Vast Majority of Corporate Whistleblower Retaliation Cases Stem from Internal Disclosures, New Research Shows

An overwhelming majority of corporate whistleblower retaliation cases stem from an employee making an internal disclosure, as opposed to reporting to external government channels, according to new research published in a working paper by whistleblower attorney Stephen M. Kohn, an Adjunct Professor at Northeastern University School of Law and founding partner at Kohn, Kohn, & Colapinto.

For the paper, “Whistleblower Disclosures: An Empirical Risk Assessment,” Kohn and his coauthors, legal staffers at Kohn, Kohn & Colapinto LLP, studied the documented reporting behavior involved in Sarbanes-Oxley Act and Dodd-Frank Act whistleblower retaliation cases over an 8-year period, finding that internal whistleblowers constitute over 90% of retaliation cases.

Kohn and his coauthors argue that this data presents compelling empirical evidence supporting Congress’ recent proposals to amend laws like the Dodd-Frank Act to include robust protection against retaliation for whistleblowers who report misconduct internally. Notably, a 2018 Supreme Court ruling in Digital Realty Trust, Inc. v. Somers removed Dodd-Frank protections for internal whistleblowers.

“The overwhelming representation of internal whistleblowers in retaliation cases presents to policy makers a clear picture of the extreme risks faced by employees who try to do the right thing by reporting wrongdoing to their corporations’ internal channels,” writes Kohn. “This risk is unnecessarily high and the data presented in this paper provides empirical support for Congress to amend Dodd-Frank and other whistleblower programs which exclude internal whistleblowers from anti-retaliation provisions.”

Read the full working paper: “Whistleblower Disclosures: An Empirical Risk Assessment”