SCOTUS Poised to Resolve Circuit Split on SOX Federal Whistleblower Standard and Other Statutes

Eric Akira Tate and Cooper Spinelli authored an article for the Daily Journal providing an overview of the Sarbanes-Oxley Act’s (SOX) burden-shifting framework and a brief summary of the pending Murray v. UBS case in the U.S. Supreme Court, which should resolve a circuit split on whether SOX whistleblower plaintiffs must prove retaliatory intent and could have significant implications for employers facing whistleblower claims.

“SOX prohibits covered employers from ‘discriminat[ing] against an employee in the terms and conditions of employment because of any lawful act done by the employee’ under 18 U.S.C. § 1514A(a),” the authors wrote. “Any civil action to enforce this prohibition is governed by the burden-shifting framework in 49 U.S.C. § 42121(b). Under this framework, a plaintiff must first show the protected activity ‘was a contributing factor in the unfavorable personnel action alleged in the complaint’ (‘Contributing Factor Standard’). If the plaintiff meets this burden, the employer can still avoid liability if it demonstrates, by clear and convincing evidence, that it would have taken the same unfavorable personnel action absent the protected activity.”

Read the full article (subscription required).