The Fifth's Circuit's recent decision in Asadi v. GE Energy LLC is too restrictive in its interpretation of who is protected by the anti-retaliation provisions of the Dodd Frank Act. The main concern should be whether retaliation resulted from an employee's good faith concerns — not on whether the whistleblower happened to contact the SEC first.
This article by TELG managing principal R. Scott Oswald and TELG principal & general counsel Nicholas Woodfield was published by Law360 on February 14, 2014. The full article is available at Law360. (Site requires paid subscription.)
Why the 5th Circ. Was Wrong in Asadi v. GE Energy
The Fifth Circuit’s decision in Asadi v. GE Energy LLC, 720 F.3d 620 (5th Cir. 2013), occupies an interesting legal nether realm. On the one hand, it is the first appellate court to address the issue of who qualifies as a whistleblower under the Dodd-Frank Act. On the other hand, it is out of step with a number of lower court decisions and the U.S. Securities and Exchange Commission itself in its reading of the relevant statute.
This article seeks to crystallize the question of statutory construction Asadi sought to resolve, first by way of reviewing the statute itself. Second, the article discusses the Asadi court’s particular treatment of that question and reviews the opinions of the other federal district courts that have considered the matter. Finally, the article considers why the Asadi court’s narrow reading of the statute may have been misguided by the circumstances of the pleadings.