Thomson Reuters today moved to dismiss a whistleblower complaint from a former employee who claimed that he was fired for complaining internally, and to the FBI, that the company’s selective release of certain survey data constituted insider trading. The motion argues that the Dodd-Frank whistleblower protections apply only to those who raise complaints with the SEC, and relies heavily on a recent Fifth Circuit’s recent, Asadi, holding as much. Prior to Asadi, Judges Furman and Sand had found that internal reporting would suffice (see our prior post on Judge Furman’s ruling here), but Thomson Reuters’s motion asks that the judge in its case, Judge Scheindlin, follow Asadi instead. The definition of “whistleblower” under Dodd-Frank is limited to those who report to the SEC, but there is a separate provision, 15 U.S.C. § 78u-6(h)(1)(A)(iii), prohibiting retaliation for a broader category of conduct. Judges Furman and Sand found that this provision was in tension with the “whistleblower” definition, but Thomson Reuters argues that that the two provisions could be harmonized:
As the Asadi court stated, the protected activity categories of § 78u-6(h)(1)(A) do not define who is protected, but rather what, i.e., “what actions by protected individuals constitute protected activity.” 720 F.3d at 625. It is only if one reads the categories of protected activity as “additional definitions of three types of whistleblowers” that a conflict could arise, but the “plain text of the statute does not support” such a reading. Id. at 626. “Instead, the text of § 78u-6 clearly and unambiguously provides a single definition of ‘whistleblower.’” Id. at 627. . . . Nor does the application of the “whistleblower” definition to the anti-retaliation provisions render §78u-6(h)(1)(A)(iii) superfluous . . . . The Asadi court provided the example of a manager who simultaneously reports a suspected securities law violation to the SEC and to his company’s CEO, who, unaware of the report to the SEC, fires the manager for the report to the CEO. . . . .The manager would . . . be entitled to protection under (iii) . . . .