In an article published in Law360, S&C Litigation partners Annie Ostrager and Diane McGimsey discuss the significance of the Supreme Court’s decision to review Murray v. UBS Securities, which could have major ramifications for the scope of federal whistleblower protections.
The question before the Court is whether, applying the burden-shifting framework applicable to cases under the Sarbanes-Oxley Act of 2002, plaintiffs must prove that their employers acted with a “retaliatory intent” as part of their case in chief, or whether the lack of “retaliatory intent” is instead part of an affirmative defense on which employers bear the burden of proof.
Circuit courts are divided on the answer. In Murray, the U.S. Court of Appeals for the Second Circuit held that retaliatory intent is an element of the whistleblower protection provision of section 1514A of the Sarbanes-Oxley Act, while the Fifth and Ninth Circuits have held that it is not.
Annie and Diane note that if the Second Circuit’s interpretation stands, it will become more difficult for would-be whistleblower-employees to succeed on anti-retaliation claims under the Sarbanes-Oxley whistleblower statute, as they will no longer be able to show only that their protected activity was a “contributing factor” to their termination.
Read “What To Expect From High Court's Whistleblower Case.”