Brian T. Ashe

Last year, Ashe led the Seyfarth Shaw LLP team representing San Francisco Digital Realty Trust Inc. at the U.S. Supreme Court in an important whistleblower case. The outcome was a 9-0 win authored by Associate Justice Ruth Bader Ginsburg.

The question concerned the whistleblowing provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 and the act's protections against employer retaliation.

"Under Dodd-Frank, you have to go to the SEC before you go to court," Ashe said. Because a Digital Realty employee sued first over his allegedly retaliatory firing for reporting violations of federal law, Ashe and his team argued, his failure to take the matter to the SEC waived any whistleblower protection. They moved to dismiss the employee's complaint.

"I thought I was right on the law, but I lost at the district court" before U.S. District Judge Edward M. Chen of San Francisco, Ashe said.

District and circuit courts around the country had split on the issue.

"It was a bubbling, boiling cauldron of circuit splits," Ashe said. The high court granted his cert petition, and he headed for Washington for oral argument. Digital Realty Trust Inc. v Somers, 16-1276.

"I can't make myself the hero here," Ashe said, noting his team brought on Kannon K. Shanmugam, a veteran Supreme Court practitioner, to argue before the justices. "He clerked for Scalia. He was the one for the job. I was at the counsel table, feeding him notes."

Ginsburg, reversing the 9th Circuit, wrote in February 2018 that Dodd-Frank's anti-retaliation provision does not extend to an individual who has not reported a securities law violation to the SEC. On remand, Chen granted Digital Realty's motion for summary judgment. It was a significant win for publicly traded companies.

And it was a momentous occasion for Ashe. "It's super cool to walk up those marble steps," he said of his trip to the Supreme Court. "I was there with the icons of our practice, helping to frame new law. I got to shake [retired] Justice [John Paul] Stevens' hand; he was there for the day."

At each place on the counsel table, court staffers place a white quill pen, a traditional link to the court's earliest days. Ashe keeps his, handsomely framed by his wife, on the wall of his office. "A rare as hen's teeth trophy," he said.

-- John Roemer