United States District Court, D. New Jersey
CRAIG D. PRICE, Plaintiff,
UBS FINANCIAL SERVICES, INC., Defendant.
WILLIAM J. MARTINI, U.S.D.J.:
Craig D. Price brings this action against UBS Financial
Services, Inc. (“Defendant”), alleging claims of
whistleblowing retaliation under the Wall Street Reform and
Consumer Protection Act (“Dodd-Frank”), 15 U.S.C.
§ 78u-6, and the Florida Whistleblower Act (the
“FWA”), Fla. Stat. § 448.102. This matter
comes before the Court on Defendant's motion to lift the
Court-imposed stay of proceedings and dismiss Plaintiff's
Dodd-Frank claim with prejudice. There was no oral argument.
Fed.R.Civ.P. 78(b). For the reasons set forth below,
Defendant's motion is GRANTED.
Court assumes the parties' familiarity with the facts and
procedural history of the case and writes solely for their
benefit. The Court previously decided the merits of
Defendant's motion to dismiss, denying dismissal of the
FWA claim but staying the Dodd-Frank claim pending a decision
by the Supreme Court in Digital Realty Trust, Inc. v.
Somers. ECF Nos. 19 & 20. On February 21, 2018, the
Supreme Court issued its opinion in Digital Realty,
holding that the anti-retaliation provision of Dodd-Frank
does not extend to an individual who has not reported a
violation of the securities laws to the Securities and
Exchange Commission (“SEC”) and therefore falls
outside of the Dodd-Frank definition of
“whistleblower.” See Digital Realty Trust,
Inc. v. Somers, 138 S.Ct. 767, 772 (2018).
now moves the Court to lift the stay and dismiss
Plaintiff's Dodd-Frank claim with prejudice because
Plaintiff did not provide any information of a securities
violation to the SEC prior to his termination. See
Def.'s Mot. to Lift the Stay (“Def.'s
Mot.”) ¶ 10, ECF No. 32-1. Defendant argues that
testifying before the Financial Industry Regulatory Authority
(“FINRA”) does not equate to providing
information to the SEC as required by the Dodd-Frank
definition of “whistleblower.” Id.
opposes dismissal of his Dodd-Frank claim, arguing that he is
a whistleblower under Dodd-Frank because the SEC oversees
FINRA, including overseeing FINRA's rulemaking process
and disciplinary proceedings. See Pl.'s Resp. to
Def.'s Mot. to Lift Stay (“Pl.'s
Opp'n”) ¶ 6, ECF No. 36. In other words,
Plaintiff contends that his disclosures to FINRA
“should, at this early stage of the case, be taken as
protected activity under Dodd-Frank and Digital
Realty because FINRA acts with the authority of
SEC.” Id. ¶ 7. In the alternative,
Plaintiff proffers that he can amend his complaint “to
add facts that demonstrate that he did report directly to the
SEC the activity of [Defendant] to Melchior prior to the
filing of his lawsuit, although after his termination.”
Id. ¶ 8.
reply, Defendant responds that FINRA is not the SEC, a
division of the SEC, or a component of the government at all
and Plaintiff's testimony, therefore, cannot satisfy the
definition of “whistleblower.” See
Def.'s Reply in Supp. of Its Mot. to Lift the Stay
(“Def.'s Reply”) 1, ECF No. 37. Defendant
also argues that the Digital Realty holding
expressly rejects Plaintiff's contention that he can
claim whistleblower protection because he engaged in other
activity protected by a subsection of Dodd-Frank.
Id. at 1-2. Finally, Defendant argues that any
attempt by Plaintiff to amend his complaint would be futile
because Plaintiff only reported information to the SEC after
his termination. Id. 2-3.
Court hereby lifts the stay and applies the same legal
standard that it did to Plaintiff's FWA claim. Federal
Rule of Civil Procedure 12(b)(6) provides for the dismissal
of a complaint, in whole or in part, if the plaintiff fails
to state a claim upon which relief can be granted. The moving
party bears the burden of showing that no claim has been
stated. Hedges v. United States, 404 F.3d 744, 750
(3d Cir. 2005). In deciding a motion to dismiss under Rule
12(b)(6), a court must take all allegations in the complaint
as true and view them in the light most favorable to the
plaintiff. See Warth v. Seldin, 422 U.S. 490, 501
(1975); Trump Hotels & Casino Resorts, Inc. v. Mirage
Resorts Inc., 140 F.3d 478, 483 (3d Cir. 1998).
a complaint need not contain detailed factual allegations,
“a plaintiff's obligation to provide the
‘grounds' of his ‘entitlement to relief'
requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not
do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007). Thus, the factual allegations must be sufficient
to raise a plaintiff's right to relief above a
speculative level, such that it is “plausible on its
face.” See Id. at 570; see also Umland v.
PLANCO Fin. Serv., Inc., 542 F.3d 59, 64 (3d Cir. 2008).
A claim has “facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). While
“[t]he plausibility standard is not akin to a
‘probability requirement' . . . it asks for more
than a sheer possibility.” Id.
Supreme Court was unequivocal in holding the following:
The question presented: Does the anti-retaliation provision
of Dodd- Frank extend to an individual who has not reported a
violation of the securities laws to the SEC and therefore
falls outside the Act's definition of
“whistleblower”? We answer that question
“No”: To sue under Dodd- Frank's
anti-retaliation provision, a person must first
“provid[e] . . . information relating to a violation of
the securities laws to the Commission.
Digital Realty, 138 S.Ct. at 772-73 (citations
omitted). It further noted that the “core objective of
Dodd-Frank's robust whistleblower program . . . is to
motivate people who know of securities law violations to
tell the SEC.” See id. at 777
(internal quotations and citations omitted). “In sum,
Dodd-Frank's text and purpose leave no doubt that the
term ‘whistleblower' in § 78u-6(h) carries the
meaning set forth in the section's definitional
provision.” Id. at 778. Consequently,
“[t]he disposition of this case is therefore evident:
[plaintiff] did not provide information ‘to the
Commission' before his termination, § 78u- 6(a)(6),