Tariffs-Free Regulatory Importing?
Asad Akhtar
went on to conclude there was no ambiguity in this definition and did not grant deference to the
SEC’s guidance.67
Differing Views and Future Outlook
A strict plain language reading of the anti-retaliation provisions has been met with
differing views from academics and other Circuits.68 In Berman v Neo@Ogilvy LLC,69a majority
for the Second Circuit determined that a whistleblower can still rely on anti-retaliation provision
when he/she reports violations through other mechanisms, including internal compliance
personnel.70 As the Supreme Court of the United States has not been presented an opportunity to
consider this matter, it remains unclear in American securities law if it is necessary for a
whistleblower to report directly to the SEC in order to be protected under the anti-retaliation
provisions.
4. Opportunities and Challenges with Section 21F
The SEC has deemed the whistleblowing program a resounding success.71 The
Commission has credited the program with helping the agency detect fraud that would have been
impossible to detect otherwise. The statistics released from the SEC provide a positive
indication of the whistleblowing program as well. A little over two years since its inception, the
SEC reported that the program has received over 10000 tips that led to 658 enforcement
67
Ibid.
Jason Halper & Carrier Lebigre, “Second Circuit Splits with Fifth Circuit Setting Up Possible Supreme Court
Review: Are Internal Whistleblowers Protected under Dodd-Frank?” (2015) online: Orrick’s Securities Litigation,
Investigations and Enforcement Group .
69
No. 1:14, 73 F.3d 404 (2nd Cir. 2015).
70
Ibid.
71
Barbara Shecter, “SEC Chair Mary Jo White praises “enormously successful” whistleblower program”, Financial
Post (October 16, 2014), online: Financial Post .
68
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