On May 1, 2023, the Justices of the U.S. Supreme Court granted a petition for a writ of certiorari filed by a former UBS Securities LLC ("UBS" or the "Company") researcher, Trevor Murray. As such, the Supreme Court will soon hear argument in the whistleblower retaliation lawsuit filed by Murray against UBS, Murray v. UBS Securities, LLC. At trial, the jury returned a $1.7 million verdict in favor of Mr. Murray, finding that his whistleblowing activity was a "contributing factor" to the Company's decision to fire him-applying the current, applicable standard under the Sarbanes-Oxley Act ("SOX"). However, the verdict was overturned by the Second Circuit Court of Appeals, which held that the jury should have been instructed to determine whether Mr. Murray had proven by a preponderance of the evidence that UBS fired him because of his whistleblowing activity, rather than assessing the claim under the "contributing factor" standard, which has been uniformly applied in SOX whistleblower lawsuits up until now. In other words, the Second Circuit heightened the burden for plaintiffs to prove causation under SOX.
Indeed, the Second Circuit's decision represents an about-face, diverging from the more lenient "contributing factor" standard that has been applied by lower courts in the Second Circuit for years, and which the Fourth, Fifth, Ninth, and Tenth Circuit Courts of Appeal continue to apply to SOX retaliation claims.
Now, in comes the Supreme Court, who has agreed to hear...
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