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By Yin Wilczek
Aug. 10 — The SEC has asked a district court to allow it to file an amicus brief supporting a former Bio-Rad Laboratories Inc. general counsel who sued his employer for allegedly retaliating against him for whistle-blowing.
In an Aug. 7 filing, the Securities and Exchange Commission told the U.S. District Court for the Northern District of California that its amicus brief will explain the agency's stance that whistle-blowers need not initially report to the SEC to be protected under the Dodd-Frank Wall Street Reform and Consumer Protection Act's anti-retaliation provisions.
The SEC recently issued an interpretive release on its position.
The scope of Dodd-Frank's anti-retaliation provisions has divided the federal district courts and even judges within the Southern District of New York. While most district courts have deferred to the commission's interpretation, the U.S. Court of Appeals for the Fifth Circuit, the only federal appellate court to rule on the issue, and some district courts have gone in the other direction.
The Fifth Circuit ruled in July 2013 that a former G.E. Energy (USA) LLC employee, Khaled Asadi, couldn't sue his employer under the provisions because he did not first approach the SEC.
In the wake of the Fifth Circuit decision, the SEC has sought to explain its long-held position in amicus filings, including one to the U.S. Court of Appeals for the Second Circuit in Berman v. Neo@Ogilvy LLC.
In the case at issue, former Bio-Rad GC Sanford Wadler alleged that he was fired for reporting bribery concerns related to China.
The company argued that the lawsuit should be dismissed because Wadler isn't a whistle-blower for Dodd-Frank purposes in that he didn't provide any information to the SEC or other law enforcement agencies.
The court has scheduled a Sept. 4 hearing on Bio-Rad's motion to dismiss.
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The SEC's filing is available at http://www.bloomberglaw.com/public/document/Wadler_v_BioRad_Laboratories_Inc_et_al_Docket_No_315cv02356_ND_Ca/2.
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