inc.,

No. 16-ev-11828, 2016 WL 6873395

(E.D. Mich. Nov. 22, 2016). ..............

Dressler v. Lime Energy,

No. 14-cv-07060, 2015 WL 4773326

CRAs NEN SI MIND x -6.co so ew 6 oe wees Ss

Duke v. Prestige Cruises Int'l, Inc.,

No. 14-ev-23017, 2015 WL 4886088

(S.D. Fla. Aug. 14, 2015), appeal filed,

No. 16-cv-15426, 2015 WI. 4886088

tho Te ee ee

Egan v. TrudingScreen, Inc.,

No. 10-ev-8202, 2011 WL 1672066

2 Rok a |) A

Ellington v. Giacoumakis,

977 F. Supp. 2d 42 (D. Mass. 2013)........

Englehart v. Career Educ. Corp.,

No. 14-cv-444, 2014 WL 2619501

CEE 0 . Uilg OE on ccc nennceecers

Genberg v. Porter,

934 F. Supp. 2d 1094 (D. Colo. 2013), aff'd im

part on other grounds and dismissed in part,

566 Fed. App’x. 719 (10th Cir, 2014).......

Page

aTeT ere 6

sete bke 8

iv

Kansas v. Marsh,

EE RA SE a cet en vincvennngerecsssis

Khazin v. TD Ameritrade Holding Corp.,

No. 13-ev-4149, 2014 WL 940703 (D.N.J.

Mar. 11, 2014), aff'd on other grounds,

773 F.3d 488 (8d Cir. 2014) ..... 2. cece eee eee

Kramer v. Trauns—Lux Corp.

No. 11-ev-1424, 2012 WL. 4444820

ee ee ere

Kuhns v. Ledger,

202 F. Supp. 3d 433 (S.D.N-Y. 2016). ....-......

Lamb v. Rockweti Automation, Inc.,

No. 15-ev-1415, 2016 WL 4273210

(E.D. Wis. Aug. 12, 2016).............0..008:

Lutzeter v. Citigroup Inc.,

No. 14-cv-183, 2015 WL 7306443

Ci Se BGM o 6 ino wets cvewwakene

Murray v. UBS Sec., LLC,

No. 12-ev-5914, 2013 WL 2190084

GR ARES. SEM BAp MD oo cdverscecuseneces

Noliner v. S. Baptist Convention, Inc.,

852 F. Supp. 2d 986 (M.D. Tenn. 2012) ........

rr.

Olekanma. v. Wolfe,

No. 15-cv-0984, 2017 WL 784121

Cee ee NG a ok 6d weeeecinteces os

Peters v. LifeLock Inc.,

No. 14-ev-00576, 2014 WL 12544495

Ch Artes le Oe cee snes

Puffenbarger v. Engility Corp.,

151 F. Supp. 3d 661 (B.D. Va. 2015) ...........

Rosenblum v. Thomson Reuters (Mkts) LLC,

984 F. Supp. 2d 141 (S.D.N.Y. 2013)...........

Sarkisov v. Stonemor Partners L.P.,

No. 13-cv-04834, 2014 WL 12644016

Co IS: 6 a n dood cwewaane

Somers v. Digrttal Reality Trust, /nc.,

850 F.3d 1045 (9th Cir. 2016). ................

Verble v. Morgan Stanley Smith Barney, LLC,

148 F. Supp. 3d 644 (.D. Tenn. 2015), affd on

other grownds, No. 15-ev-6397, 2017 WL 129040

(6th Cir. Jan. 13, 2017), cert. dented, No. 16-cv-

946, 2017 WL 434012 (U.S. Mar. 20, 2017) .....

Verfuerth v. Orion Hnergy Sys., Inc.,

65 F. Supp. 3d 640 (E.D. Wis. 2014)...........

oe

Page

Wadler v. Bio-Rad Labs., lie.,

141 F. Supp. 3d 1005 (N.D. Cal. 2015), motzon

to certify appeal denied, No. 15-cv-02356,

2015 WL 8753292 (N.D. Cal. Dee. 15, 2015)........ 7

Wagner v. Bank of Am. Corp.,

No. 12-ev-00381, 2013 WL 3786643

(D. Colo. July 19, 2013), affd on other grounds,

571 F. App’x 698 (10th Cir. 2014) ......... 2.64055. 7

Wiggins v. ING U.8., Inc.,

No. 14-ev-01089, 2015 WL 8779559

Co ED, hc cad ee b occu vi¥ae we dwn 7

Yang v. Navigators Grp., Inc.,

18 F. Supp. 3d 519 (S.D.N.Y. 2014) ................ 8

Yates v. United States,

Se EES os cic eeu n ox boekn cde crews vie 1]

STATUTES

aE cine ine cnslnwe hep anseemad 3, 3, 6, 7

Me OA eh Ris obs ce kia curv resceas 2,4, 5,6

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Pe Gees SE oisiion wha eke ee beeen kre ekea' li

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16 U.S.C. § T6u-GORMI MD) . 02 ce cccccenncscccsens 5

1G UBL. § THa-CO I) oc ccc cvvenssesannneny 5

IB. UBL. § TOn-CID s os cc ccocsecnsuunueenan

1B URAL, § 1GRCAD ono dsce vk aces neeneeoeeeee 9

18 U.S.C. § ISRGAGD ioe civievncetsecsberceeeeeene 9

18 U.S. § ICAO i cess scsuvevespasaul 10

1S U.S. § IGIGAIRIMAD oo ioe cicesdsvecs caeneues 10

18 UBL. § 1GIGACIIED ioc cccndcackescs¥axeu 10

18 U.S.C. § UAAGIGRAAD. oo cccecvctetsvaenenmona 10

18 U.S.C. § 1GAGAGIUIERD. «ooo cannsacwatnewenel 10

1S UBC. 3 IGA AGGIEA...< 06 sicwnideuescotdeupenane 10

49 U.S.C. § SEED os se ec nt ch pn ctnen tae 10

OTHER AUTHORITIES

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UIE ELE ccc aces cccccscecvreveccees 10

156 Cong. Rec. $5929 (daily ed. July 15, 2010)......... 4

H.R. 4173, 11]th Cong. § 922(e)(1) (2010) ............ 10

eee 3

ncaa Gwewesncsecdeesecccese l

re awe eecectetestene 1

Mark J. Oberti, Employment Law: Recent

Developments in Retaliation and

Whistleblowing Law, 69 The Advocate 31 (2014). . .11

Occupational Safety and Health Administration,

CPL 02-03-007, Whistleblower Investigations

ee ee Wicd ees ccevecscesers 12

]

INTEREST OF AMICUS CURIAE'

The Chamber of Commerce of the United States

of America is the wor!d’s largest business federation.

It represents 300,000 direct members and indirectly

represents the interests of more than three million

companies and professional organizations of every size, in

every industry sector, from every region of the country.

An important function of the Chamber is to represent

the interests of its members in matters before Congress,

the Executive Branch, and the courts. To that end, the

Chamber regularly files amicus ewrtae briefs in cases that.

raise issues of concern to the Nation’s business community.

The Chamber's members have a strong interest in the

application of the “whistleblower” provisions of the Dodd-

Frank Wall Street Reform and Cunsumer Protection Act

of 2010 (““Dodd-Frank Act” or “Act”) in accordance with

the terms of the statute and the purposes of the Act,

and in the speedy dismissal of whistleblower retaliation

claims that fall outside the Act’s scope. Meritless claims

and expanding litigation costs have a direct impact on the

viability, growth, and survival of businesses nationwide.

1. Pursuant to this Court’s Rule 37.2(), all partics have

consented to the filing of this brief. Counsel of record for all parties

received notice at least 10 days prior to the due date of Amicus

Curiae’s intention to file this brief. Pursuant to Rule 37.6, Amicus

Curiae atfirms that no party or party’s counsel authored this brief

in whole or in part. And nu party, party’s counsel, or other person

other than Amicus Curiae, iis counsel, and its members made a

monetary contribution intended to fund this brief’s preparation

or subrnission.

2

The interpretation of the Dodd-Frank Act espoused

by the Ninth Circuit in this case would greatly expand the

number of employees authorized to pursue the enhanced

remedies of the Act, and the period of time in which they

may sue for alleged retaliation, without yielding the law

enforcement benefits Congress intended when it enacted

a “bounty” and heightened protections for persons who

complain to the Securities and Exchange Commission.

The carefully crafted procedures established in 2002

in the Sarbanes-Oxley Act would become largely moot

and obsolete under the Ninth Circuit’s interpretation,

depriving Chamber members of the limitations and

protections established by that earlier law.

INTRODUCTION AND SUMMARY

OF THE ARGUMENT

The l)odd-Frank Act defines “whistleblower” to mean

“any individual who provides, or 2 or more individuals

acting jointly who provide, information relating to a

violation of the securities laws to the Commission.” 15

U.S.C. § 78u-6(a\6) (emphasis added). This case presents

the question whether an individual] who does not satisfy

the express statutory definition of “whistleblower” may

nevertheless seek relief under the Act’s anti-retaliation

protections for whistleblowers.

This issue is important, frequently recurring, and the

subject of a split among the federal courts of appeals. The

Fifth Circuit has correctly held that the Dodd-Frank Act’s

anti-retaliation provision protects only “whistleblowers” —

i.e., individuals who provide information relating to a

violation of the securities laws to the Securities and

Exchange Commission (“SEC” or the “Commission”.

3

See Asadi v. G.E. Energy (USA), LLC, 720 F.3d 620 (5th

Cir. 2013). By contrast, divided panels of the Ninth and

Second Circuits have held that the Dodd-Frank Act’s

anti-retaliation provision protects all those who report to

the SEC and those who report internally. See Somers v.

Digital Realty Trust, Inc., 850 F.3d 1045 (9th Cir. 2016);

Berman v. Nea@Ogtivy LLC, 801 F.3d 145 (2d Cir. 2015).

The interpretation of the Dodd-F rank Act espoused by

the Ninth and Second Circuits has profound implications

for employers across the country and in every industry.

If allowed to stand, it would severely disrupt the carefully

constructed anti-retaliation programs established by

Congress, and open the door to countless lawsuits that

Congress never intended Dodd-F rank to cover.

For these and additional reasons discussed below, this

Court should grant the petition for certiorari and reverse

the decision below.

ARGUMENT

I. The Ninth Cireuit’s Decision Is Incorrect and

Deepens A Conflict Among The Circuits

The Dodd-Frank Act sought to further enforeement

of the securities laws by establishing a “bounty” for

“whistleblowers” who provide information to the SEC that

leads to successful enforcement actions. 15 U.S.C. § 78u-6;

see S. Rep. No. 111-176, at 110 (2010) (“The Whistleblower

Program aims to motivate those with inside knowledge to

come forward and assist the Government to identify and

prosecute persons who have violated securities laws and

recover money for victims of financial fraud.”’).

4

A “whistleblower” is defined in the Act as:

[A|jny individual who provides, or 2 or more

individuals acting jointly who provide,

information relating to a violation of the

securities laws to the Commission, in a manner

established, by rule or regulation, by the

Commission.

15 U.S.C. § 78u-6(a)(6) (emphasis added).

Whistleblowers who assist in successful enforeement

actions are entitled to recover 10-30% of “what has been

collected of the monetary sanctions imposed in th[at]

action.” § 78u-6(b)(1).*

In addition to granting this bounty to “whistleblowers,”

the Act also protects them from retaliation, providing:

No employer may discharge, demote, suspend,

threaten, harass ... or in any other manner

discriminate against[{] a whistleblower in the

terms and conditions of employment because

of any lawful act done by the whistleblower—-

(i) in providing information to the Commission in

accordance with this section;

2. See 156 Cong. Ree. 85929 (daily ed. July 15, 2010)

(statement of Sen. Chris Dodd) (“The Congress intends that the

SEC make awards that are sufficiently robust to motivate potentia!

whistleblowers to share their information and to overcome the

fear of risk of the loss of their positions. Unless the whistleblowers

come forward, the Federal Government will not know about the

frauds and miseconduct.”).

5

(ii) in initiating, testifying in, or assisting in any

investigation or judicial or administrative action

of the Commission based upon or related to such

information; or

(iii) in making disclosures that are required or

protected under the Sarbanes-Oxley Act of 2002

(15 U.S.C. § 7201 et seq.), this chapter, including

section 78j-1(m) of this title, section 1513(e) of

Title 18, and any other law, rule, or regulation

subject to the jurisdiction of the Commission.

§ 78u-6(h)(1)(A) (emphasis added). Whistleblowers who

experience retaliation in violation of this provision may

sue directly in federal district court as many as 10 years

after the retaliatory action, and monetary damages are

doubled. § 78u-6(h)(1)(B)(i), (h)(1)(B)Gii), (AYC)(C) Gi).

The language of Section 78u-6 unambiguously

provides a cause of action only to individuals who have

provided information to the SEC. ‘I'he statute clearly

defines “whistleblowers” as those who “provide| |

information relating to a violation of the securities laws

to the Commission, in a manner established” by the

Commission’s whistleblower “bounty” rules. § 78u-6(a)(6).

And the Fifth Circuit correctly applied the statute

according to its plain terms in Asudi v. G.E. Energy

(USA), LLC, 720 F.3d 620 (5th Cir. 2013).

In Asadi, an employee made an internal report

reyarding a potential violation of securities laws, but did

not report the potential violation to the SEC. Jd. at 621.

‘The employee was later discharged and filed a complaint

6

in district court, alleging a violation of Dodd-Frank’s anti-

retaliation provision. Jd. The district court dismissed the

complaint, but did not reach the issue regarding the scope

of Dodd-F rank’s anti-retaliation provision. Jd.

The Fifth Circuit affirmed, holding that Dodd-Frank’s

anti-retaliation provision protects only individuals who

report information to the SEC. The court explained

that. the “whistleblower” definition in Section 78u-6(a)(6)

establishes “who is protected,” while the anti-retaliation

provision in Section 78u-6(h)(1)(A) specifies “what

actions” taken by that person are protected. /d. at 624-

26. The court stressed that any other reading of Section

78u-6 “would read the words ‘to the Commission’ out

of the definition of ‘whistleblower’ for purposes of the

whistleblower-protection provision.” /d. at 628, The court

declined to defer to the SEC’s regulation because the

statute is “unambiguous },” and because the regulation

“redefines ‘whistleblower’ more broadly” than the statute.

Id. at 629-30.*

3. At least twelve district courts have followed the Fifth

Circuit’s interpretation. See Olekanma v. Wolfe, No, 15-ev-0984,

2017 WI. 784121, at *3 (D. Md. Mar. 1, 2017); Deykes v. Cooper-

Standard Auto., Inmc., No. 16-ev-11828, 2016 W L 6873395, at *2-4

(E.D. Mich. Nov. 22, 2016); Lamb v. Rockwell Automation, Inc.,

No. 15-cv-1415, 2016 WL 4273210, at *3-4(E.D. Wis. Aug. 12, 2016);

Puffenburger v. Engility Corp., 151 F. Supp. 3d 651, 663-65 (F..D.

Va. 2015); Verble v. Morgan Stanley Smith Barney, LLC, 148 F.

Supp. 3d 644, 640 (#.D. Tenn. 2015), aff'd on other grounds, No.

15-ev-6397, 2017 WL 129040 (6th Cir. Jan. 13, 2017), cert. denied,

No. 16-ev-946, 2017 WL 434012 (U.S. Mar. 20, 2017); Davies v.

Broadcom Corp., 130 F. Supp. 3d 1343, 1348-49 (C.D. Cal. 2015);

Duke v. Prestige Cruises Int'l, Inc., No. 14-cv-23017, 2015 WL

4886088, at *3 (8.1. Fla. Aug. 14, 2015), appeal filed, No. 16-cv-

15426, 2015 WI. 4886088 (llth Cir. Aug 11, 2016); Verfuerth v.

7

The Seeond and Ninth Circuits have expressly

rejected Asadi, deviating from the plain terms of the

statute. In Berman v. Neo@Ogilvy LLC, a divided panel

of the Second Circuit held that Section 78u-6 is ambiguous

and deferred to the SEC’s regulation extending protection

to anyone who makes a report, whether the report is made

internally or to the SEC. 801 F.8d at 146 (concluding

that “the pertinent provisions of Dodd-Frank create

a sufficient ambiguity to warrant our deference to the

SEC’s interpretive rule”), In the decision below, a divided

panel of the Ninth Circuit went even further and held that

Dodd-Frank unambiguously compels the interpretation

adopted by the SEC. Somers, 850 F.3d at 1047 (concluding

that “the SEC regulation correctly reflects congressional

intent to provide protection for those who make internal

disclosures as well as to those who make disclosures to

the SEC”).*

Orion Energy Sys., Inc., 65 F. Supp. 8d 640, 643-46 (E.D. Wis.

2014); Sarkisov v. Stonemor Partners L.P., No. 13-ev-04834, 2014

WL 12644016, at *3-4 (N.D. Cal. June 25, 2014); Anglehart »v.

Career Educ. Corp., No. 14-cv-444, 2014 WL 2619501, at *9 (M.D.

Fla, May 12, 2014); Banko v. Apple /nc., 20 F. Supp, 3d 749, 756-57

(N.D. Cal. 2013); Wagner v. Bank of Am. Corp., No. 12-ev-00381,

2013 WL 3786648, at *4-6 (D. Colo. July 19, 2013), aff'd on other

grounds, 571 F. App’x 698, (10th Cir, 2014),

4. Atleast eighteen district courts have followed the Second

and Ninth Circuits, See Kuhns v. Ledger, 202 F. Supp. 3d 433, 438

n.1 (S.D.N.Y. 2016); Wiggins v. ING US., Inc., No. 14-ev-01089,

2015 WL 8779559, at *1 (D. Conn. Dec. 15, 2015); Lutzeier ».

Citigroup Inc., No. 14-ev-188, 2015 WL 7306443, at *2 (B.D. Mo.

Nov. 19, 2015); Wadlerv. Bio-lad Labs., Inc., 141 F. Supp. 3d 1005,

1024-27 (N.D. Cal. 2015), motion to cerlify appeal denied, No. 15-

ev-02356, 2015 WI 8758292 (N.D. Cal. Dec. 15, 2015); Dressler v.

Lime Energy, No. 14-ev-07060, 2015 WL 417733826, at *6-16(D.N.J.

Aug. 13, 2015); Connolly v. Remkes, No. 14-ev-0'1344, 2014 WI.

8

The SEC and these Circuits misapprehend the

structure of the statute. In finding that the protections

of clause (iii) of the anti-retaliation provision extend

coverage to a wider class of persons than the Act’s

definition of “whistleblower,” they flip the statute's

language: their approach makes what ihe retaliation

was for determinative of who is protected, rather than

first determining who is protected under the statutory

definition of “whistleblower.” The “whistleblower”

definition governs clause (iii), not vice versa.

This circuit split should be resolved as speedily as

possible. The conflict between the Fifth Circuit on the

one hand, and the Second and Ninth Circuits on the other,

creates an uneven playing field for employers, subjecting

them to vastly different risks based on their geographic

5473144, at *4-6(N.D. Cal. Oct. 28, 2014); Peters v. LyeLock Inc.,

No, 14-cv-00576, 2014 WL 12544495, at *3-7 (D. Ariz. Sept. 19,

2014); Bussing v. COR Clearing, LLC, 20 F. Supp. 3d 719, 727-33

(D. Neb, 2014); Yang v. Navigators Grp., Inc., 18 F. Supp. 3d 519,

531-84 (S.D.N.Y. 2014); Khazin v. 7D Ameritrade Holding Corp.,

No. 18-ev-4149, 2014 WL 940703, at *3-6 (D.N.J. Mar. 11, 2014),

aff'd on other grounds, 773 V.3d 488 (38d Cir. 2014); Ahmad v.

Morgan Stanley & Co., 2 F. Supp. 3d 491, 496 n.5 (S.D.N.Y 2014);

Rosenblum v. Thomson Reuters (Mkts) LLC, 984 F. Supp. 2d 141,

146-48 (S.D.N_Y. 2013); Bllington v. Giacowmakis, 977 F. Supp. 2d

42, 44-46 (D. Mass. 2013); Murray v. UBS Sec., LLC, No. 12-ev-

5914, 2013 WL 2190084, at *3-7(S.D.N.Y. May 21, 2012); Genberg

v, Porter, 935 F. Supp. 2d 1094, 1106-07 (D. Colo, 2013), aff'd in

part on olhker yrounds and dismissed in part, 566 K’ed. App’x, 719

(10th Cir. 2014); Kramer v. Trans-Lux Corp., No. 1L-ev-1424, 2012

WL 4444820, at *4(D. Conn. Sept. 25, 2012); Nollner v. 8. Baptist

Convention, Inc., 852 F, Supp. 2d 986, 992-95 (M.D. Tenn. 2012);

Egan v. TradingSereen, Inc., No. 10-cv-8202, 2011 WL 1672066,

at *3-5 (S.D.N.Y. May 4, 2011).

9

location alone. See Bullock v. BankChampaign, N.A.,

133 8S. Ct. 1754, 1761 (2018) (“[1)]t is important to have a

uniform interpretation of federal law”); Kansas v. Marsh,

548 U.S. 163, 183 (2006) (Scalia, J., concurring) (“Our

principal responsibility .. . is to ensure the integrity

and uniformity of federal law”)). So long as the decision

below is left uncorrected, employers in the Second and

Ninth Circuits face the threat of liability for claims that

Congress never intended.

Il. The Ninth Circuit’s Decision Presents An Issue of

Exceptional Importance

The Ninth Circuit’s counter-textual interpretation

of the Dodd-Frank Act, if left to stand, wil! result in a

number of harmful consequences. Among them, it will

undermine the carefully constructed anti-retaliution

provisions and procedures of the Sarbanes-Oxley Act,

and impose unwarranted litigation costs on employers.

Less than 10 years before enacting the Dodd-Frank

Act, Congress established a comprehensive regime to

protect, among others, the “internal” whistleblowers that

the Ninth Circuit sought Lo cover with its reading of Dodd-

Frank. [n the Sarbanes-Oxley Act, Congress authorized

employees to file a complaint with the U.S. Department

of Labor (“DOL”) if they believe they have suffered

retaliation for reporting, internally or externally, mail

fraud, wire fraud, bank fraud, securities fraud, a violation

of any rule or regulation of the SEC, or any provision of

federal law relating to fraud against sharcholders. 18

U.S.C. § 1514 A(a)-(b). The complaint is investigated by the

Occupational Safety and Health Administration “OSHA”),

which renders findings and may order reinstatement of

10

an employee who has been improperly removed from his

or her position. 18 U.S.C. §§ 1514A(b)(2)(A), (@)(2)(A); 29

C.F.R. Part 1980,104.

Kither party may appeal OSHA’s decision to an

Administrative Law Judge (“ALJ”), who will permit

discovery, conduct a bench trial, and issue a decision that

may be appealed to the Administrative Review Board

(“ARB”). 29 C.F.R. Parts 1980.106, 107, 109, 110. An ARB

decision may be appealed to a federal court of appeals.

18 U.S.C. § 1514A(b)(2)(A); 49 U.S.C. § 42121(b)4). If a

final DOL decision does not issue within 180 days of the

employee's initial complaint, the complainant has the

option of removing the case to a federal district court,

where they may proceed de novo. 18 U.S.C § 1514A(b)(1)

(B).

The Sarbanes-Oxley regime imposes important

constraints. It provides for initial investigation by the

DOL, which can lead to the prompt termination of baseless

claims. Resolution within the Department is the preferred

outcome, although complainants may “kick-out” the case

to federal court in certain circumstances. The limitations

period is short—the Sarbanes-Oxley Act prescribed a 90-

day limitation period, which the Dodd-Frank Act extended

to 180 days. 18 U.S.C. § 1514A(b)(2)(1)); see H.R. 4173,

Lllth Cong. § 922(c)(1) (2010). Monetary relief is limited

to compensatory damages, which may include back pay,

litigation costs, and reasonable attorneys’ fees, § 1514A(c)

(2)(B)-(C).

[f claimants may proceed under the Dodd-F rank Act’s

whistleblower provision even when they do not meet its

definition of “whistleblower,” there will be a proliferation

11

of whistleblower litigation under the Dodd-Frank Act,

and the strictly cireumscribed scheme of the Sarbanes-

Oxley Act will be undermined. See Mark J. Oberti,

Kmployment Law: Recent Developments in Retaliation

and Whistleblowing Law, 69 The Advocate 31, 38 (2014)

(“Depending on how this conflict is resolved in various

jurisdictions, it could result in a dramatic reduction

of OSHA charges of SOX retaliation and a significant

increase in federa! court SOX litigation brought through

Dodd-Frank.”). Extending the statute of limitations

period to bring whistleblower-retaliation claims to 10

years from 180 days will significantly increase the number

of stale cases brought, as claimants who are timed-barred

under the Sarbanes-Oxley Act proceed under the Dedd-

Frank Act instead. Furthermore, even claimants who are

not otherwise time-barred will often prefer the double

damages available under the Dodd-F rank Act; certainly,

the plaintiffs’ bar will feel the inexorable pull of a greater

recovery.

That. plainly is not what Congress intended when it

narrowly defined “whistleblower” in the Dodd-I*rank Act

and simultaneously amended several features of the more

capacious Sarbanes-Oxley Act’s regime. It would make no

sense for Congress to retain a confined limitations period

for Sarbanes-Oxley Act claims, while simultaneously

giving those same claimants—on the same facts—as many

as 10 years to sue for the more generous relief available

under subsection 78u-6(h)(1). See Yates v. United States,

135 S. Ct. 1074, 1085 (2015) (“We resist a reading of [a

statute] that would render superfluous an entire provision

passed in proximity as part of the same Act.”); Bilski v.

Kappos, 561 U.S. 593, 607-08 (2010) “(T]he canon against

interpreting any statutory provision in a manner that

12

would render another provision superfluous . . . applies

to interpreting any two provisions in the U.S, Code, even

when Congress enacted the provisions at different times.”

(citation omitted)).

What is more, construing the Dodd-Frank Act to

provide a cause of action for a violation of the Sarbanes-

Oxley Act without a requirement to exhaust administrative

remedies deprives employers of the considerable benefits

that the Sarbanes-Oxley Act’s administrative scheme

provides, us proceeding through the DOL’s OSHA fosters

early settlements and dismissals. See Occupational Safety

and Health Administration, CPL 02-03-007, Whistleblower

Investigations Manual 6-12 to -13 (2016) (“Voluntary

resolution of disputes is often desirable, and investigators

are encouraged to actively assist the parties in reaching

an agreement, where appropriate. It is OSHA policy to

seek settlement. of all cases determined to be meritorious

prior to referring the case for litigation. furthermore,

at any point prior to the completion of the investigation,

OSHA will make every effort to accommodate an early

resolution of complaints in which both parties seek it.”).

13

CONCLUSION

Kor the foregoing reasons, the Chamber respectfully

requests that the Court grant the petition for a writ of

certiorari.

Respectfully submitted,

Kare Comerrorp Topp STEVEN J, PEARLMAN

Sreve P. Lexorsky Counsel of Record

JANET GALERIA Epwarp ©. Younc

U.S, CHAMBER PrRoskaubR Rose LLP

LitiGaTion CENTER, INC. 70 W. Madison, Suite 38800

1615 H Street, N.W. Chicago, LL 60602

Washington, D.C. 20062 (312) 962-3550

(202) 463-5337 spearlman@proskauer.com

Counsel for Amicus Curiae

May 25, 2017