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United States Court of Appeals Assignment

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United States Court of Appeals Assignment

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2014
Argued: June 17, 2015 Decided: September 10, 2015
Docket No. 14-4626
DANIEL BERMAN,

Plaintiff-Appellant,

v.

NEO@OGILVY LLC, WPP GROUP USA, INC.,

Defendants-Appellees.

Before: NEWMAN, JACOBS, and CALABRESI, Circuit Judges.
Appeal from the December 8, 2014, judgment of the
United States District Court for the Southern District of
New York (Gregory H. Woods, District Judge), dismissing, for
failure to state a claim on which relief can be granted, an
employee’s suit claiming that his discharge violated the
whistleblower protection provisions of the Dodd-Frank Wall
Street Reform and Consumer Protection Act. The District
Court ruled that these provisions protect only employees
discharged for reporting violations to the Securities and
Exchange Commission and not those reporting violations only
1

CERTIFIED COPY ISSUED ON 09/10/2015
Case 14-4626, Document 141-1, 09/10/2015, 1594814, Page2 of 29
internally. See Berman v. Neo@Ogilvy LLC, No. 1:14-cv-523-
GHW-SN, 2014 WL 6860583 (S.D.N.Y. Dec. 5, 2014).
Reversed and remanded. Judge Jacobs dissents with a
separate opinion.
Alissa Pyrich, Jardim, Meisner &
Susser, P.C., Florham Park, NJ
(Bennet Susser, Richard S.
Meisner, Jardim, Meisner &
Susser, P.C., Florham Park, NJ,
on the brief), for Appellant.
Howard J. Rubin, Davis & Gilbert
LLP, New York, NY (Jennifer
Tafet Klausner, David J.
Fisher, Davis & Gilbert LLP,
New York, NY, on the brief),
for Appellees.
(William K. Shirey, Asst. Gen.
Counsel, Washington, DC (Anne
K. Small, Gen. Counsel, Michael
A. Conley, Deputy Gen. Counsel,
Stephen G. Yoder, Senior
Counsel, Washington, DC), for
amicus curiae Securities and
Exchange Commission, in support
of Appellant.)
(Kate Comerford Todd, U.S.
Chamber Litigation Center,
Inc., Washington, DC, Eugene
Scalia, Gibson, Dunn & Crutcher
LLP, Washington, DC (Rachel E.
Mondel, Gabrielle Levine on the
brief) for amicus curiae The
Chamber of Commerce of the
United States of America, in
support of the Appellees.)
2

Case 14-4626, Document 141-1, 09/10/2015, 1594814, Page3 of 29
JON O. NEWMAN, Circuit Judge.
This appeal presents the recurring issue of statutory
interpretation that arises when express terms in one
provision of a statute are arguably in tension with language
in another provision of the same statute. The Supreme Court
recently encountered a similar issue when it interpreted a
provision in the Patient Protection and Affordable Care Act
in Burwell v. King, 135 S. Ct. 2480 (2015). In the pending
case, the tension occurs within the whistleblower protection
provisions of the Dodd-Frank Wall Street Reform and Consumer
Protection Act (“Dodd-Frank”). Pub. L. No. 111-203, Title
IX, § 922(a), 124 Stat. 1376, 1841 (2010), which added
section 21F to the Exchange Act of 1934, codified at 15
U.S.C. § 78u-6. The relevant administrative agency, the
Securities and Exchange Commission (“SEC” or “Commission”),
has issued a regulation endeavoring to harmonize the
provisions that are in tension.
Plaintiff-Appellant Daniel Berman appeals from the
December 8, 2014, judgment of the District Court for the
Southern District of New York (Gregory H. Woods, District
Judge), dismissing on motion for summary judgment his suit
against Defendants-Appellees Neo@Ogilvie LLC and WPP Group
USA, Inc. See Berman v. Neo@Ogilvy LLC, No. 1:14-cv-523-GHW3

Case 14-4626, Document 141-1, 09/10/2015, 1594814, Page4

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