16 Tweets About One Whistleblower Ruling
As most compliance officers know by now, this week the Supreme Court handed down a ruling that narrowed the scope of whistleblower protections allowed under the Dodd-Frank Act. Yesterday I broke usual form and talked about the ruling, Digital Realty Trust v. Somers, via “tweetstorm.”
Without further delay, here are the tweets again for anyone who doesn’t use Twitter, all consolidated in one handy place.
A thread about Digital Realty Trust v. Somers, the Supreme Court decision this week that narrowed whistleblower protections under Dodd-Frank Act. #compliance #FCPA #corpgov #GRC #whistleblowers (1/16)
— Matt Kelly (@compliancememe) February 23, 2018
First, this decision should surprise nobody. SCOTUS justices clearly hinted at this outcome during oral arguments last fall. (2/16)
— Matt Kelly (@compliancememe) February 23, 2018
Second, the ruling itself is correct under the law. Decision was 9-0. You don’t get that unless language of the law (here, Dodd-Frank) is clear. (3/16)
— Matt Kelly (@compliancememe) February 23, 2018
That doesn’t mean this was a GOOD ruling, really for anybody. It SHOULD lead to Congress amending Dodd-Frank to protect whistleblowers intelligently, but that won’t happen. (4/16)
— Matt Kelly (@compliancememe) February 23, 2018
Not a good ruling for companies: you still have other whistleblower protection laws bearing down on you, so your anti-retaliation efforts can’t be reduced. (5/16)
— Matt Kelly (@compliancememe) February 23, 2018
Not a good ruling for SEC: more whistleblowers will approach agency first, giving it even more work with too little staff and chairman who wants to focus on IPO market. (6/16)
— Matt Kelly (@compliancememe) February 23, 2018
(An aside: I look forward to confusion of what qualifies as “reporting first to SEC” and when protections therefore begin, and how whistleblowers understand that.) (7/16)
— Matt Kelly (@compliancememe) February 23, 2018
Not a good ruling for employees: some WILL still suffer retaliation, and some companies WILL now use ruling against them. (8/16)
— Matt Kelly (@compliancememe) February 23, 2018
So compliance officers still have challenge of building strong anti-retaliation culture, while employees go to regulators first and legal depts use new ruling and undermine your message. (9/16)
— Matt Kelly (@compliancememe) February 23, 2018
Remember: for cooperation credit programs like #FCPA Corporate Enforcement Policy, voluntary self-disclosure is required. (10/16)
— Matt Kelly (@compliancememe) February 23, 2018
That becomes harder if employees have more incentive to tell others first, and you last. (11/16)
— Matt Kelly (@compliancememe) February 23, 2018
Also remember: biggest business story of 2017 was unraveling of Uber, sparked by employee reporting concerns in court of public opinion. (12/16)
— Matt Kelly (@compliancememe) February 23, 2018
Dodd-Frank anti-retaliation provisions had NOTHING to do with Uber, and still the company had total meltdown. (13/16)
— Matt Kelly (@compliancememe) February 23, 2018
So any board or exec who thinks this SCOTUS decision reduces risk, you’re kidding yourself. Internal reporting, and protecting it via anti-retaliation, still hugely important. (14/16)
— Matt Kelly (@compliancememe) February 23, 2018
This decision narrows one tiny slice of risk, but ignores or magnifies many more. It only makes compliance officers’ lives harder. (15/16)
— Matt Kelly (@compliancememe) February 23, 2018
A decision that was legally correct, and yet not reflective of how real people, in real organizations, work in the real world. (16/16)
— Matt Kelly (@compliancememe) February 23, 2018
All in all, a decision that is legally correct, and operationally dumb.