In the two and a half years since the passage of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank or the Act),1 companies and courts alike have struggled to navigate the new legal landscape for potential whistleblowers and their employers. Taking a proactive approach to potential complaints should be an important priority for employers—and can mean the difference between a quick, internal resolution and a lengthy, external investigation.

New Terrain -

Before Dodd-Frank, the primary source of an employer’s whistleblower liability under the securities laws was the anti-retaliation provision of the Sarbanes- Oxley Act of 2002, or SOX. Despite its breadth, however, this provision had important limits. As a general rule, for instance, the anti-retaliation provision applied only to publicly traded companies. Moreover, it allowed courts to enforce mandatory arbitration agreements in whistleblower retaliation suits. And, for cases that actually proceeded in court, SOX did not require jury trials.