On July 5, NELA joined the Anti-Fraud Coalition and Better Markets as amici in Murray v. UBS Securities, LLC, urging the U.S. Supreme Court to fully ensure safeguards against whistleblower retaliation. Petitioner Murray was fired after refusing to engage in illegal reporting and brought a case for unlawful retaliation under the Sarbanes-Oxley Act of 2002. Although Murray won at trial, the Second Circuit vacated the jury’s verdict, holding that to prove retaliation, Murray was required to show that UBS acted with retaliatory intent or discriminatory animus prompted by the whistleblowing activity.
Our amicus brief argues that the Second Circuit erred in its holding, which conflicts with both the plain language of the statute and the policy considerations behind the statute. The statute, which expressly provides that one alleging retaliation need only show that her protected activity was a ‘contributing factor’ in an adverse employment action, at which point the burden shifts to the employer to demonstrate, if possible, that it would have taken the adverse action even absent the protected behavior. Additionally, the congressional intent behind the statute was to ensure robust protections for whistleblowers. As the brief states, “The Second Circuit’s opinion below imposes an elevated burden on plaintiffs that Congress did not intend and that would ultimately chill would-be whistleblowers from coming forward with information that could prevent, or at a minimum expose, the next great financial fraud.”
We are grateful to Jacklyn DeMar, The Anti-Fraud Coalition (DC) and NELA member Clayton Wire, Ogborn Mihm LLP (CO) for taking the lead in drafting the brief and NELA member Richard Renner, Tate & Renner (DC) for his valuable input and edits.