On August 5, 2022, the Second Circuit overturned a nearly $1 million jury award granted to a former employee of UBS Securities LLC (“UBS”). The Court held that the judge’s instruction to the jury—that Plaintiff was “not required to prove that his protected activity was the primary motivating factor in his termination”—was incorrect as a matter of law. Instead, the Sarbanes-Oxley Act (“SOX”) requires whistleblowers to specifically prove that the employer took the adverse employment action “with retaliatory intent.” Murray v. UBS Securities LLC et al., No. 20-4202.
Background
Trevor Murray sued UBS in 2014, alleging that he was terminated by UBS after he complained that he was pressured to alter his research, in violation of SOX’s antiretaliation provision, 18 U.S.C. § 1514A. Section 1514A prohibits publicly traded companies from taking adverse employment actions to “discriminate against an employee… because of” any lawful whistleblowing activity. 18 U.S.C. § 1514A(a). At trial, the district court instructed the jury on the elements of a section 1514A claim as follows:
First, that plaintiff engaged in activity protected by Sarbanes-Oxley;
Second, that UBS knew that plaintiff engaged in the protected activity;
Third, that plaintiff suffered an adverse employment action — here, the termination of his employment at UBS; and
Fourth, that plaintiff’s protected activity was a contributing factor in the termination of his employment.
For a protected activity to be a contributing...
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