dismissing leo fry's dodd frank clune the court determined a few things st that her factual allegations were not sufficient in reaching that conclusion the court erred in two ways st was in its approach and nd it was in the findings the approach the court took was to analyze the factual allegations supporting constructive discharge as separate discrete acts and not a continuing action that needed to be evaluated in its totality but you're a good lawyer you're starting with what i would have thought is the strongest argument that the constructive just charged forces the context all the way back but but addressed the waiver problem where specifically in the record did you argue that constructive discharge incorporates all prior in the complaint fry alleges your honor that her constructive discharge was the incremental effect of all of the retaliation beginning with her internal opposition in her internal complaint to her supervisor and continuing after she filed her f c c complaint i thought you were telling judge vance we get retroactive protection not oh well she's been retaliated for conduct after she became a whistleblower because the retaliation is a constructive discharge hence look at everything before those are two quite different arguments and you're saying when we look at judge dances decisions will see discussion of constructive of continuing violation yes sure what you see is and i want to be clear the complaint alleges with particular i'm sorry judge rosenthal yes your thank you complaint does alleges particularities that this was a pattern  and in our hearings leading up to the ultimate outcome by but it was where's your being nice to not and to push back if i'm wrong but you were saying pattern hence look retroactively at those earlier incidents or were you saying it's a single set of retaliation culminating in intolerable world it's the latter and digital realty supports that construction and supports why that is a valid claim because in digital realty before you can get to it that may be right under digital reality it's really did you present this to judge rosenthal the the continuing violation theory of retaliation not expressed in terms of citing for example the doctoring or the supreme court case law however we don't think the waiver argument has merit because the question is was it sufficiently before the court for her to rule on it and that the articulation of this being the product of a pattern of treatment was was part of this case from the outset in fact ruled on that basis saying that whether there was a pattern or not which are best case that a continuing violation doctrine applies outside of statute of limitations because if there isn't one it's pretty it's asking her to be awfully prescient to see that is the exception did you're i think it's both morgan and suitors cited in our brief but it's also digital realty because digital realty departs from some of the other employment laws in several ways one is its construct of what conduct is protected and how the supreme court said we don't want you the employer to have a profile of them we don't want you to have to prove that this retaliation was soley because you realize you see report after all many times the employer won't know of the f c c report and that would allow the employer to actually use its earlier retaliation as a defense and so use the hypotheticals that this court society and that the supreme court uses in its opinion digital realty both contemplate exactly that and it's the court's verbiage where the court the supreme court to be clear says we want to dispel whistleblowers of approved problem and that proof problem was one that came up when summers the plate if in the underlying case in digital realty said hey if you read it the way digital realty wants you to read it then attorneys and auditors who must repor internally st they're going to have no protection of course response to that was correct until they go to the f c c at which time the shields not only their f c c report but also their earlier reports after all the employer may not have even known about the f c c report i know this argument is a little the proof problem issue is a little confusing to me but the if if if if the retaliation occurs before the individual send something to the f c c the retaliation in under digital couldn't be for whistle blowing that's right and to be clear there are points we can see that could help the analysis here for example  was need a whistleblower st go to the f c c to have protection by dot frank that was spam something that was the subject of spirited disagreement among the circuits ultimately the court said yes you must go to the f c c or you are not within that category protected by this statute we can see that we concede for example your honor that if we are for i had never gone to the f c c before the date of her constructive discharge she wouldn't have a claim that was the fact pattern assadi and it was the fact pattern  summers neither of them had actually gone to court but and had she simply complained internally and then been fired or constructively discharged as it were she would have been left with sarbanes oxley as her only remedy and that the digital realty opinion discusses that what she reported to the f c c which happened during her replacement she then had the broad protection of the dodd frank act that broad protection doesn't require her to prove whether her retaliation was because of her s complaint for earlier complaints or both and that's the argument you're on if we don't accept that there's any retroactive look so it's just the nine days do you do you lose then because there's really no economic  may we obviously are arguing for a little bit different reading the courts have taken as to the non economic damages but obviously it's a much tougher case and we conceded that to judge rosenthal however we do think that that would take away the protections in many ways that the statute was intended to create in other words why wouldn't an employer in all instances feign ignorance about the f c c complaint and say yeah we might have retaliated sarbanes oxley limitations periods run sure we didn't like those internal complaints so we fired based on that and i think we need to get action to the minute she goes to them i thought the underlying logic from our original assadi decision and that's required is the encouragement is to get her to report the  she reports even if the retaliation for it is for internal reporting she's protected it's just here she delayed and so on a simplistic reading of digital then you just can't look back to the the retaliation prior to that right line and that's in a doctor's argument but there is no such tempore a line drawing the protection other words the way we read the statute is that it is a it is a narrow and very specific class that's whistleblowers and the bread nd issue it's unusually broad i concede under met him you do think that the letters that your client was sent were sufficiently concrete to establish just disability or do your honor and i don't think it's is that threats by themselves without factual ripeness are not enough invented trailers you had an unsettled pattern design and the facts weren't right so the court said threats alone aren't enough but went on to say that those threats made inventive trailers weigh decidedly in favor of it used to shovel controversy and then the court decided the case on the facts there's a reason i think that in the dark it doesn't cite to oryx much we have not only threats here we have a dispute over a contract it's clear what we're fighting about it's the nondisclosure agreement it's clear what ms fry wants to disclose and that's her f c c letter just a letter just a letter and it's attachments i think it's one hundred and seven pages and that has always been crystal clear dating back three and a half years and we know this because anadarko's letter in july of that year which is exhibit six i believe to the nd amended complaint says we know you want to disclose the s e c letter we prohibit it would depend on diversity the record reflects does exist the difficult issue the money controversy is that where you're leading us are we yes we had at the time we filed this lawsuit a client who been threatened with a lawsuit and what we did not want was a judicial admission for example that there's at least seventy five thousand dollars an issue soley in that case so it's attached by design to the dodd frank claim and i'd have to go ko has as through good lorien gone to great lengths to call things hypothetical they really are not one example is they say well st she wanted to disclose the fraud in the context of an impending securities fraud lawsuit but that's that's really outside the analysis that was a product of serendipitous circumstance lia for i found out in may of two thousand and seventeen that seven hundred million dollars had been written off because of this project she realized that she had been ri along that there had been fraudulent representations that all of the mapping that they've been told to do that was a fraud had allowed them to percolate this narrative and here we are now writing it off a year later that's why she waits to unify the lawsuit well at the time she learns this fact from an adult barker's public filings she also learns of a securities fraud lawsuit pending in houston and so she sought hey i want to tell the shareholders what's going on she asked judge rosenthal for the opportunity to have judge rosenthal rule on whether she could share this same document the s e c letter with the edgar shareholders who by the way had a securities fraud case that was smaller and arose from facts far less egregious than there was this  rule as to whether this this could be disclosed and she treated that i think probably appropriately as an advisory opinion that she could issue and so that laid the groundwork for ms fry to seek it in this case you need to seek a declar and it was that really doesn't address the real issue which is can it be closed disclosed to anyone you know darko says no fry says this isn't your proprietary information this is fraud and by the way much of it was already publicly disclosed by  and then to address the digital reality decision and even after two amended pleadings mr i was unable to state a claim for retaliation under the dodd frank act to address that the correctly dismissed that claim and also  correctly dismissed the declaratory judgment claim on the grounds that it was not interested shabelle i'd like to start with the with the retaliation issue but certainly would like to talk about the declaratory judgment as well you honour's this court was the st one to get the dodd frank retaliation statue right in the a side and the deciding decision and the court's reasoning in that case was subsequently affirmed by the supreme court in digital realty the court should not be the st one to get the statue wrong by adopting a flawed flawed interpretation of what it does what the court did correctly in a society and what the supreme a dodd frank whistleblower is just a whistleblower as defined by the statute and so one is not entitled to the statutes protections until one has until one has actually become a whistleblower  argument is and you don't just feel that she was a whistleblower at the time she resigned that's correct ok and she says she resigned because it got intolerable and constructive discharges cases even we look at the entire past or present to decide if the conditions have gotten so intolerable so is your position that we should ignore the doctrine that we apply to the circumstance the court then so miss franklin cited cases from largely the title southern context and how constructive discharge works particularly a continuing violation there which is applicable in a statute of limitations context that that is contrary to the statute here st of all she has to st of all i would say she's not cited a single case in which this body of law that continuing violations of law has been applied in the dodd frank context so the court would have to would have to cuts and new ground to do that but nd the court should not do that because it's contrary to how the statute works and i would know one thing that in the opening argument and even largely in the briefs there's a very very little mention by ms fry of the sarbanes oxley statute i think it's very important to understand on this issue of how the sox statute and the dogs from statutes  but it's also important to notice that all along during this during the lead up here to when she finally did decide to go to the i c c she she could have had protections that she had timely asserted her rights under the under the sarbanes oxley statute here by making disclosures under the statute she was entitled to sue to go to the department of labor within this within the one hundred knew the statute of limitations and then to proceed from there and if possible to go to go and file the suit later she didn't do that so it's not as if she's there was never any remedy existing for any kind of retaliation that she alleged that she experienced in the interim i'm pressing on is that you know when you say that we got it right once don't get it wrong here it does not clear to me the digital reality or even any of the case all your citing dealt with circumstances like this it's those are places plaintiffs that get fired then report that's in the digital reality world but i don't see you point to a case where we came whistleblower then further acts made it that much more intolerable and the court can't look to the earlier acts to decide whether the final retaliation that's a that's the slightly unusual posture of this case i understand that you know and as your answer st that they never made that argument to not not a whistleblower and not in total term relief under dodd frank because he was not a whistleblower at the time of the retaliation and that and that is the that's completely material in this case too if you were to look through mr fry's complaint look at allegation one allegation two allegation three everything everything that you could line up prior to may th the answer is the same under digital realty that there was no that there was this she was not a whistleblower at the time of the retaliation therefore she's not in total to the statute protections but your understanding of how she would make this information public to the shareholders that she's trying to get it would not be bound b non disclosure and when that contract i don't think she's ever made that entirely clear to us yet no i think that the reason why there's never been an actual dispute that's appropriate for a resolution under the  we've never even had the crucial details of what this a clue what this disclosure would be when it would happen what it would involve i think even once we need those facts i think it would be appropriate for us to be able to to assess that to the sauce what the potential damages were whether there's some kind of alternative way to resolve it something like that but this but this case has never come close to there being an actual dispute that's immediate and real as i mean she's saying no because she she says she will disclose it immediately and she has told you what it is the letter so but i would i would dispute that your honor i mean i know that business held up a binder here that says this is all we're disclosing but it's but it's important to actually look into the details of what's in the letter and i'm not going to read from it here since these are materials under seal but but i but i mean look at look closely at page eight hundred and forty one of the record and this is near the end and and importantly she makes herself available for a meeting request a meeting to talk about this says that there is additional information that's available any even drops a footnote at the end that says and by the way i have information about other about other projects too so that the f c c letter is not circumscribed in any in any reasonable manner and it really kind of has a sort of trojan horse effect and even at the representation is that all we're going to get is the city as he sees letter i think we have a very reasonable basis to believe that there's that there's a lot more that we need to know before before there can be a proper assessment even of even of how this would be resolved so that we're not we're not at the stage of the letter said it is protected and we will inforce or agreement bents at least some if not all of those disclosures and to that extent we may want to follow on with a lawsuit but i but it's so it's so far premature from being able to money a monetary term has not been discussed i mean in contrast to some of the other you know some cases for example have been cited like the old sullivan case where there's a liquidated damages provision there's nothing like that in this case in the non disclosure agreement and so know i'm not going to rule out there certainly could be some kind of a negotiated arrangement a controlled disclosure where the terms you know we can look through and look at what you know what's our what if any things are in the public things like that  looking at the complaint and again i'm not going to read from this directly but i think mr mr mintz as you know made the correct representation that there is not there is no allegation regarding regarding the amount of controversy so i think constructive discharge to all of that and that is precisely the kind of hypothetical this court discusses in a society in other words that your internal your internal complaints will be protected once you become in the category of whistleblowers and i would urge this court to look closely at page seven thousand and eighty of digital realty because in rejecting it this case presents irony in that we are the plaintiff aligning ourselves with the arguments made by the defendant in the underlying case a continuing violation we cited we cited morgan and we cited suitors and the reason we side of the cases we did along with stewart and heath from this court is because the continuing violation doctrine is treated as a generic feature of employment law that's in our briefing it's not unique to title seven and so judge rosenthal was aware that we had this pattern of behavior the question was in the wake of digital realty where what do i consider as the court in the court expressly says i disclose as we told judge rosenthal what happens after the court rules if the court rules she can disclose the s e c later is really ten general to the proper analysis do you in a darker know what she wants to disclose the answer is yes the purpose of her declaration which by the way i guess anadarko maintains is their confidential information as well the purpose of that was to make it very clear that the only reason she hasn't disclosed it is because of the coercion that arises from those threats to and those aren't reservation of rights letters they do use that verbiage but they also are to breach they say we will take action they say they reserve rights and they mentioned breach and they at least intimate money damages they have said that all one hundred and seven dollars pages that s e c letter is their confidential and proprietary information and repeatedly we said joe's rosenthal please challenge this for example how can press releases saying this is a two to four billion dollar net opportunity how is that confidential if they put it out there for the public to consume things where on the internet there were investor conferences where they said this is going to be eight hundred million dollars barrels of oil and they continued to do that after their scientists including ms fry who was the team lead on the project after they pushed back to such a degree that anadarko has an internal police force that's a coll risk it's the r c t risk consideration team i can't really see i'm sorry but they're there to come in and say hey if we're getting a little overzealous on the exploration side come to us we will we will set the record straight and we will bring a neutral set of isis and you know what they said you're overstating the size of this this oil field you're overstating shenandoah and here's the real number you should use they all push back the scientists all push back we challenge anadarko repeatedly tell us it can't be that every single part of the s c c letter is protected because a lot of it's already been disclosed publicly can't be that a non disclosure agreement protects fraud so tell us tell us what do we need to redact at one point in one of their briefs they identified three items three items that they thought in that letter were protected now they've course they've always maintained that the entire letter is their property but we rejected those three items and said to them and said ok if we pull these three out can we then make a deal that frye can disclose the s e c letter and they said no and what that clarifies is why the only relief the only options frye has are exactly why the declaratory judgment act exists she can quit and go home give up she can just give the s e c letter to a shareholder and hope for the best where she can seek judicial intervention in a situation where the facts are settled and ripe for