Mike Delikat, head of Orrick’s Employment Law Practice Group, was interviewed by Law360 about Dodd-Frank Act whistleblowers who have signed arbitration agreements and whether they should be able to litigate in court.
Delikat stated that Dodd-Frank “clearly” does not prohibit mandatory predispute arbitration agreements. “I think the plaintiff in this case, and anyone else taking this position, really has an uphill battle. It’s a pretty easy argument that the defendant made,” he said.
Even after Monday’s ruling, not all employers will choose to enforce arbitration agreements when confronted with suits like Murray’s, according to Delikat. It can be extremely difficult or even impossible to win a so-called dispositive motion, such as a motion to dismiss, in arbitration. And the same argument that failed for UBS — claiming that a plaintiff does not qualify as a whistleblower — has been successful for other defendants.
“This is an area full of minefields for litigants. It’s confusing,” Delikat said. “You have overlapping statutes that supposedly protect whistleblowers, each of which have different procedures, different remedies and different legal outcomes. This case points that out.”