SCOTUS will decide whistleblower case

The US Supreme Court has granted certiorari to decide whether a Sarbanes-Oxley whistleblower must prove his employer acted with a “retaliatory intent” as part of his case in chief, or whether the lack of “retaliatory intent” is part of the affirmative defense on which the employer bears the burden of proof. Murray v. USB Securities (US S Ct cert granted 05/01/2023) [Briefs].

Trevor Murray claims that UBS Securities fired him in retaliation for reporting alleged fraud on shareholders to his supervisor. Murray sued UBS under the whistleblower protection provision of the Sarbanes-Oxley Act, and he ultimately prevailed at trial. The district court,  however, did not instruct the jury that a SOX antiretaliation claim requires a showing of the employer's retaliatory intent.

So the 2nd Circuit reversed, holding that a whistleblower-employee like Murray must prove by a preponderance of the evidence that the employer took the adverse employment action against the whistleblower-employee with retaliatory intent—i.e. , an intent to "discriminate against an employee ... because of" lawful whistleblowing activity. Murray v. USB Securities (2nd Cir 08/05/2022) [PDF].

We expect oral arguments in the fall, with a decision in 2024.