Tariffs-Free Regulatory Importing?
Asad Akhtar
violation directly to the SEC. As the SEC and other regulatory authorities recommend
whistleblowers to report violations internally first, this argument would undermine the value in
internal compliance programs. However, this plain-language reading has surprisingly been
upheld by the Court of Appeal for the Fifth Circuit in Asadi v G.E. Energy.62
In this case, the whistleblower reported perceived violations of the Foreign Corruption
Practices Act to his supervisor. Following his report, the whistleblower alleged management
retaliated through several actions and ultimately terminated his employment. The whistleblower
brought a private right of action against the company, as provided under Dodd-Frank, for
retaliatory termination.63
The initial action to the District Court was dismissed on the grounds the claimant did not
meet the definition of a whistle-blower under Dodd-Frank as he did not report the violation to
the SEC.64 In recognition of some ambiguity present in Dodd-Frank regarding the definition of a
whistle blower and the provision relating to anti-retaliation, the SEC issued clarifying regulations
that expanded the definition to include individuals who report to persons or government entities
other than the SEC. 65 On appeal, the Fifth Circuit affirmed the District Judge’s decision and
took a plain-language approach to the whistle-blower protection provision, indicating that it
creates a cause of action only for individuals who provide information to the SEC.66 The Court
62
Asadi v. G.E. Energy (USA), No. 4:12-345, 720 F.3d 620 (5th Cir. Tex. 2013), [Asadi].
Ibid at 2.
64
Ibid.
65
Calvin Kennedy, “Who, What, When, Where and Why: An Examination of Asadi v GE Energy and the DoddFrank Anti-Retaliation Provision” (2013) 75 U Pa L Rev at 236.
66
Ibid at 237.
63
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