Note – Blowing the Whistle on Van Asdale: Analysis and Recommendations
Volume 62, Issue 2, 531-558
This Note examines the state of whistleblower protection at the state and federal level. It focuses on the protection granted to whistleblowers of securities fraud under the Sarbanes-Oxley Act of 2002. Most courts considering the statute have required that the plaintiff have had both an objective and subjective belief that securities fraud had been committed. In 2009, the United States Court of Appeals for the Ninth Circuit decided Van Asdale v. International Game Technology. The court broke with the other circuits in not requiring the plaintiff-employees to have a subjective belief that a violation had actually occurred and, instead, conferred whistleblower protection where the plaintiff-employees merely believed that an investigation into possible securities fraud was warranted. This Note explores the implications of the Ninth Circuit’s standard and argues that it should be overturned. Instead of lowering the requirements to achieve protected status, this Note argues that an expansion of whistleblowing remedies would better effectuate the goal of rooting out securities fraud. Congress should act to change the whistleblower protection scheme, as piecemeal judicial manipulation would only exacerbate the problem. The Note concludes with an examination of the whistleblower protections contained in the Dodd-Frank Act, arguing that the changes failed to correct the underlying structural problems with the federal whistleblower protection system.