Anti-Retaliation Provision of Whistleblower Statute Does Not Apply Extraterritorially

Corporate Attorney Joseph MarrowBy: Joe Marrow

On August 14, 2014, the Second Circuit Court of Appeals held that the anti-retaliation provision of the Dodd-Frank whistleblower statute does not apply extraterritorially.  In its decision, Liu v. Siemens A.G., No. 13-4385-cv (2d Cir. Aug. 14, 2014), the Second Circuit upheld the Federal District Court’s holding that a foreign employee cannot successfully bring an action under the anti-retaliation provision of the Dodd-Frank whistleblower statute alleging improper conduct for events taking place outside the United States.

In Liu v. Siemens, Liu, a former employee of Siemens, alleged that Siemens fired him in response to his report of improper conduct against Siemens and in so doing Siemens violated 15 U.S.C. Section 78u-6(h) of the Dodd-Frank Act which prohibits an employer from retaliating against an employee for making certain protected statements.  Most notably, Liu, who is not a U.S. citizen and was employed abroad by Siemens, alleged that all improper conduct occurred outside the United States.  The Second Circuit noted the presumption that legislation is intended to apply domestically absent clear congressional intent that the legislation was intended to apply extraterritorially.  The Court found no such congressional intent.  Absent any type of nexus between the improper conduct and the United States and the presumption against applying the statute outside the United States, the Court refused to apply the anti-retaliation provision against Siemens in this case.

The Second Circuit’s holding provides some assurance to foreign companies that if the conduct alleged to violate the anti-retaliation provisions of the Dodd-Frank whistleblower statute takes place outside the United States, the foreign corporation should not face exposure under the statute.

For more information on this topic, please contact Joe Marrow

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