UNITED STATES DISTRICT COURT FOR THE …blogs.reuters.com/alison-frankel/files/2013/08/liuv...Ragan Naresh (pro hac vice) KIRKLAND & ELLIS LLP 655 Fifteenth Street, N.W. Suite 1200

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

MENG-LIN LIU, Plaintiff, - against - SIEMENS AG, Defendant.

13-CV-0317 (WHP)

ECF CASE

ORAL ARGUMENT REQUESTED

REPLY MEMORANDUM IN SUPPORT OF SIEMENS AG’S MOTION TO DISMISS

Eric C. Liebeler (pro hac vice pending) SIEMENS CORPORATION 300 New Jersey Avenue, N.W. Suite 1000 Washington, D.C. 20001 Tel.: (202) 434-4800 [email protected] Counsel for Siemens AG

Brant W. Bishop, P.C. Ragan Naresh (pro hac vice) KIRKLAND & ELLIS LLP 655 Fifteenth Street, N.W. Suite 1200 Washington, D.C. 20005 Tel.: (202) 879-5000 [email protected] [email protected] Counsel for Siemens AG

Case 1:13-cv-00317-WHP Document 20 Filed 08/08/13 Page 1 of 16

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TABLE OF CONTENTS

Page

INTRODUCTION ...........................................................................................................................1

ARGUMENT ...................................................................................................................................2

I. The Anti-Retaliation Provision Does Not Reach The Extraterritorial Conduct Alleged In The Amended Complaint. ..................................................................................2

II. The Amended Complaint Fails To Allege That Mr. Liu Was A Whistleblower Who Engaged In Protected Activity. ...................................................................................6

CONCLUSION ..............................................................................................................................10


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TABLE OF AUTHORITIES

Page(s)

CASES

Allen v. Admin. Review Bd., 514 F.3d 468 (5th Cir. 2008) ..................................................................................................... 10

Asadi v. G.E. Energy (USA), LLC, No. 12-20522, 2013 WL 3742492 (5th Cir. July 17, 2003) ............................................... passim

Carnero v. Boston Scientific Corp., 433 F.3d 1 (1st Cir. 2006) ....................................................................................................... 2, 9

Day v. Staples, Inc., 555 F.3d 42 (1st Cir. 2009) ....................................................................................................... 10

In re DDAVP Indirect Purchaser Antitrust Litigation, 903 F. Supp. 2d 198 (S.D.N.Y. 2012) ......................................................................................... 5

In re Gupta, Case No. 2010-SOX-54, 2011 WL 121916 (Dep’t of Labor Jan. 7, 2011) .............................. 10

In re Royal Bank of Scotland Grp., 765 F. Supp. 2d 327 (S.D.N.Y. 2011) ......................................................................................... 6

In re Villanueva, ARB Case No. 09-108, 2011 WL 6981989 (Dep’t of Labor Dec. 22, 2011) ............................. 9

Morrison v. Nat’l Australia Bank Ltd., 130 S. Ct. 2869 (2010) ....................................................................................................... passim

Murray v. UBS Securities, LLC, No. 12 Civ. 5914 (JMF), 2013 WL 2190084 (S.D.N.Y. May 21, 2013) .................................... 7

Nollner v. Southern Baptist Convention, Inc., 852 F. Supp. 2d 986 (M.D. Tenn. 2012) ................................................................................... 10

Norex Petroleum Ltd. v. Access Industries, Inc., 631 F.3d 29 (2d Cir. 2010) ...................................................................................................... 3, 6

Souryal v. Torres Advanced Enterprise Solutions, LLC, 847 F. Supp. 2d 835 (E.D. Va. 2012) .......................................................................................... 4

STATUTES

15 U.S.C. § 78aa ............................................................................................................................. 3

15 U.S.C. § 78j ................................................................................................................................ 3

15 U.S.C. § 78u-6 .................................................................................................................. passim

15 U.S.C. § 7201 ............................................................................................................................. 7


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18 U.S.C. § 1341 ........................................................................................................................... 10

18 U.S.C. § 1343 ........................................................................................................................... 10

18 U.S.C. § 1344 ........................................................................................................................... 10

18 U.S.C. § 1348 ........................................................................................................................... 10

18 U.S.C. § 1514A ........................................................................................................................ 10

18 U.S.C. § 1964 ............................................................................................................................. 3

REGULATIONS

17 C.F.R. § 240.13b2-1 ................................................................................................................. 10

17 C.F.R. § 240.21F-2 .................................................................................................................... 4

17 C.F.R. § 240.21F-3 .................................................................................................................... 4

17 C.F.R. § 240.21F-8 .................................................................................................................... 4


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INTRODUCTION

Unable to connect this case to the United States and without answers to the precedent

squarely foreclosing his arguments, Plaintiff Meng-Lin Liu glosses over the extraterritorial nature of

his amended complaint and simply ignores the law requiring dismissal. In fact, Mr. Liu’s opposition

brief ends up highlighting the many reasons why the amended complaint must be dismissed.

First, the opposition identifies nothing in the Dodd-Frank Act’s Anti-Retaliation Provision

that overcomes the strong presumption against applying that provision to the extraterritorial conduct

alleged in the amended complaint. Mr. Liu merely reiterates arguments that courts have repeatedly

rejected: that the breadth of the provision means it must apply overseas, that the extraterritorial

reach of a different part of the statute carries over to every other part of the law, and that the SEC’s

regulations on bounty awards evince the necessary congressional intent to extend the Anti-

Retaliation Provision beyond the United States. Siemens pointed out the fundamental flaws in each

of these arguments in its opening brief. Mr. Liu responded by simply ignoring the controlling cases

and by straining to find even a small domestic link in this case. But in so doing, Mr. Liu only

underscores the extraterritorial nature of the case: Mr. Liu is a foreign employee who allegedly

raised concerns about foreign transactions and was allegedly retaliated against by a foreign company

operating in a foreign country. See Opp’n at 1–2.

Second, Mr. Liu all but concedes that when his contract was terminated he was not a

“whistleblower” whose disclosures were “required or protected” by the Sarbanes-Oxley Act

(“SOX”), a showing he must make to satisfy the requirements of the Anti-Retaliation Provision. As

the Fifth Circuit recently held, Dodd-Frank protects only those who blow the whistle to the SEC—

something Mr. Liu admits he did not do until months after the alleged retaliation. See Am. Compl.

¶¶ 157–58, 167–68; Opp’n at 1–2; Asadi v. G.E. Energy (USA), LLC, No. 12-20522, 2013 WL

3742492 (5th Cir. July 17, 2003). Moreover, SOX, which Mr. Liu identifies as the only law that


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protected his internal disclosures, does not apply at all to foreign employees of foreign companies.

See Carnero v. Boston Scientific Corp., 433 F.3d 1, 7–9 (1st Cir. 2006). Mr. Liu concedes this point

yet fails to cite even a single case to support his theory that SOX could somehow still protect his

disclosures for purposes of the Anti-Retaliation Provision. See Opp’n at 12–13.

At bottom, the opposition fails to resolve the fatal flaws in Mr. Liu’s amended complaint.

Further amendment would be futile, and the amended complaint should be dismissed with prejudice.

ARGUMENT

I. The Anti-Retaliation Provision Does Not Reach The Extraterritorial Conduct Alleged In The Amended Complaint.

The Supreme Court has repeatedly held that federal statutes apply only within the United

States unless Congress has clearly extended their reach to foreign activity. See Morrison v. Nat’l

Australia Bank Ltd., 130 S. Ct. 2869, 2877 (2010). When a provision is silent as to whether it

applies extraterritorially, as here, there is a well-established presumption that it does not reach

foreign conduct. See id. at 2881 (recognizing “the traditional principle that silence means no

extraterritorial application”); Asadi v. G.E. Energy (USA), LLC, No. 4:12-cv-345, 2012 WL

2522599, at *4 (S.D. Tex. June 28, 2012) (“[T]he language of the Dodd-Frank Anti-Retaliation

Provision is silent regarding whether it applies extraterritorially.”). Mr. Liu has no meaningful

response to this settled law, so he simply ignores the cases Siemens cited in its opening brief and

recycles arguments that the courts have routinely rejected.

First, Mr. Liu argues that “the plain language of the [Anti-Retaliation Provision] contains

very broad language that includes all employees, both foreign and domestic.” Opp’n at 3. This

argument, however, has been squarely rejected in cases Siemens previously cited. See Mem. at 8–9.

The Anti-Retaliation Provision provides generically that “[n]o employer” shall retaliate against “a

whistleblower” and creates a cause of action for “an[y] individual” who suffers such retaliation. 15


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U.S.C. § 78u-6(h)(1); see Opp’n at 3–4. In Morrison, the Supreme Court considered similarly broad

language in Section 10(b) of the Securities Exchange Act, which makes it unlawful for “any person”

to violate the SEC’s fraud rules. 130 S. Ct. at 2881–82 (quoting 15 U.S.C. § 78j). The Court held

that the mere breadth of the statutory language did not provide the necessary “affirmative indication”

of Congress’s intent to rebut the presumption against extraterritoriality. Id. at 2883. The Second

Circuit has similarly held that the federal RICO statute does not authorize private actions based on

extraterritorial conduct even though it provides that “[a]ny person injured,” 18 U.S.C. § 1964(c), by

racketeering activity may sue in federal court. See Norex Petroleum Ltd. v. Access Industries, Inc.,

631 F.3d 29, 33 (2d Cir. 2010) (per curiam). Morrison, Norex, and other cases establish the rule that

generically broad language does not satisfy the requirement of clear congressional intent on the

specific question of extraterritorial application. Mr. Liu’s opposition brief completely ignores that

rule, which squarely forecloses his argument here. See Opp’n at 3–4.

Second, Mr. Liu argues that “by specifically providing for extraterritorial jurisdiction in a

related section of the statute, Congress clearly evidenced its intention to protect SEC whistleblowers

located abroad.” Opp’n at 4 (citing 15 U.S.C. § 78aa(b)). As the Court knows, however, this

argument has been squarely rejected: The express extension of extraterritorial jurisdiction in a

different part of the Dodd-Frank Act cuts against Mr. Liu’s argument. See Mem. at 7–9; see also

Asadi, 2012 WL 2522599, at *4 (“The language of Dodd-Frank’s Section 929P(b) thus strengthens

the conclusion that the Anti-Retaliation Provision does not apply extraterritorially.”). In Morrison,

the Supreme Court explained that “when a statute provides for some extraterritorial application, the

presumption against extraterritoriality operates to limit that provision to its terms.” 130 S. Ct. at

2883. The opposition does not address this controlling, adverse precedent. See Opp’n at 4. Again,

Mr. Liu simply pretends it does not exist.


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Third, Mr. Liu argues that the Anti-Retaliation Provision must apply extraterritorially

because SEC regulations authorize the payment of bounty awards to foreign whistleblowers who

provide the agency with information about federal securities violations. See Opp’n at 4–5 (citing, for

example, 17 C.F.R. § 240.21F-8(c)(2)). In so arguing, however, Mr. Liu confuses two different parts

of the Dodd-Frank Act: He improperly tries to borrow the extraterritorial reach of the bounty

program provision to supply the express extraterritorial authorization that is missing from the wholly

separate Anti-Retaliation Provision. The bounty program rewards whistleblowers, foreign or

domestic, who provide information that leads to a successful government enforcement action. See

15 U.S.C. § 78u-6(b); 17 C.F.R. § 240.21F-3(a)(3). Whether the SEC has jurisdiction to pursue

foreign fraud cases or to award bounties to foreign whistleblowers is not at issue here. Rather, the

question is whether the Anti-Retaliation Provision reaches extraterritorial conduct. That part of the

law is set out in its own subsection of the Dodd-Frank Act and does not mention any extraterritorial

application at all. See 15 U.S.C. § 78u-6(h). The SEC’s anti-retaliation regulations are similarly

separated from its rules on the bounty program. See 17 C.F.R. § 240.21F-2. Siemens explained the

sharp distinction between the bounty program and the Anti-Retaliation Provision in its opening

brief—a distinction Mr. Liu again ignores. Mem. at 9–10; Opp’n at 4–5.1 Once again, the decision

to expressly extend other parts of the Dodd-Frank Act to foreign conduct confirms that the Anti-

Retaliation Provision—which does not contain a similar express statement on its extraterritorial

1 In addition, Mr. Liu still has not cited any authority suggesting that agency regulations promulgated after a statute is enacted can somehow provide the clear indication that Congress intended the law to apply to foreign conduct. See Mem. at 9 (citing Morrison, 130 S. Ct. at 2877). “[N]o regulation could supply, on Congress’s behalf, the clear legislative intent required to overcome . . . the presumption against extraterritoriality.” Souryal v. Torres Advanced Enterprise Solutions, LLC, 847 F. Supp. 2d 835, 843 (E.D. Va. 2012) (internal quotation marks omitted).


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application—was clearly not intended to apply to foreign conduct. If Congress had intended an

extraterritorial application, it would have expressly provided for it.

Finally, Mr. Liu argues that the Morrison framework is altogether inapplicable because,

unlike the defendant in that Section 10(b) case, Siemens has “voluntarily subjected itself to the full

range of U.S. securities laws in return for the benefits of being listed on a U.S. exchange.” Opp’n at

7. This argument is badly misdirected. If Siemens “voluntarily subjected itself to” U.S. securities

laws, it only subjected itself to the laws as far as Congress intended them to reach. As noted above,

Congress did not intend the Dodd-Frank Anti-Retaliation Provision to reach extraterritorial conduct,

and the “subjecting itself” argument does not change that point. In Morrison itself, just as here, the

defendant had “voluntarily subjected itself” to U.S. securities laws by registering American

Depository Receipts (“ADRs”) for trade on the New York Stock Exchange. See Morrison, 130

S. Ct. at 2875.2 But that did not alleviate the problem of having to apply the U.S. securities laws to

extraterritorial conduct, which the Supreme Court refused to do. Id. at 2883, 2888. There is no

meaningful distinction between the securities law at issue in Morrison and the one at issue here: The

Supreme Court has rejected the argument that the presumption against extraterritoriality applies only

to certain federal statutes. See id. at 2881 (“Rather than guess anew in each case, we apply the

presumption in all cases, preserving a stable background against which Congress can legislate with

predictable effects.”). Nor is the mere listing of Siemens ADRs on the New York Stock Exchange

2 Mr. Liu disingenuously claims that Siemens AG’s “common shares are publicly traded on the New York Stock Exchange.” Opp’n at 1. This allegation is false, and Mr. Liu appears to know it is false. See id. at 11 (acknowledging that Siemens ADRs, not common shares, are listed on the NYSE). Indeed, it is public knowledge that Siemens ADRs, not common shares, are listed on the NYSE. See Siemens AG Listing, New York Stock Exchange (Aug. 7, 2013, 10:00 PM), http://www.nyse.com/about/listed/si.html; see also In re DDAVP Indirect Purchaser Antitrust Litigation, 903 F. Supp. 2d 198, 208 (S.D.N.Y. 2012) (“[I]t is well established that courts may take judicial notice of publicly available documents on a motion to dismiss.”). Siemens further confirmed this fact in its Rule 7.1 Corporate Disclosure Statement. See Dkt. No. 9 (June 11, 2013).


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enough to make this a case about domestic (rather than foreign) conduct. It is well-established that

plaintiffs cannot circumvent the presumption against extraterritoriality simply by identifying some

minimal connection between their lawsuit and the United States. See Morrison, 130 S. Ct. at 2884;

Norex, 631 F.3d at 33; see also In re Royal Bank of Scotland Grp., 765 F. Supp. 2d 327, 336

(S.D.N.Y. 2011) (“The idea that a foreign company is subject to U.S. Securities laws everywhere it

conducts foreign transactions merely because it has ‘listed’ some securities in the United States is

simply contrary to the spirit of Morrison.”). Mr. Liu’s struggle to identify a single meaningful

domestic connection only highlights the fact that all the relevant conduct here is foreign.

In short, the opposition fails to show that the Anti-Retaliation Provision applies to a foreign

employee working for a foreign company in a foreign country. As a result, Mr. Liu’s amended

complaint should be dismissed with prejudice.

II. The Amended Complaint Fails To Allege That Mr. Liu Was A Whistleblower Who Engaged In Protected Activity.

The Anti-Retaliation Provision protects only (1) identified persons (“whistleblowers”)

(2) against retaliation for specified conduct (making disclosures that were “required or protected” by

law). 15 U.S.C. § 78u-6(h)(1)(A). Mr. Liu is unable to satisfy either statutory requirement.

First, Mr. Liu was not a protected person—i.e., a “whistleblower”—when Siemens China

allegedly retaliated against him. As Siemens pointed out in its opening brief, Mem. at 13–14, Dodd-

Frank’s statutory text confirms that one becomes a “whistleblower” by providing “information

relating to a violation of the securities laws to the Commission, in a manner established, by rule or

regulation, by the Commission,” 15 U.S.C. § 78u-6(a)(6) (emphasis added). It then goes on to

prohibit retaliation against those whistleblowers for any lawful act done:

(i) in providing information to the Commission in accordance with this section;


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(ii) in initiating, testifying in, or assisting in any investigation or judicial or administrative action of the Commission based upon or related to such information; or

(iii) in making disclosures that are required or protected under the Sarbanes-Oxley Act of 2002 (15 U.S.C. § 7201 et seq.), this chapter, including section 78j-1(m) of this title, section 1513(e) of Title 18, and any other law, rule, or regulation subject to the jurisdiction of the Commission.

15 U.S.C. § 78u-6(h)(1)(A). Because Mr. Liu had not contacted the SEC when the alleged

retaliation occurred, see Am. Compl. ¶¶ 157–58, 167–68, he did not qualify for any protection under

the statute at the time.

The opposition offers no meaningful response. Mr. Liu points to several district court

opinions concluding that subsection 6(h)(1)(A)(iii) would be superfluous if disclosure to the SEC

were necessary to become a protected whistleblower. See Opp’n at 8 (citing, for example, Murray v.

UBS Securities, LLC, No. 12 Civ. 5914 (JMF), 2013 WL 2190084 (S.D.N.Y. May 21, 2013)). As

the Fifth Circuit recently held, however, this confuses the question of who is a protected person

under subsection 6(a)(6) with the conduct against which retaliation is prohibited by subsection

6(h)(1)(A). See Asadi v. G.E. Energy (USA), LLC, No. 12-20522, 2013 WL 3742492, at *4–5 (5th

Cir. July 17, 2013). That recognition, furthermore, eliminates the supposed superfluity on which Mr.

Liu relies: Subsection 6(h)(1)(A)(iii) plainly provides protection even if the disclosures to the SEC

were not the target of the retaliation. Id. at *5–6. The court used the following example to illustrate

the point: A mid-level manager discovers a securities violation and reports it both to the company’s

CEO and to the SEC. The CEO, not yet aware of the disclosure to the SEC, immediately fires the

manager. Subsection 6(h)(1)(A)(iii) alone protects the manager from that retaliation:

The mid-level manager, clearly a “whistleblower” as defined in Dodd-Frank because he provided information to the SEC relating to a securities law violation, would be unable to prove that he was retaliated against because of the report to the SEC. Accordingly, the first and second category of protected activity would not shield this whistleblower from retaliation. The third category of protected activity, however, protects the mid-level manager. In this scenario, the internal disclosure to the CEO,


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a person with supervisory authority over the mid-level manager, is protected under . . . the anti-retaliation provision enacted as part of the Sarbanes-Oxley Act . . . . Accordingly, even though the CEO was not aware of the report to the SEC at the time he terminated the mid-level manager, the mid-level manager can state a claim under the Dodd-Frank whistleblower-protection provision because he was a “whistleblower” and suffered retaliation based on his disclosure to the CEO, which was protected under SOX.

Id. at *6. This proper understanding of subsection 6(h)(1)(A)(iii) obviates the need or discretion to

distort the plain meaning of other parts of the statute. Congress made clear that an employee

qualifies as a “whistleblower” only upon providing information to the SEC. See 15 U.S.C. § 78u-

6(a)(6); Asadi, 2013 WL 3742492, at *8. That rule forecloses Mr. Liu’s entire suit as a matter of law.

Rather than grapple with the merits of this argument, Mr. Liu insists that Siemens waived it

by supposedly “expressly conced[ing] that Mr. Liu is entitled to Dodd-Frank anti-retaliation

protection if he made disclosures that are required or protected under the Sarbanes-Oxley Act.”

Opp’n at 8. This is patently false: Siemens in fact made clear that it “does not acknowledge that

Mr. Liu is entitled to Dodd-Frank whistleblower protection if he engaged in conduct that was

protected under the Sarbanes-Oxley Act.” Mem. at 14 n.5 (brackets and internal quotation marks

omitted).3 From the outset of this case, Siemens has explained that Mr. Liu fell outside the statutory

definition of a protected whistleblower while he was working at Siemens China. See Siemens AG’s

Pre-Motion Letter (June 11, 2013), at 3 n.* (“Under a plain reading of the statute, Mr. Liu did not

even qualify for whistleblower protection until he contacted the SEC . . . .”); Mem. at 13–14 (“Mr.

Liu’s claims would also properly be dismissed because he was not a protected ‘whistleblower’

before he brought his concerns to the SEC, which did not occur until well after his contract expired 3 Elsewhere, Mr. Liu claims that Siemens made “repeated concessions throughout its brief that Mr. Liu was entitled to protection if he made internal disclosures that were ‘required or protected’ under one of the laws enumerated in Section 78u-6(h)(1)(A)(iii).” Opp’n at 9 n.2. The opposition cannot point to a single such concession. To the contrary, Siemens has consistently pointed out that establishing a “required or protected” statement is a necessary (but far from sufficient) condition for the amended complaint to survive the motion to dismiss.


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and all of the alleged retaliation had taken place.”). Siemens even filed a notice of supplemental

authority citing the Fifth Circuit’s decision in Asadi a full week before Mr. Liu filed his opposition.

Dkt. No. 16 (July 24, 2013). Mr. Liu has plainly had ample opportunity to address this issue on the

merits but failed to do so.4

Second, the opposition cannot identify protected conduct, specifically how Mr. Liu’s internal

disclosures were “protected under Section 806 of the Sarbanes-Oxley Act,” as the Anti-Retaliation

Provision requires. See Opp’n at 7. As Siemens previously explained, SOX “provides no protection

for foreign employees working primarily outside the United States.” Mem. at 12 (citing Carnero v.

Boston Scientific Corp., 433 F.3d 1 (1st Cir. 2006), and In re Villanueva, ARB Case No. 09-108,

2011 WL 6981989 (Dep’t of Labor Dec. 22, 2011) (en banc)). Against this background, SOX could

not have protected the internal disclosures Mr. Liu made while working in China for a Chinese

company. Mr. Liu does not contend that SOX applies extraterritorially, arguing instead that

employees are covered by the Anti-Retaliation Provision so long as they make disclosures “of a

type” with those actually protected by SOX. See Opp’n at 12–13. But the text of the statute, which

plainly prohibits retaliation based on disclosures that “are required or protected” by SOX, squarely

forecloses this claim. 15 U.S.C. § 78u-6(h)(1)(A)(iii) (emphasis added). Indeed, Mr. Liu is unable

to cite any precedent that would support his novel reading of the statute.

If the facts that Mr. Liu claims resulted in the alleged retaliation against him were true (which

Siemens denies), they could potentially constitute violations of the FCPA. But the opposition is

unable to offer a meaningful response to Siemens’s argument that SOX does not protect an

employee’s disclosure of alleged FCPA violations. See Mem. at 13. SOX protects employees only

4 Although Mr. Liu has already had this opportunity, Siemens would not object if he requested leave to file a three-page surreply limited to the Fifth Circuit’s decision in Asadi.


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to the extent they report violations of “(1) 18 U.S.C. § 1341 (mail fraud); (2) 18 U.S.C. § 1343 (wire

fraud); (3) 18 U.S.C. § 1344 (bank fraud); (4) 18 U.S.C. § 1348 (securities fraud); (5) any rule or

regulation of the SEC; or (6) any provision of federal law relating to fraud against shareholders.”

Allen v. Admin. Review Bd., 514 F.3d 468, 476–77 (5th Cir. 2008). FCPA violations fall outside

those categories. See In re Gupta, Case No. 2010-SOX-54, 2011 WL 121916, at *5 (Dep’t of Labor

Jan. 7, 2011); see also Day v. Staples, Inc., 555 F.3d 42, 57 n.15 (1st Cir. 2009). Siemens cited these

authorities in its opening brief, but Mr. Liu has provided no meaningful response to them. Compare

Mem. at 13, with Opp’n at 11 & n.4.5 Instead, he simply generalizes from this enumerated list of

statutes by claiming, without any support, that SOX actually protects employees who report any

violation of “the securities laws.” Opp’n at 9. The clear text of the statute says otherwise. See 18

U.S.C. § 1514A(a)(1).6

At bottom, Mr. Liu’s failure to allege that he was a “whistleblower” who made disclosures

“required or protected” by law is an independent ground on which to dismiss the amended

complaint.

CONCLUSION

For the reasons above, the amended complaint fails to state a claim for relief. The flaws

Siemens has identified cannot be cured. Accordingly, the amended complaint should be dismissed

with prejudice.

5 Mr. Liu claims that Siemens based its argument about the interaction between SOX and the FCPA on Nollner v. Southern Baptist Convention, Inc., 852 F. Supp. 2d 986 (M.D. Tenn. 2012). See Opp’n at 11. In fact, Siemens cited the case only for the proposition that the FCPA itself did not require or protect his statements. See Mem. at 11–12. The Court need not consider this argument, as the opposition drops any suggestion that Mr. Liu’s alleged internal disclosures were required or protected by any law other than SOX. See Opp’n at 7–13. 6 The opposition also now claims that Mr. Liu reported violations of the SEC’s FCPA record-keeping provision, 17 C.F.R. § 240.13b2-1, even though it is not cited at all in his amended complaint. See Opp’n at 10.


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Respectfully Submitted,

Dated: August 8, 2013 /s/ Brant W. Bishop, P.C.

Eric C. Liebeler (pro hac vice pending) SIEMENS CORPORATION 300 New Jersey Avenue, N.W. Suite 1000 Washington, D.C. 20001 Tel.: (202) 434-4800 [email protected] Counsel for Siemens AG

Brant W. Bishop, P.C. Ragan Naresh (pro hac vice) KIRKLAND & ELLIS LLP 655 Fifteenth Street, N.W. Suite 1200 Washington, D.C. 20005 Tel.: (202) 879-5000 [email protected] [email protected] Counsel for Siemens AG


CERTIFICATE OF SERVICE

I, Brant W. Bishop, hereby certify that I caused a true and correct copy of the foregoing Reply Memorandum in Support of Siemens AG’s Motion to Dismiss to be served upon all counsel of record registered through the Court’s ECF system.

On this 8th day of August, 2013.

/s/ Brant W. Bishop, P.C.

Brant W. Bishop, P.C.

Counsel for Siemens AG


Documents

UNITED STATES DISTRICT COURT FOR THE …blogs.reuters.com/alison-frankel/files/2013/08/liuv...Ragan Naresh (pro hac vice) KIRKLAND & ELLIS LLP 655 Fifteenth Street, N.W. Suite 1200