On April 25, 2017, Digital Realty Trust Inc. asked the United States Supreme Court to decide whether an employee who files an internal complaint (as opposed to a complaint with the SEC) is covered by the Dodd-Frank Act's whistleblower-protection provision.
In a 2-1 decision, the Ninth Circuit in Somers v. Digital Realty Trust, 15-17352 (9th Cir. March 8, 2017) held that Dodd-Frank's anti-retaliation provision protects employees who complain internally to their employer. Digital Realty told the Supreme Court that review of the Ninth Circuit's decision presents an opportunity to resolve a circuit split between the Ninth and Second Circuits, which are aligned and have found that internal whistleblowers are covered by Dodd-Frank, with the Fifth Circuit, which has held that a whistleblower must report any concerns to the SEC to be covered by Dodd-Frank.
Just last month, the Supreme Court declined an opportunity to review a decision (Verble v. Morgan Stanley Smith Barney, LLC., No. 16-946) where the Sixth Circuit affirmed the dismissal of a plaintiff's whistleblower claim. In that case, the plaintiff did not complain to the SEC, but the Sixth Circuit did not address whether Dodd-Frank protects internal whistleblowers and affirmed dismissal on other grounds. It remains to be seen whether the Supreme Court will grant Digital Realty's request to address this incredibly divisive issue.
Supreme Court Asked to Review Scope of Dodd-Frank's Whistleblower Provision
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