Employer Chooses Not to Appeal Whistleblower Retaliation Decision

The employer charged in a whistleblower retaliation case notified the U.S. Court of Appeals for the Second Circuit that it "will not be pursuing a petition for writ of certiorari with the Supreme Court of the United States." The dropped appeal was a response to the appellate court's recent pro-whistleblower decision concerning the scope of the anti-retaliation provisions in Securities Exchange Act Section 21F ("Securities Whistleblower Incentives and Protection"), as amended by Dodd-Frank Act Section 922 ("Whistleblower Protection").

At issue in the case was whether "an employee who suffers retaliation because he reports wrongdoing internally, but not to the SEC, can obtain the retaliation remedies provided by Dodd-Frank" (Berman v. Neo@Ogilvy, No. 14-4626, 2015 WL 5254916 (2d Cir. 2015)). The Court held that the employee was protected, even if they had only reported the matter internally and not to the regulators. In determining not to appeal this decision, the employer urged the U.S. Court of Appeals for the Second Circuit to "issue the mandate so that the case can proceed before the District Court on remand."