Having been instructed to resolve the meaning of a “contributing factor” to an adverse action, the Second Circuit split from eight sister circuits, the petitioner argues.
A former UBS analyst is once again asking the Supreme Court to opine in his Sarbanes-Oxley Act retaliation lawsuit. The new petition for certiorari asks the Court to resolve a circuit split on the meaning of “contributing factor” in SOX’s burden-shifting framework. According to the petitioner, after the Court declined to address the definition of “contributing factor,” the Second Circuit rejected the “tends to affect in any way” language adopted in other circuits (Brief for Petitioner, Murray v. UBS Securities, LLC, No. 25-264 (U.S. Sept. 4, 2025)).
Burden-shifting. A whistleblower must make a prima facie case that whistleblowing was a “contributing factor” to an adverse employment action. The burden then shifts to the defendant to show by clear and convincing evidence that it would have taken the adverse action anyway.
The question presented is whether the “contributing factor” of 49 U.S.C. § 42121(b) is one that “alone or in connection with other factors, tends to affect in any way the outcome of the decision.” The petitioner, Trevor Murray, asserts that this is how eight circuits have interpreted Section 42121(b) and that two others have interpreted virtually identical whistleblower statutes the same way.
But the Second Circuit distinguished those cases and ruled that a contributing factor must “...
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