On August 5, 2022, the United States Court of Appeals for the Second Circuit reached a decision in Murray v. UBS Securities, LLC, 1 overturning a nearly $1 million award to a former UBS strategist who had filed a lawsuit under Sarbanes-Oxley's ("SOX") whistleblower protection provision, 18 U.S.C. ' 1514A. The Court held that the jury should have been instructed that such a claim requires a showing of the employer's retaliatory intent.2 The Second Circuit's decision in Murray creates a circuit split, as the Fifth and Ninth Circuits have both held that "retaliatory intent" is not a required element for a Section 1514A claim. 3
I. Background
Under the SOX anti-retaliation provision, a publicly traded company may not "discriminate against an employee . . . because of" the employee's lawful involvement in providing information or otherwise assisting a government investigation of securities or fraud violations.4 The statute provides a private right of action to any employee who allegedly suffered such retaliation.5
In 2011, Trevor Murray was hired as a strategist at UBS, tasked with researching and reporting on the commercial mortgage-backed securities ("CMBS") business. In this role, Murray had a duty under Securities and Exchange Commission ("SEC") regulations to certify the accuracy and independence of his reports. Murray alleged that members of UBS's trading desk inappropriately pressured him to...
