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

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Supreme Court, U.S.

he FILED

AND MAY 24 2017

BRIEFS No. 16-1276 OFFICE OF THE CLERK

IN THE

Supreme Court of the GAnited States

DIGITAL REALTY TRUST, INC.,

Petitioner,

PAUL SOMERS,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

For THE NINTH CIRCUIT

—$—<————————————————

BRIEF OF AMICI CURIAE

NEW ENGLAND LEGAL FOUNDATION AND

ASSOCIATED INDUSTRIES

OF MASSACHUSETTS

IN SUPPORT OF PETITIONER

Counsel for Amici Curiae

Benjamin G. Robbins

Counsel of Record

Martin J. Newhouse, President

New England Legal! Foundation

150 Lincoln Street

Boston, Massachusetts 02111-2504

(617) 695-3660

benrobbins@nelfonline.org

May 24, 2017

BATEMAN & §!.A))K, INC BOSTON, MASSACHUSETTS

TABLE OF CONTENTS

TABLE OF AUTHORITIES ..............0.......... hidentceastae ii

INTEREST OF AMICI CURIAE.....0000. eee eeneees 1

PR FIENEREE © GPW PURRAE IIE UBIWE ceccceccevecscnsssrcanesasesenconses 3

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I. THIS COURT SHOULD GRANT

CERTIORARI AND DECIDE THAT

THE DODD-FRANK ACT, BY ITS

OWN PLAIN TERMS, ONLY

PROTECTS EMPLOYEES WHO

REPORT SECURITIES LAW

VIOLATIONS TO THE SECURITIES

AND EXCHANGE COMMISSION. ................ 6

A. Dodd-Frank Defines A

“Whistleblower” As An Employee

Who Reports Information To The

SEC, and This Definition Must

Apply Each Time The Word

“Whistleblower” Occurs In The

a saat vials ee Ge Sea rr ene 6

B. The Disputed Statutory

Language Affords Only One

Meaning: The Employee Who

Reports Information Both To His

Employer And The SEC Is

Protected From Retaliation

Because Of His Internal

alia een Acsktensecdagesnesbenesuans 10

C. Dodd-Frank’s Protection Of The

Employee Who Reports Both To

His Employer and The SEC

Serves The Statute’s Purpose Of

Motivating Corporate Insiders To

Assist The SEC In Its Law

Enforcement Efforts. ...............0..cc0eeee:

ll. THE NINTH CIRCUIT ENGAGED IN

IMPERMISSIBLE JUDICIAL

LEGISLATION BY EXTENDING

DODD-FRANK’S WHISTLEBLOWER

PROVISION TO EMPLOYEES WHO

ARE NOT DODD-FRANK

WHISTLEBLOWERS, THEREBY

CONTRAVENING THE STATUTE’S

LANGUAGE AND PURPOSE................0.....

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TABLE OF AUTHORITIES

CASES

Arthur Andersen LLP v. Carlisie,

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Asad! v. G.E. Energy (USA), L.L.C.,

720 F.3d 620 (6th Cir. 2013).................c0ce000:

Demarest v. Manspeaker,

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Dodd v. United States,

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Great-W. Life & Annuity Ins. Co. v. Knudson,

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ILN.S. v. Cardoza-Fonseca,

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Meese v. Keene,

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Pavelic & LeFlore v. Marvel Entm’t Grp.,

SBS UD. TE CEO sv cscceccunscssetshvicannondcnna

Stenberg v. Carhart,

SS a BEG ee hai neessnscsecrcsxcsesteuavineiae

United States v. Morrison,

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United States v. Ron Pair Enters., Inc.,

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STATUTES

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Investor Protection and Securities Reform Act of

2010, Pub. L. No. 111-203, § 922(c),

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OTHER AUTHORITIES

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INTEREST OF AMICI CURIAE

Amici curiae New England Legal Foundation

(“NELF”) and Associated Industries of

Massachusetts (“AIM”) seek to present their views,

and the views of their supporters, on whether this

Court should grant certiorari to decide whether the

whistleblower anti-retaliation provision of the Dodd-

Frank Wall Street Reform and Consumer Protection

Act of 2010 (“Dodd-Frank”), codified at 15 U.S.C.

§ 78u-6(h), apphes to employees who have not

reported a violation of the securities laws to the

Securities and Exchange Commission, when Dodd-

Frank defines a “whistleblower” as “any individual

who provides .. . information relating to a violation

of the securities laws to the [SEC]?” 15 U.S.C. § 78u-

6(a)(6).!

NELF is a nonprofit, nonpartisan, public

interest law firm, incorporated in Massachusetts in

1977, and headquartered in Boston. Its membership

consists of corporations, law firms, individuals, and

others who believe in NELF’s mission of promoting

balanced economic growth in New England,

protecting the free enterprise system, and defending

economic rights. NELF’s members and supporters

1 Pursuant to Supreme Court Rule 37.6, amici state that no

counsel for a party authored their amicus brief in whole or in

part, and no person or entity, other than amici, made a

monetary contribution to the preparation or submission of the

brief.

Pursuant to Rule 37.2(a), amici state that they have provided

counsel] for each party with timely written notice of their intent

to file this brief, and that counsel for each party has filed with

the Court a blanket letter of consent to the filing of amicus

briefs.

include both large and smal] businesses located

primarily in the New England region.

AIM is a 100-year-old nonprofit, nonpartisan

association, with over 4,500 employer members

doing business in the Commonwealth. AIM’s

mission is to promote the well-being of its members

and their employees, and the prosperity of the

Commonwealth of Massachusetts, by improving the

economic climate of Massachusetts, advocating fair

and equitable public policy proactively, and by

providing relevant and reliable information and

excellent services.

Amici are committed to enforcing federal

employment-related statutes according to their

terms. When, as here, a statute provides a specific

and unambiguous definition of a term, that

definition must apply wherever the term appears in

the statute. Any change to the statute must come

from the Legislature, not the Judiciary.

In addition to this amicus brief, amici have

filed many other related amicus briefs in this Court,

arguing for the enforcement of federal statutes

according to their terms.’

For these and other reasons discussed below,

NELF and AIM believe that their brief will assist

the Court in deciding whether to grant certiorari in

this case.

2 See, e.g., Kellogg Brown & Root Servs., Inc. v. U.S, ex rel.

Carter, 136 S. Ct. 1970 (2015); Lawson v. FMR LLC, 1345S. Ct.

1158 (2014); Atl Marine Const. Co. v. U.S. Dist. Court for W.

Dist. of Texas, 134 8. Ct. 568 (2013); Univ. of Texas Sw. Med.

Ctr. v. Nassar, 133 8. Ct. 2517 (2013).

SUMMARY OF ARGUMENT

At issue is the meaning of Dodd-Frank’s

protection of “a whistleblower . . . because of any

lawful act done by the whistleblower .. . in making

disclosures that are required or protected under the

Sarbanes-Oxley Act [SOX]... .” 15 U.S.C. § 78u-

6(h)(1)(A)(iii). Dodd-Frank defines a “whistleblower”

as “any individual who provides .. . information

relating to a violation of the securities laws to the

[SEC] ....” 15 U.S.C. § 78u-6(a)(6). SOX, however,

protects employees who report securities law

violations to their employer. And the lower court

interpreted the disputed language to mean that

Dodd-Frank protects the employee who only reports

a securities law violation to his employer, pursuant

to SOX.

This Court should grant certiorari and decide,

to the contrary, that the disputed language only

protects the Dodd-Frank “whistleblower” (i.e., the

employee who reports information to the SEC) who

also reports that information to his employer and

who then suffers retaliation for his internal

reporting. The language is unambiguous and affords

this one meaning only.

This language would apply when the employer

does not know that the employee who has reported

internally has also reported to the SEC. Without

this disputed language, a Dodd-Frank whistleblower

would not be protected under Dodd-Frank for his

internal reporting. He would only be protected

under SOX. The language therefore encourages an

employee to report both internally and externally.

The lower court apparently rejected the

statute’s plain meaning as being “narrow[] to the

point of absurdity ... .” Appendix to Petitioner's

Petition for Certiorari (App.) 8a. But it is not for the

courts to pass judgment on congressional line

drawing of this sort, however narrow it may appear.

Nor is it a court’s role to conform an unambiguous

statute such as this one to the court’s own notion of

what Congress may have intended. Any change

must come from Congress, not the courts.

In any event, protecting such a class of Dodd-

Frank whistleblowers is hardly “absurd.” Consistent

with SOX’s purposes, an employee may wish to

report a potential violation to her employer, for

speedy internal resolution of the matter. But,

consistent with Dodd-Frank’s purposes, the

employee may also wish to alert the SEC to the

matter, to secure her right to pursue Dodd-Frank’s

unique financial incentives (a potentially large

bounty) and legal protections (including the right to

recover double back pay). Nor is it “absurd” that an

employer may not know that the employee who has

reported a violation internally has also reported it to

the SEC. Dodd-Frank and the SEC regulations

preserve the confidentiality of a whistleblower'’s

identity.

The Ninth Circuit engaged in impermissible

judicial legislation, effectively by substituting the

word “employee” for the defined term

“whistleblower.” But the statutory definition of

“whistleblower” excludes all other possible meanings

of that term. Moreover, Congress chose the word

“employee” in SOX’s whistleblower provision but did

not do so when it later enacted Dodd-Frank. It must

be presumed that this choice was deliberate.

If allowed to stand, the lower court’s decision

would eviscerate Dodd-Frank’s definition of a

whistleblower. But it would also contravene

Congress’ purpose of linking Dodd-Frank’s robust

financial incentives with its robust remedial

protections. In the lower court’s view, an employee

can sue for retaliation under Dodd-Frank even

though he is not eligible for a bounty under that

statute. But those incentives and remedies go hand

in hand and were expressly limited to the employee

who has earned them by reporting information to the

SEC.

The lower court’s approach could also render

SOX’s whistleblower provision virtually obsolete.

Now any employee who reports internally could

avoid suing under SOX and could sue instead under

Dodd-Frank, to benefit from its unique remedial

protections, But Congress indicated no such intent

to undermine the viability of a SOX whistleblower

claim when it enacted Dodd-Frank. To the contrary,

Congress carefully preserved SOX’s whistleblower

provision in Dodd-Frank, by expanding SOX’s

administrative limitations period.

In effect, Congress has enacted a two-tiered

statutory scheme for the protection of corporate

whistleblowers. If the employee only reports to her

employer, then SOX applies. If, however, the

employee also reports to the SEC, then she is a

“whistleblower” under Dodd-Frank and is eligible to

receive a substantial bounty and substantial legal

protection for her efforts. Therefore, the Court

should grant certiorari and rule that Dodd-Frank’s

anti-retaliation provision is limited, by its own plain

terms, to the employee who reports information to

the SEC.

ARGUMENT

THIS COUR™ SHOULD GRANT

CERTIORARI AND DECIDE THAT THE

DODD-FRANK ACT, BY ITS OWN PLAIN

TERMS, ONLY PROTECTS EMPLOYEES

WHO REPORT #£SECURITIES LAW

VIOLATIONS TO THE SECURITIES AND

EXCHANGE COMMISSION.

A. Dodd-Frank Defines A “Whistleblower”

As An Employee Who Reports

Information To The SEC, and This

Definition Must Apply Each Time The

Word “Whistleblower” Occurs In The

Statute.

At issue is the meaning of language in the

whistleblower anti-retaliation provision of the Dodd-

Frank Wall Street Reform and Consumer Protection

Act of 2010 (“Dodd-Frank”), that prohibits an

employer from retaliating against “a whistleblower

because of any Jawful act done by the

whistleblower ... in making disclosures that are

required or protected under the Sarbanes-Oxley Act

of 2002 (15 U.S.C. § 7201 et seg.) [“SOX"]....” 15

U.S.C. § 78u-6(h)(1)(A)(iii). The same provision

defines a “whistleblower” as “any individual who

provides... information relating to a violation of the

securities laws to the [SEC!....” 15 U.S.C. § 78u-

6(a)(6).

SOX, however, protects employces who report

securities law violations to their employer. 18

U.S.C. § 1514A(a)(1)(C).2 And the Ninth Circuit in

this case interpreted the disputed language to mean

that Dodd-Frank protects the employee who only

reports securities law violations to her employer,

pursuant to SOX. Appendix to Petitioner’s Petition

for Certiorari (“App.”) 7a-10a.

This Court should grant certiorari and decide,

to the contrary, that the disputed language only

protects the Dodd-Frank “whistleblower” (i.e., the

employee who reports information to the SEC) who

also reports that information to his employer and

who then suffers retaliation for his internal

reporting. 15 U.S.C. § 78u-6 (a)(6). “When a statute

includes an explicit definition, we must follow that

definition, even if it varies from that term’s ordinary

meaning.” Stenberg v. Carhart, 530 U.S. 914, 942

(2000).

3 To be precise, SOX protects an employee from workplace

discrimination when he reports to “(A) a Federal regulatory or

law enforcement agency; (B) any Member of Congress or any

committee of Congress; or (B) a person with supervisory

authority over the employee... .” 18 U.S.C. § 1514A(a)(1)(A)-

(C).

In particular, § 78u-6(h)(1)(A)(G) provides:

(h) Protection of

whistleblowers

(1) Prohibition against

retaliation

(A) In general

No employer may discharge,

demote, suspend, threaten, harass,

directly or indirectly, or in any other

manner discriminate against, 4

whistleblower in the terms and

conditions of employment because of

any lawful act done by the

whistleblower-- .. .

(iii) in making disclosures that

are required or protected under the

Sarbanes-Oxley Act of 2002 (15

U.S.C. 7201 et seg.) [SOX] ....

15 U.S.C. § 78u-6(h)(1)(A)Gii) (emphasis added).‘

SOX, it has been noted, protects an employee who

+ This subsection provides, in full:

(h) Protection of whistleblowera

(1) Prohibition against

retaliation

(A) In general

No employer may discharge, demote,

suspend, threaten, harass, directly or

indirectly, or in any other manner

reports a securities law violation to her employer. 18

U.S.C. § 1514A(a)(1)(C).

And so, making the necessary substitutions to

this disputed statutory language yields the following

result:

No employer may... discriminate .. .

against [any individual who provides

... information relating to a violation of

the securities laws to the [SEC}) .. .

because of any lawful act done by th{at}

lindividual| . . . in making [internal]

disclosures that are... protected under

i[aUA)....

discriminate against, a whistleblower in the

terms and conditions of employment

because of any lawful act done by the

whistleblower--

Gj) in providing information w the

Commission in accordance with this section;

(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;

(iii) in making disclosures that are required

or protected under the Sarbanes-Oxley Act

of 2002 (15 U.S.C. 7201 et seg.) [SOX], 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.

15 U.S.C. § 78u-6(h)(1)(A)¢ 3)-(a).

15 U.S.C. § 78u-6(a)(6), (h)(1)(A)G@i). That is, Dodd-

Frank protects an employee from retaliation when

he “provides information . . . to the SEC” but also

“makfes] internal disclosures” of the same

information to his employer, and his employer

retaliates against him “because of” his internal

disclosures.

B. The Disputed Statutory Language

Affords Only One Meaning: The

Employee Who Reports Information

Both To His Employer And The SEC Is

Protected From Retaliation Because Of

His Internal Reporting.

The disputed = statutory language is

unambiguous and affords only one meaning.

“(W]here, as here, the statute’s language is plain, the

sole function of the courts is to enforce it according to

its terms.” United States v. Ron Pair Enters., Inc.,

489 U.S. 235, 241 (1989) (citation and internal

quotation marks omitted). The language simply

provides Dodd-Frank protection to the Dodd-Frank

whistleblower who also reports that information to

his employer and who then suffers retaliation for his

internal reporting. This would apply when the

employer does not know that the employee who has

reported information internally has also reported

that information to the SEC. See Asadi v. G.E.

Energy (USA), L.L.C., 720 F.3d 620, 627-28 (5th Cir.

2013) (discussing same). Without this disputed

language, a Dodd-Frank whistleblower would not be

protected under Dodd-Frank for his imternal

reporting. He would only be protected under SOX.

See 18 U.S.C. § 1514A(a)(1X(C). And so this

language encourages the employee to report

potential violations both to his employer and the

SEC.

The Ninth Circuit was apparently unwilling to

accept the plain meaning of § 78u-6(h)(1)(A)(iu).

Indeed, the lower court rejected this protected class

of Dodd-Frank whistleblowers as being “narrow[] to

the point of absurdity....” App. 8a. But it is not

for the courts to pass judgment on congressional! line

drawing of this sort, however narrow it may appear.

“Our task is to apply the text, not to improve upon

it.” Pavelic & LeFlore v. Marvel Entm’t Grp., 493

U.S. 120, 126 (1989). After all, in matters of

economic regulation, Congress is free to define a

protected class as narrowly as it chooses.

“|Legislative] reform may take one step at a time.”

United States v. Morrison, 529 U.S. 598, 631 n.2

(2000) (citation and internal quotation marks

omitted).6 See also Great-W. Life & Annuity Ins. Co.

oe ——

5 See n.4, above. The other categories of protected activity

under Dodd-Frank apply only when an employee has supplied

information to the SEC or has participated in an SEC

enforcement action based on that information. See 15 U.S.C.

§ 78u-6(h)(1){A)(a)-(ii).

6 By the same token, it should be of no consequence here that

auditors and attorneys may not qualify for protection under

§ 78u-6(h)(1)(A)Giii), due to those professionals’ internal

reporting obligations under SOX that might delay or preclude

them from reporting the samc information to the SEC. See

App. 6a-7a (Ninth Circuit discussing same as reason for

extending § 78u-6(h)(1)(A)({iii) to employees who make only

internal reports). In any event, auditors and attorneys would

v. Knudson, 534 U.S. 204, 217-18 (2002) (“It 1s,

however, not our job to find reasons for what

Congress has plainly done; and it is our job to avoid

rendering what Congress has plainly done [here, to

extend legal protection to the employee who reports

both to the SEC and his employer] devoid of reason

and effect.”).

Nor is it a court’s role to “rewrite” an

unambiguous statute to fit the court’s own notion of

what Congress may have had in mind, as the Ninth

Circuit did here when it extended the disputed

language to employees who are not Dodd-Frank

whistleblowers. “It is not our role to conform an

unambiguous statute to what we think Congress

probably intended ....” Arthur Andersen LLP v.

Carlisle, 556 U.S. 624, 631 (2009) (internal quotation

marks omitted).

C. Dodd-Frank’s Protection Of The

Employee Who Reports Both To His

Employer and The SEC Serves The

Statute’s Purpose Of Motivating

Corporate Insiders To Assist The SEC

In Its Law Enforcement Efforts.

In any event, Dodd-Frank’s protection of

employees who report both to the SEC and their

employers is hardly “absurd.” “We cannot say that

[affording protection to such an employee] is so

bizarre that Congress could not have intended it.”

Demarest v. Manspeaker, 498 U.S. 184, 191 (1991)

(citation and interna] quotation marks omitted).

—*

still be protected under SOX for their internal reporting. 18

U.S.C. § 1514A(a)(1)(C).

for instance, an employee may choose to

report a potential violation to her employer, to bring

the matter to its immediate attention for quick

internal resolution. After all, SOX was enacted

precisely to encourage and protect such internal

reporting. See 18 U.S.C. § 1514A(a)(1)(C). But that

same employee may also wish to alert the SEC to the

matter at this early stage, to secure her right to

pursue Dodd-Frank’s unique financial incentives and

legal protections. Indeed, Congress enacted Dodd-

Frank in response to the 2008 financial crisis, and

the whistleblower provision was designed precisely

to motivate corporate insiders to come forward and

report potential securities law violations to the SEC,

in order to assist that agency in enforcing the

securities laws.’

” In fact, Congress received testimony that the SEC depended

primarily on the tips of corporate insiders to identify and

successfully prosecute claims of securities fraud. S. Rep. 111-

176, at 110-11 (2010) (“In a testimony for the Senate Banking

Committee, Certified Fraud Examiner and Madoff

whistleblower Harry Markopolos testified in support of creating

a strong Whistleblower Program. He cited statistics showing

the efficiency of Whistleblower Programs: ‘whist/eblower tips

detected 54.1% of uncovered fraud schemes in public

companies. External auditors, and the SEC exam teams would

certainly be considered external auditors, detected a mere 4.1%

of uncovered fraud schemes. Whistich/ower tips were 13 umes

more effective than external audits, hence my recommendation

to the SEC to encourage “111 the submission of whistleblower

tips.’ In his letter to Senator Dodd, SEC Inspector General

David Kotz also recommended a similar Whistleblower

Program.”) (emphasis added).

In particular, § 78u-6 requires the SEC to

award the Dodd-Frank whistleblower a substantial

bounty if her reporting of original information to

that agency results in a successful administrative or

judicial enforcement action. 15 U.S.C. § 78u-6(b).®

And if an employee who reports a_ violation

internally delays too long in_ reporting that

information to the SEC, the SEC may learn of the

information from another source. At that point, the

inforraation would no longer be “original” under

Dodd-Frank and the employee would no longer

qualify for a bounty.®

Section 78u-6 also provides the Dodd-Frank

whistleblower with generous legal protection. In

particular, the Dodd-Frank whistleblower enjoys a

direct right of action in federal court to recover

double back pay, subject to a generous six-year

limitations period that can be tolled for up to ten

® Section 78u-6(g) creates the SEC Investor Protection Fund.

Section 78u-6(b), in turn, requires the SEC to pay a

whistleblower an award from that fund, in an amount between

10% and 30% of the penalties collected by the SEC in a

“covered judicial or administrative action” resulting from

“original information” provided by that whistleblower. 15

U.S.C. § 78u-6(b)(1)(A)-(B).

“Original information” is information that “is derived from the

independent knowledge or analysis of a whistleblower . . . and

_. . is not known to the Cormmiasion from any other source... .”

15 US.C. § 78u-6(a)(3)(A)-(B). A “covered judicial or

administrative action,” in turn, is “any judicial or

administrative action brought by the Commission under the

securities laws that results in monetary sanctions exceeding

$1,000,000.” 15 U.S.C. § 78u-6(a)(1).

® See n.8, above.

years. 15 U.S.C. § 78u-6(h).’° By contrast, SOX

offers none of these protections.'' And so the

employee who reports to her employer, as a SOX

whistleblower, would want to qualify quickly as a

Dodd-Frank whistleblower (by reporting to the SEC),

before her employer may take any adverse action

against her due to her internal reporting.

In short, Dodd-Frank provides the employee

who reports information to her employer, and is thus

a SOX whistleblower, with strong incentives to

report that same information promptly to the SEC

and thereby qualify as a Dodd- Frank whistleblower.

Nor is it “absurd” to assume that an employer

may not know that the employee who has reported a

violation internally has also reported it to the SEC.

sue in federal court for retaliation for engaging in protected

activity, as defined in § 78u-6(h)(1){A)(i)-(iii)); § 78u-

6(h)(1)(B)Gii)(1)-(LD) (providing statute of limitations of six years

after date of violation, tolled by three years after date “when

facts material to the right of action are known or reasonably

should have been known,” and capped by ten-year statute of

repose); § 78u-6(h)(i)(C)(i)-(iii) (providing prevailing employee

with reinstatement, double back pay, litigation costs, expert

witness fees, and reasonable attorneys’ fees).

it Under SOX, for example, the employee has no direct right of

action and must instead file a claim with the Secretary of Labor

before obtaining the right to sue in federal court. 18 U.S.C.

§ 1514A(b)(1(A). And that administrative filing requirement is

subject to a clipped 180-day limitations period. 18 U.S.C.

§ 1514A(b)(2)(D). Finally, while the prevailing employee may

recover compensatory and special damages under SOX, she

cannot recover multiple damages. See § 18 US.C.

§ 1514A(c){1)-(2).

This is beeause Dodd-Frank preserves’ the

confidentiality of a whistleblower’s identity when she

reports to the SEC, unless and until the disclosure of

her identity is necessary in the SEC’s enforcement

action. 15 U.S.C, § 78u-6(h)(2)(A).”

In sum, the plain meaning of the disputed

language is far from “absurd” and actually serves the

twin aims of SOX and Dodd-Frank by encouraging

an employee to report violations of the securities

laws both to his employer and to the SEC.

ll. THE NINTH CIRCUIT ENGAGED IN

IMPERMISSIBLE JUDICIAL LEGISLATION

BY EXTENDING DODD-FRANK’S

WHISTLEBLOWER PROVISION TO

EMPLOYEES WHO ARE NOT DODD-

FRANK WHISTLEBLOWERS, THEREBY

CONTRAVENING THE STATUTE'’S

LANGUAGE AND PURPOSE.

Having rejected § 78u-6(h)(1)(A)Gii)’s plain

meaning, the Ninth Circuit then engaged in

impermissible judicial legislation, by extending

Dodd-Frank’s whistleblower provision to employees

who are not Dodd-Frank whistleblowers. In effect,

the lower court substituted the word “employee” for

the defined term “whistleblower.” See App. 8a.

‘2 Moreover, the SEC allows whistleblowers to report tips

through its confidential website and ensures that “{t]he SEC

treats all tips, complaints and referrals as confidential and

nonpublic, and does not disclose such information to third

parties, except in limited circumstances authorized by statute,

rule, or other provisions of law.”

https://www.sec.gov/about/otfices/owb/owb.tips.shtm! (last

visited, May 24, 2017).

But the lower court had no business making

such a change because “[i]t is axiomatic that the

statutory definition of the term excludes unstated

meanings of that term.” Meese v. Keene, 481 U.S.

465, 484 (1987). See also Arthur Andersen LLP, 556

U.S. at 631 (“It is not our role to conform an

unambiguous statute to what we think Congress

probably intended . . . .”) (internal quotation marks

omitted).

Moreover, Congress chose the word

“employee” in SOX’s whistleblower provision, 18

U.S.C. § 1514A(a), but it did not do so when it later

enacted § 78u-6 in Dodd-Frank. It must he

presumed, then, that Congress’s omission of the

word “employee” in Dodd-Frank was deliberate. See

LN. v. Cardoza-Fonseca, 480 U.S. 421, 432 (1987)

(“Where Congress includes particular language in

one section of a statute but omits it in another

section of the same Act, it is generally presumed that

Congress acts intentionally and purposely in the

disparate inclusion or exclusion.”) (citation and

internal punctuation marks omitted).

If allowed to stand, the lower court’s decision

would clearly eviscerate Dodd-Frank’s definition of a

whistleblower. But it would also contravene

Congress’ clear purpose of linking Dodd-Frank’s

robust financial incentives with that statute’s robust

remedial protection.!* After all, the provision is

titled “Securities whistleblower incentives and

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

True to its title, § 78u-6 expressly limits its financial

incentives and legal protection to the securities

\S See notes 8 and 10, above.

“whistleblower,” defined as the employee who

reports to the SEC. Those incentives and remedies

clearly go hand in hand.

In Congress’s judgment, then, only a Dodd-

Frank whistleblower should be entitled to that

statute’s generous incentives and related remedial

protections. But the lower court has subverted this

statutory purpose by severing the one from the

other. In the Ninth Circuit’s view, an employee may

sue for retaliation under Dodd-Frank even though he

is not a Dodd-Frank whistleblower and therefore

does not qualify for a financial reward.

Moreover, the lower court's interpretation

could effectively render SOX’s’ whistleblower

provision obsolete. Now any employee who reports

internally could avoid suing under SOX and could

sue instead under Dodd-Frank, to benefit from its

unique remedial protections. But Congress

indicated no such intent to undermine the viability

of a SOX whistleblower claim when it enacted Dodd-

Frank. To the contrary, Congress carefully

preserved SOX's whistleblower provision in Dodd-

Frank, by expanding SOX’s administrative

limitations period from 90 to 180 days. See Investor

Protection and Securities Reform Act of 2010, Pub.

L. No. 111-203, § 922(c), 124 Stat. 1848 (2010)

(codified at 18 U.S.C. § 1514A(b)(2)(D)).

In sum, Congress has enacted a two-tiered

statutory scheme for the protection of corporate

whistleblowers. If the employee only reports the

securities violation to her employer, then SOX

applies. If, however, the employee also reports the

securities violation to the SEC, then he is a

“whistleblower” under Dodd-Frank and becomes

eligible to receive a substantial bounty and

substantial legal protection for his efforts. Courts

should preserve this dual] statutory scheme by

enforcing Dodd-Frank according to its terms.

Therefore, the Court should grant certiorari

and rule that § 78u-6(h)(1)(A)(iii) applies, by its own

plain terms, to the employee who reports a securities

law violation both to his employer and the SEC. “We

must presume that the legislature says in a statute

what it means and means in a statute what it says

there.” Dodd v. United States, 545 U.S. 353, 357

(2005) (citation and internal punctuation marks

omitted),

CONCLUSION

For the reasons’ stated above, amici

respectfully request that this Court grant the

petitioner's petition for certiorari.

Respectfully submitted,

NEW ENGLAND LEGAL FOUNDATION

AND ASSOCIATED INDUSTRIES OF

MASSACHUSETTS

By their attorneys,