Key takeaways

• On December 8, the Third Circuit Court of Appeals in Khazin v. TD Ameritrade Holding Corp., et al. held that the Dodd-Frank Act’s restrictions on pre-dispute arbitration do not reach whistleblower claims brought under the Act’s whistleblower anti-retaliation provision.
• The Third Circuit held that the restrictions on pre-dispute arbitration in the Act apply to retaliation claims under Sarbanes-Oxley and certain other statutes, but not to retaliation claims under the Dodd-Frank Act itself.
• The decision is noteworthy in part because most commentary following the passage of Dodd-Frank assumed that the restrictions on pre-dispute arbitration in the Act applied to retaliation claims brought under the Act.  Although it remains to be seen whether other federal courts of appeals will follow the Third Circuit’s textual analysis in Khazin, the decision represents an important victory for employers seeking to enforce pre-dispute arbitration agreements when faced with anti-retaliation claims brought under Dodd-Frank’s whistleblower provision.