Murray v. UBS Securities, LLC (22-660)

argument 22-660

Murray v. UBS Securities, LLC

Supreme Court of the United States 1h 28m 8 speakers 8 chapters transcribed 7 days ago official recording ↗

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What is the statutory framework governing whistleblower retaliation under Sarbanes‑Oxley?

John G. Roberts 0:00

We'll hear argument first this morning in case twenty two six sixty, Murray versus UBS securities. Ms. Holland?

Sarah Holland 0:12

Thank you, Mr Chief Justice, and may it please the court. Congress passed the Sarbanes Oxley Act in the wake of the Enron meltdown to encourage whistleblowers to report misconduct that could threaten the finances of millions. The question in this case is how claims that an employer acted with retaliatory intent are to be proven. The plain text of the statute answers that question. District Court actions shall be governed by the burdens of proven Air 21. Air twenty one in turn places exactly one burden of proof on plaintiff to show that his protected conduct was a contributing factor in the unfavorable personnel action. The burden then shifts to the defendant to prove that it would have taken the same unfavorable personnel action in the absence of the protected conduct, in essence that it did not act with retaliatory intent.

Sarah Holland 0:58

The Second Circuit held that the contributing factor element required a showing of retaliatory intent. UBS does not defend that holding, nor could it. UBS instead contends that in addition to showing the contributing factor element, a plaintiff must separately show retaliatory intent. But UBS never grappled with the plain text of the statute, which says that an action shall be governed by the burdens in Air twenty one. And having now disclaimed any requirement that a plaintiff show animus, UBS never explains what its proposed retaliatory intent element would amount to, other than the second step of the burden shifting framework, as showing that the employer would not have taken the adverse action in the absence of the protected conduct.

Sarah Holland 1:43

I welcome this Court's questions.

Clarence Thomas 1:46

Uh if you um did not have the burden shifting framework, uh would there be an intent requirement?

Sarah Holland 1:54

So yes, Your Honor, that is the burden shifting framework is designed to prove the intent element. Absent the burden shifting framework, the default rule would apply and plaintiff would just have to show intent.

Clarence Thomas 2:05

Well, it just seems that uh the substantive statute provides for but far co but for causation and has an intent requirement, but you're saying the burden of proof requirement seems to uh uh framework seems to eviscerate that substantive requirement.

Sarah Holland 2:22

I I wouldn't say eviscerate, I would say it's how you prove that substantive requirement. So for instance, in Title Seven, the same language discriminate because of can either be proven entirely by the plaintiff or, depending on the type of case, Congress has sometimes said there's a burden shifting framework that comes in. You just have to show a motivating factor and then the burden shifts. In other words,

Elena Kagan 2:44

I'm a bit confused by that answer. Um I understand the meaning of discriminate means to treat someone differently. And I don't know how you can prove intent other than to show by action that something has someone has discriminated. They fired someone, they demoted someone, they treated them differently in some way. They discriminated against them. So I don't think there's any question that there was an intent to fire this person, correct?

Sarah Holland 3:16

That's

Elena Kagan 3:16

correct,

Sarah Holland 3:17

Your Honor.

Elena Kagan 3:17

And so the causation issue is not about intent or the issue is not about the intent to fire someone. The issue is What relationship does it have to the

Sarah Holland 3:28

act? That's exactly right, Your Honor.

Elena Kagan 3:31

So I don't know where your answer to Justice Thomas comes that if there wasn't this burden shifting that we would have a different kind of intent. We would still be charging people with that they fire them because of this, correct?

Sarah Holland 3:47

That's exactly right, Your Honor. The question would just be who has to prove that that the firing was because of the protected conduct or trait. The default rule is plaintiff. In this case, Congress has chosen to put a burden shifting framework in the statute that gives the plaintiff an initial burden before the burden shifts to the defendant.

Elena Kagan 4:05

So the question of intent as you said might arise w in motivating factor cases because then the jury has to find out whether this was more important or not than other reasons, correct?