Boris Khazin v. TD Ameritrade Holding Corp, 773 F.3d 488

Background

Boris Khazin, a former TD Ameritrade employee, signed a predispute arbitration agreement and alleged he was fired for reporting securities-pricing violations to his supervisor.
Khazin sued under Dodd-Frank’s whistleblower retaliation provision (15 U.S.C. § 78u-6(h)), asserting the termination was retaliatory; he sought to avoid arbitration under Dodd-Frank’s anti-arbitration policy.
TD moved to compel arbitration under the employment agreement; the District Court compelled arbitration and dismissed the complaint, reasoning the Anti-Arbitration Provision did not apply retroactively to agreements formed before Dodd-Frank.
The Anti-Arbitration Provision at issue expressly bars enforcement of predispute arbitration agreements that ‘‘require arbitration of a dispute arising under’’ 18 U.S.C. § 1514A (Sarbanes-Oxley § 806), and analogous language appears elsewhere in Dodd-Frank.
The Third Circuit affirmed on a different ground: Dodd-Frank’s anti-arbitration language applies to disputes arising under Section 1514A (SOX), not to the separate Dodd-Frank retaliation cause of action (15 U.S.C. § 78u-6(h)), so Khazin’s Dodd-Frank claim is arbitrable.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Dodd-Frank’s anti-arbitration provisions bar arbitration of Khazin’s Dodd-Frank whistleblower claim	Khazin: Dodd-Frank’s anti-arbitration policy reflects congressional intent to prevent arbitration of whistleblower retaliation claims generally, so his Dodd-Frank claim should be exempt	TD: The Anti-Arbitration Provision applies only to claims ‘‘arising under’’ 18 U.S.C. § 1514A (SOX); Dodd-Frank claims are located in a different statutory provision and thus are not covered	Court: Held TD; the Anti-Arbitration Provision is limited to § 1514A (SOX) claims and does not exempt § 78u-6(h) Dodd-Frank claims from arbitration
Whether omission of an anti-arbitration clause in Dodd-Frank should be read as inadvertent or deliberate	Khazin: The omission was an unintended gap and inconsistent with Dodd-Frank’s whistleblower protections	TD: The textual and structural differences show Congress deliberately inserted anti-arbitration language in some statutes but not in § 78u-6(h)	Court: Held TD; applied presumption that differing amendments are intentional and deferred to statutory text
Whether agency/FINRA/SEC materials compel a different interpretation	Khazin: FINRA/SEC rule changes and statements suggest whistleblower disputes need not be arbitrated	TD: FINRA/SEC guidance addresses SOX disputes and does not alter unambiguous statutory text	Court: Held TD; agency materials do not override unambiguous statutory structure and do not cover § 78u-6(h) claims
Whether the FAA’s policy favoring arbitration is overridden by Dodd-Frank	Khazin: Dodd-Frank’s purpose and anti-arbitration provisions reflect a congressional command to bar arbitration of whistleblower claims	TD: No contrary congressional command applies to § 78u-6(h); FAA presumption remains	Court: Held TD; no clear congressional command nullifies arbitration for § 78u-6(h) claims, so FAA policy controls

Key Cases Cited

Landgraf v. USI Film Prods., 511 U.S. 244 (addressing presumption against retroactivity)
Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1 (establishing liberal federal policy favoring arbitration)
CompuCredit Corp. v. Greenwood, 132 S. Ct. 665 (federal statutory claims are arbitrable absent clear congressional command)
Shearson/American Exp., Inc. v. McMahon, 482 U.S. 220 (Congressional command can override FAA; courts enforce arbitration agreements unless Congress clearly provides otherwise)
Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (when Congress amends one provision but not another, omission is presumed intentional)
Santoro v. Accenture Fed. Servs., LLC, 748 F.3d 217 (4th Cir.) (interpreting Dodd-Frank anti-arbitration provisions; rejected overbroad reading that would invalidate arbitration agreements wholesale)