and Submitted November 16, 2016 San Francisco, California
from the United States District Court for the Northern
District of California Edward M. Chen, District Judge,
Presiding D.C. No. 3:14-cv-05180-EMC
T. Ashe (argued) and Tamara H. Fisher, Seyfarth Shaw LLP, San
Francisco, California; Kyle A. Petersen, Seyfarth Shaw LLP,
Chicago, Illinois; for Defendants-Appellants.
Stephen F. Henry, Esq. (argued), Berkeley, California, for
Stephen G. Yoder (argued), Senior Litigation Counsel; Anne K.
Small, General Counsel; Sanket J. Bulsara, Deputy General
Counsel; Michael A. Conley, Solicitor; Thomas J. Karr,
Assistant General Counsel; Security and Exchange Commission,
Washington D. C.; as and for Amicus Curiae.
Before: Mary M. Schroeder, Kim McLane Wardlaw, and John B.
Owens, Circuit Judges.
panel affirmed the district court's denial of the
defendant's motion to dismiss a whistleblower claim
brought under the Dodd-Frank Act's anti-retaliation
the approach of the Second Circuit, rather than the Fifth
Circuit, the panel held that, in using the term
"whistleblower, " Congress did not intend to limit
protections to those who disclose information to the
Securities and Exchange Commission. Rather, the
anti-retaliation provision also protects those who were fired
after making internal disclosures of alleged unlawful
activity under the Sarbanes-Oxley Act and other laws, rules,
and regulations. The panel agreed with the Second Circuit
that, even if the use of the word "whistleblower"
in a last-minute addition to the anti-retaliation provision
created uncertainty, an SEC regulation resolved any
ambiguity, and was entitled to deference.
Judge Owens agreed with the Fifth Circuit. He wrote that
King v. Burwell, 135 S.Ct. 2480 (2015) (holding that
terms can have different operative consequences in different
contexts), on which the majority and the Second Circuit
relied in part, should be quarantined to the specific facts
of that case.
SCHROEDER, Circuit Judge:
appeal presents an issue of securities law that has divided
the federal district and circuit courts. It results from a
last-minute addition to the anti-retaliation protections of
the Dodd-Frank Act ("DFA") to extend protection to
those who make disclosures under the Sarbanes-Oxley Act and
other laws, rules, and regulations. 15 U.S.C. §
78u-6(h)(1)(A)(iii). The underlying issue is whether, in
using the term "whistleblower, " Congress intended
to limit protections to those who come within DFA's
formal definition, which would include only those who
disclose information to the Securities and Exchange
Commission ("SEC"). See 15 U.S.C. §