Sarbanes-Oxley Act
Murray v. UBS Securities LLC
Date: Nov. 24, 2025
Issue: Under Sarbanes-Oxley’s burden-shifting framework, must a whistleblower prove his employer acted with a “retaliatory intent” as part of his case in chief, or does the employer bear the burden of proving a lack of “retaliatory intent”?
Case Summary: The U.S. Supreme Court declined to review a UBS employee’s retaliation lawsuit concerning whether the Sarbanes-Oxley Act (SOX) requires a whistleblower to show that an employer acted with “retaliatory intent” or instead puts the burden on the employer to prove the absence of such intent.
SOX prohibits publicly traded companies and their contractors from discharging, demoting, suspending, threatening, harassing, or in any other manner discriminating against an employee in the terms and conditions of employment because of any employee’s lawful act under 18 U.S.C. § 1514A(a). Any civil action to enforce this prohibition is governed by the burden-shifting framework in 49 U.S.C. § 42121(b). Under this framework, a plaintiff must first show that the protected activity “was a contributing factor in the unfavorable personnel action alleged in the complaint” (Contributing Factor Standard). If the plaintiff meets this burden, the employer can still avoid liability if it demonstrates, by clear and convincing evidence, it would have taken the same unfavorable personnel action absent the protected activity.
Plaintiff Trevor Murray was a UBS securities strategist who filed a SOX whistleblower claim after he was let go as part of a reduction in force five to six months after complaining that he was being pressured to “skew his research.” There was evidence presented at trial that his manager considered trying to find him another position in the company before he was let go as part of the reduction in force. The jury found in Murray’s favor after the court declined to include retaliatory intent as an element in its jury instructions for the Contributing Factor Standard, and instead ruled protected activity only needs to have “tended to affect [the termination] in any way.”
On appeal, a Second Circuit panel reversed and ruled to prevail on the “contributing factor” element of a SOX antiretaliation claim, a plaintiff must prove that their employer took adverse action against them with retaliatory intent. The Second Circuit’s decision split from the Fifth and Ninth Circuits’ position on the issue. The Second Circuit’s holding that retaliatory intent is required was “expressly predicated” on the word “discriminate” in §1514A(a). In a unanimous opinion delivered by Justice Sotomayor, the U.S. Supreme Court ruled that employees need not prove “retaliatory intent” to receive federal protection under SOX. The Court’s decision, however, left unaddressed UBS’s objection to the trial court’s jury instruction that defined a “contributing factor” as something that “tended to affect in any way” the termination decision. The Court remanded to the Second Circuit for further proceedings.
On remand, a split Second Circuit panel ruled for UBS, concluding the jury instructions that preceded Murray’s district court win was too unclear. UBS argued the instruction was overbroad because it allowed the jury to consider effects that did not contribute to Mr. Murray’s termination. The Second Circuit agreed, concluding the district court’s instruction conflicted with the statutory text. “Whistleblowing may tend to affect termination generally, without actually being partly responsible for a particular plaintiff’s termination,” according to the Second Circuit. Instead, a contributing factor “must actually cause or help cause the termination decision — it is not enough merely to influence the termination, or generally to be the type of thing that tends to cause termination.”
Murray petitioned the U.S. Supreme Court for review for the second time, arguing that the Second Circuit adopted a definition of “contributing factor” that conflicts with every other circuit that has addressed the issue. Murray contended that the district court correctly instructed the jury that a “contributing factor” is any element that alone or in combination with other factors tends to affect an employer’s decision in any way. According to Murray, at least ten circuits interpret Section 42121(b) and comparable whistleblower statutes in the same broad manner. Murray also asserted that the Second Circuit’s efforts to distinguish those cases were unconvincing because the meaning of “contributing factor” remains consistent across statutes that use the same burden shifting framework. By rejecting the widely accepted tends to affect in any way standard, the Second Circuit created an outlier rule, increased the evidentiary burden on whistleblowers, and prevented plaintiffs from relying on evidence such as employer knowledge and close timing, according to Murray.
Bottom Line: Although the Supreme Court confirmed that SOX does not require whistleblowers to prove retaliatory intent, Murray ultimately lost on remand because the Second Circuit ruled that flawed and overly broad jury instructions tainted his verdict, and the Supreme Court declined to revive the case.
