United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
I. Shadur Senior United States District Judge
response to a complaint brought against it by professed
"whistleblower" Jeffrey Martensen
("Martensen") under the claimed auspices of the
anti-retaliation provisions of the Dodd-Frank Act
("Act"),  defendant Chicago Stock Exchange
("Exchange") has filed a Fed.R.Civ.P.
("Rule") 12(b)(6) motion to dismiss because of
Martensen's asserted failure to state a claim under the
provisions of the Act, which apply solely to action taken by
a "whistleblower" as expressly defined in Act
§ 6(a)(6) (emphasis added):
The term "whistleblower" means any individual who
provides, or 2 or more individuals acting jointly who
provide, information relating to a violation of the
securities laws to the Commission, in a manner
established, by rule or regulation, by the Commission.
sua sponte memorandum opinion and order addresses that motion
because it relies on that express definition -- reliance that
cannot be countered by any legally impermissible reading of
Congress' unambiguous language out of the Act.
motion is unique in Rule 12(b)(6) jurisprudence in that there
is no need to await Martensen's response before this
Court rules on the matter. That oddity obviously calls for an
explanation at the outset.
at issue in this case is the purely legal question as to
whether Martensen is or is not a "whistleblower"
within the Act's above-quoted definition of that term, a
subject on which our own Court of Appeals has had no occasion
to rule,  while three other Courts of Appeals have
treated the subject in depth and have reached conflicting
conclusions. In that respect Act § 6(h)(1)(A) provides a
right of action to a "whistleblower" in the
following language relevant to this case (emphasis again
No employer may discharge, demote, suspend, threaten, harass,
directly or indirectly, or in any other manner discriminate
against, a whistleblower in the terms and conditions of
employment because of any lawful act done by the
(i) in providing information to the Commission in
accordance with this section . . . .
the story as to those three precedential Court of Appeals
1. Asadi has concluded that an employee in
circumstances identical to those presented by Martensen,
having complained up the employer's food chain (in
Martensen's case, a requirement of the employer's
internal regulations) but not to the SEC, as the
Dodd-Frank statute requires for "whistleblower"
status, is not a "whistleblower" subject to actions
under Section 6(h)(1)(A).
2. Both Berman v. Neo@Ogilvy LLC, 801 F.3d 145 (2d
Cir. 2015) and Somers v. Digital Realty Trust, Inc.,
850 F.3d 1045 (9th Cir. 2017) have held that the unambiguous
statutory definition in Section 6(a)(6) is somehow overridden
by other considerations, including statements emanating from
the SEC itself, so that "whistleblower" is
transmuted from a term of art specifically defined by
Congress to a generic noun of broader scope.
Court of course intends no disrespect to the four judges who
have reached that last-described result. But for more than
three decades this Court has consistently adhered to the
principle that it stated in these terms in State of Ill.
by the Ill. Dep't of Pub. Aid v. Heckler, 616
F.Supp. 620, 624 (N.D. Ill. 1985), aff'd 808 F.2d 571
(7th Cir. 1986), addressing the meaning of a statutorily
defined term (in that instance part of the Social Security
Any analysis must of course begin with -- and focus on -- the
language of [the statute] itself.
Heckler, id. at 624 n.8 went on to say, in
language that could well have been written in this case to
explain why analysis calls for the express statutory
definition to prevail over the ...