Berman V Neo @ Ogilvy Llc Case Summary

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II. The Circuit Split In September of this year, the second circuit’s decision in Berman v Neo@Ogilvy LLC created a circuit split with the fifth circuit’s 2013 decision in Asadi v. G.E. Energy (USA), L.L.C. Specifically, the two circuits disagreed about whether a whistleblower must report externally to qualify for protection from employer retaliation under the Dodd-Frank Act. The dispute arises from a conflict between two subsections of Dodd-Frank’s whistleblower provisions, namely the definition section and subsection (iii) of the anti-retaliation provision. The definition section of the Dodd-Frank Act defines a whistleblower as someone who “provides . . . information related to a violation of the securities law to the [Securities and Exchange]…show more content…
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. These seemingly conflicting provisions have led the Fifth Circuit to decide that internal whistleblowers are not protected and the Second Circuit to decide that they are protected. The crux of the argument focuses on whether or not the statute is ambiguous on this matter so as to warrant granting Chevron deference to the SEC’s rule. The SEC’s final rule was promulgated in August 2011 under the authority delegated to it by Congress. The rule itself states that you are a whistleblower if: (i) You possess a reasonable belief that the information you are providing relates to a possible securities law violation (or, where applicable, to a possible violation of the provisions set forth in 18 U.S.C. 1514A(a)) that has occurred, is ongoing, or is about to occur,
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