The U.S. District Court for the Southern District of New York has held that the whistleblower protection provisions of the Dodd-Frank Act do not apply outside the United States, even where the employee alleged he was terminated for raising compliance concerns under U.S. international law. Specifically, the court found that Dodd-Frank did not protect an employee of Siemens in China who alleged he was terminated in retaliation for raising compliance concerns under the U.S. Foreign Corrupt Practices Act (FCPA). The decision will strike many observers as remarkable, since the extraterritorial provisions of the FCPA itself have been construed so broadly. The opinion in the case, Liu v. Siemens AG, Civ. No. 13 Civ. 317 (WHP) Slip Op. (S.D.N.Y. Oct. 21, 2013), may be viewed online here.
Continue Reading Dodd-Frank Whistleblower Protection: For America Only

By: Curt Dombek and Mark Jensen

The Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank), Pub. L. 111-203, signed into law on July 21, 2010, requires the U.S. Securities and Exchange Commission (SEC) to implement regulations under which issuers attest to aspects of the origin of certain “conflict minerals” used in their products, if those products derive from the Democratic Republic of Congo (DRC) or neighboring countries.  Under the SEC’s Proposed Rule, “conflict minerals” would include cassiterite (a source for tin), columbite-tantalite (used to manufacture electronic capacitors), gold, wolframite (a main source of the metal tungsten), or their derivatives, or any other minerals or their derivatives determined by the U.S. Secretary of State to finance conflict in DRC countries. Proposed Rule on Conflict Minerals on December 23, 2010.  75 Fed. Reg. 80,948 (Dec. 23, 2010) at 80,950 (Proposed Rule).  Thus, if the products you sell include these substances, at any level, the new regulations must be considered.

Continue Reading A Surprise Turn on the SEC’s Winding Road to the Dodd-Frank “Conflict Minerals” Rule

By: Thaddeus McBride and Mark Jensen

There were several noteworthy developments related to the Foreign Corrupt Practices Act (FCPA) in 2011.  For the first year in recent memory, however, the most significant developments were not simply huge monetary settlements (although there were those, too).  Instead, the key developments of 2011 provide new guidance on how the U.S. Department of Justice (DOJ) and – notably – the courts view enforcement under the statute.  While we have a more nuanced view of the FCPA after 2011, we are also left with a substantial question about the future of the law.
Continue Reading The FCPA in 2011: Five Answers and a Looming Question