WASHINGTON, D.C.— Stephen Hall, Better Markets’ Legal Director and Securities Specialist, issued the following statement in connection with yesterday’s filing of an amicus curiae brief in the U.S. Supreme Court in Murray v. UBS Securities LLC. The brief was led by The Anti-Fraud Coalition and joined by Better Markets and The National Employment Lawyers Association:
“Whistleblowers play a vital role in exposing fraud and abuse, often involving complex financial crimes that are especially difficult to uncover and prove. But when whistleblowers come forward, they take huge professional, personal, and financial risks, often incurring the wrath of their employers. That’s why strong protections for whistleblowers are so important and why Congress prohibited public companies from retaliating against their employees who blow the whistle on illegal activity. Unfortunately, the Second Circuit issued a decision last August making it substantially more difficult for whistleblowers to bring a case for unlawful retaliation. The Supreme Court will address the case next term, and in our amicus brief, we urge the Court to repair the damage and fully restore the safeguards against whistleblower retaliation.
“UBS Securities hired petitioner Murray as its research strategist to analyze and report on the market for commercial mortgage-backed securities, a type of complex investment similar to the residential mortgage-backed securities that fueled the financial crash of 2008. According to the allegations in the case, Murray was subjected to intense pressure at UBS to skew his research reports in support of UBS’s business strategies—even though the law requires that such reports be independently prepared. Murray refused and was subsequently fired. He brought a case for unlawful retaliation under the Sarbanes-Oxley Act of 2002 and won at trial. However, the Second Circuit vacated the jury’s verdict, holding that to prove retaliation, Murray was actually required to show that UBS acted with retaliatory intent or discriminatory animus prompted by the whistleblowing activity.
“As explained in our brief, the Second Circuit got it wrong on both legal and policy grounds. Its holding conflicts with the plain language of the statute, which expressly provides that one alleging retaliation need only show that her protected activity was a ‘contributing factor’ in an adverse employment action, at which point the burden shifts to the employer to demonstrate, if possible, that it would have taken the adverse action even absent the protected behavior. The Second Circuit’s decision also flies in the face of Congress’s clear objective: to better protect whistleblowers from retaliation so they are willing to expose illegal activity. Unless reversed, the decision will insulate more financial misconduct from detection and prosecution. Investors, financial markets, and potentially our entire economic system are bound to suffer the negative consequences.”
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Better Markets is a non-profit, non-partisan, and independent organization founded to promote the public interest in the financial markets, support the financial reform of Wall Street and make our financial system work for all Americans again. Better Markets works with allies—including many in finance—to promote pro-market, pro-business and pro-growth policies that help build a stronger, safer financial system that protects and promotes Americans’ jobs, savings, retirements and more. To learn more, visit www.bettermarkets.org.
