97. Moreover, under 15 U.S.C. §78u-6(h)(C)(i) - (iii), Plaintiff is entitled for a proven violation to “reinstatement with the same seniority status that the individual would have had, but for the discrimination,” “2 times the amount of back pay otherwise, owed to the individual, with interest” and “compensation for litigation costs, expert witness fees, and reasonable attorneys’ fees.” NINTH CAUSE OF ACTION (Defamation) (Against All Defendants) 91.

The Dodd Frank Act’s anti-retaliation provision provides that employers may not “discharge, demote, suspend, threaten, harass, directly or indirectly, or in any other manner discriminate against, a whistleblower in the terms and conditions of employment.” 15 U.S.C. § 78u-6(h)(1)(a). Similar language in the Sarbanes-Oxley Act’s whistleblower provision requires a plaintiff to allege “a materially adverse change in the terms and conditions of employment.” Kolchinsky v. Moody’s Corp., No. 10 Civ. 6840 (PAC), 2012 WL 639162, at *6 (S.D.N.Y. Feb. 28, 2012) (quoting Galabya v. N.Y.C. Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000)). “A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, Case 1:11-cv-04418-LAP Document 26 Filed 09/27/12 Page 11 of 20 -12- significantly diminished material responsibilities, or other indices . . . unique to a particular situation.” Id. Ott alleges that after she reported the Trading Policy to the SEC, Chung cut her bonus by 92% and demoted her by replacing her as the Sector Head of the Alger Health Care team.

Wherefore Plaintiff prays for relief as stated in pertinent part hereinafter. SECOND CAUSE OF ACTION (Retaliation In Violation of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010- 15 USC § 78u-6(h)) 8887. As a separate and distinct cause of action, Plaintiff complains and realleges all of the allegations contained in this complaint, and incorporates them by reference into this cause of action as though fully set forth herein, excepting those allegations which are inconsistent with this cause of action.

The DFA’ s anti-retaliation provision states that “[nj o 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’ the employee’s whistleblowing activity. 15 U.S.C. § 78u-6(h)(1)(A).

2011 WL 1672066, at *8. The SAC abandons these allegations and substitutes a vague and inadequately pleaded theory that Plaintiff was “acting jointly” with some party, 15 U.S.C. § 78u-6(a)(6), but without identifying that party and offering only speculation as to his or her motives. As a result, the Second Amended Complaint fails to state the facts necessary to adequately allege that the unnamed individual or individuals mentioned in the SAC were “acting jointly” with Plaintiff under the Dodd-Frank Act.

A plain reading of the relevant Dodd-Frank and SOX provisions clearly show that the conduct reported by a whistleblower must deal with a violation of not any federal law, but of federal securities law or the enumerated crimes of mail and wire fraud. See 18 U.S.C. § 1514A(a)(l)(C) (providing that violations covered are those involving "any rule or regulation of the [SEC], or any provision of Federal law relating to fraud against shareholders") (emphasis added); 15 U.S.C. § 78u-6(h)(i-iii) (specifically noting that protected conduct must report violations of "any other law, rule, or regulation subject to the jurisdiction of the [Securities and Exchange] Commission"). As Defendant correctly argues, Plaintiffs Dodd-Frank claim is solely premised upon a purported non-compliance with the company's internal conflict of interest policy and the employment of the Executive VP's husband's relatives.

The Dodd-Frank whistleblower protection provision (like the provision in SOX) states that “[n]o 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 whistleblower.” 15 U.S.C. § 78u-6(h)(1)(A); see also 18 U.S.C. § 1514A(a). Specifically, a Dodd-Frank plaintiff must prove that he or she has suffered a materially adverse employment action – meaning an action that might “dissuade a reasonable worker from making or supporting a charge” against his or her employer.

I sum, summary judgement is due to be granted on plaintiff’s SOX retaliation claims as Plaintiff cannot even state a prima facie case but even if she could, there is clear and convincing evidence that Plaintiff’s complaints were not a contributing factor in any adverse employment decision and that Tyco would have taken the same personnel action in the absence of any complaints. C. Plaintiff Dodd-Frank Claim Fails With No Protected Activity, And No Causal Relation Between Alleged Reports And Termination To state a whistleblower retaliation claim under the Dodd-Frank Wall Street Reform and Consumer Protection Act, 15 U.S.C. §§ 78u–6 (“Dodd-Frank Act”), Plaintiff must show that: “(1) plaintiff engaged in a protected activity, (2) plaintiff suffered a materially adverse employment action, and (3) the adverse action was causally connected to the protected activity.” Hall v. Teva Pharm.

Under Section 21F(a)(6), a whistleblower is defined as “any individual who provides… information relating to a violation of the securities laws to the Commission, in a manner established, by rule or regulation, by the Commission. 15 U.S.C. § 78u-6(a)(6). Defendants contend that Ott did not provide any new information to the SEC after Dodd-Frank July 22, 2010 effective date.

16 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedures § 3931, p. 526-27 (2012). Compare 15 U.S.C. § 78u-6(a)(6) with 17 C.F.R. § 240.21F-2(b)(1). A. ARGUMENT UST Global seeks certification of the following question: 1.