Corporate Whistleblowing: Berman v. Neo@Ogilvy LLC, WPP Group
Corporate Whistleblowing is a highly encouraged practice in the corporate world, with laws being established to protect whistleblowers. However, some of the protection laws, especially in the United States, appear contradictory, making it difficult for whistleblowers to gain protection against discriminatory acts by their employers. The Berman v. Neo@Ogilvy LLC, WPP Group appeal case is an example of a lawsuit that faced significant challenges when interpreting the existing laws on the definition of a whistleblower and the extent to which either Sarbanes-Oxley or Dodd-Franks statutes would protect such a person from retaliation. Berman filed for an appeal with the Supreme Court after the district judge dismissed his claims on the basis that the plaintiff ought to have reported the violation to the Commission (“United States Court of Appeals” 1). While the majority of the circuit judges of the Supreme Court accepted Berman’s claim and granted him a bounty award, this should not have been the case considering that the verdict was based on partial alteration of the congressional statutes.
The majority of the court’s decision in the selected case was that the plaintiff deserved protection against retaliation from his employer. Led by Judge Jon Newman, the council ruled that Berman qualified for whistleblower protection as justified in the interpretive rule by the SEC (“United States Court of Appeals” 4). Hence, this meant that the appellant was granted immunity by the statute for having reported matters of non-compliance and accounting fraud to an internal body, and in this case, his superiors in Neo@Ogilvy LLC. The above verdict was based on the alleged sufficient ambiguity of the Dodd-Frank statute, which according to the judges, compelled deference to SEC’s rule (“United States Court of Appeals” 4). The Dodd-Frank statute provides an ambiguous definition of the term whistleblower, which restricts remedy available to corporate whistleblowers. For instance, the U.S. Court of Appeals for the Fifth Circuit offers exclusive protection to individuals who report violations to the SEC (Leifer 124). In the face of the limited scope of the statute, the court decided to accept the provisions of the SEC and to award protection to the appellant.
Contrarily, Judge Dennis Jacobs dissented on the matter and ruled that Berman did not have a substantial claim in the case. According to the judge, the provisions of the two federal statutes were unambiguous because Congress had made clear distinctions between them (“United States Court of Appeals” 7). Hence, Berman ought to have been denied protection because he reported the violation to the commission long after he had been fired from the company.
In my opinion, the court’s ruling was based on an alteration of the congressional statutes; thus, I would dissent from the decision made by the majority of the circuit judges. Evidently, Berman qualified for protection under the Sarbanes-Oxley statute because he reported the matter to both an internal body and the commission. However, the law also provides a limited duration of ninety-days, within which a whistleblower should file a claim (Leifer 129). Unfortunately, Berman filed the petition approximately six months after he was discharged from work, which implies that he was ineligible for Sarbanes-Oxley protection. Therefore, it may have been erroneous for the court to grant him protection based on allegations of the limited scope of the statutes, rather than adhering to the established laws.
The court’s decision, in the selected case, infringed the congressional statutes. The majority of the judges deemed it necessary to grant protection to the appellant based on the limited scope of the statutes. On the other hand, the dissenter argued that the appellant lacked a claim since the law was definitional. Based on my evaluation, the plaintiff was ineligible for protection because he failed to file a claim within the stipulated period under Sarbanes-Oxley statute.
“United States Court of Appeals for the Second Circuit.” Case 14-4626, Document 141-1, 09/10/2015, 1594814, 2015, pp. 1-29.
Leifer, Samuel. “Protecting Whistleblower Protections in the Dodd-Frank Act.” Michigan Law Review, vol. 113, no. 1, 2014, pp. 121-150.