Cardozo Journal of Conflict Resolution
Abstract
This Note proceeds in six parts. First, it examines the mechanics of the SEC whistleblower program, its success, and the importance of whistleblowers. Second, it analyzes whistleblower retaliation protections and contrasts the protections under DoddFrank with those under the Sarbanes-Oxley Act of 2002 ("SOX"). Third, it analyzes how the SEC protects whistleblowers under its regulatory powers. Fourth, it analyzes the importance of retaliation claims from the whistleblower's perspective. Fifth, it analyzes how and why companies employ pre-dispute arbitration clauses to get a more favorable forum to entertain retaliation claims and how federal courts have been enforcing these arbitration clauses. Finally, this Note proposes that Congress ought to repeal the retaliation provision from the Dodd-Frank right of action and fold certain retaliation claims into the SOX right of action. Until that proposal is carried out, the SEC ought to expand its interpretation of 21F-17 to cover pre-dispute arbitration clauses without carve-outs for whistleblower retaliation claims. This section will also discuss whether this interpretation of 21F-17 would enjoy deference if challenged in court.
Disciplines
Dispute Resolution and Arbitration | Labor and Employment Law | Law
Recommended Citation
Noah Weingarten,
How Pre-Dispute Arbitration Clauses Chill Whistleblowing and End-Run Dodd-Frank Whistleblowing Protections,
19
Cardozo J. Conflict Resol.
419
(2018).
Available at:
https://larc.cardozo.yu.edu/cjcr/vol19/iss2/8