Analysis of Anti-Retaliation Provisions of the Dodd-Frank Act in Relation to Foreign Whistleblowers

Abstract

Given the increasing globalization of corporations and the interest of Congress in increasing the incentives for whistleblowing as shown in the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (hereinafter Dodd-Frank Act or Act), the absence of significant anti-retaliation protection for foreign whistleblowers is of concern. The Supreme Court has ruled that it will not extend United States security laws to extraterritorial jurisdictions in Morrison v. National Australia Bank thereby limiting the ability of foreign whistleblowers to participate in the anti-retaliation provisions of the Dodd-Frank Act. The paper will first review the whistleblowing and anti-retaliation provisions of the Act before addressing whether the lack of these protections for foreign whistleblowers could undermine the effectiveness of the Act in relation to possible infractions by foreign corporation registrants with the Securities and Exchange Commission (SEC). The paper cites data regarding the number of foreign whistleblower reports, foreign corporation SEC registrants, and enforcement proceedings of the Public Company Accounting Oversight Board (PCAOB) to provide a basis for the conclusions reached.