Wyden Urges Justices to Revive UBS Retaliation Case Again

This article features Government Accountability Project Legal Director Tom Devine and was originally published here. 

Sen. Ron Wyden and several whistleblower organizations have urged the U.S. Supreme Court to revive for a second time a fired UBS worker's whistleblower retaliation lawsuit, pointing to a "deep and direct conflict" the Second Circuit has created with its latest decision in the case.

Wyden, D-Ore., along with the Government Accountability Project, the National Whistleblower Center, the Project on Government Oversight and Whistleblowers of America, filed a 38-page amicus brief Wednesday, backing Trevor Murray in his suit against UBS Securities LLC. The amicus parties said the high court should reverse a February Second Circuit ruling that backed UBS and struck down a nearly $1 million verdict a jury had awarded Murray due to faulty jury instructions.

The amicus parties said the Second Circuit ignored the "relevant canons of construction" and overlooked the language, history and purpose of the Sarbanes-Oxley Act, which governs corporate financial reporting and recordkeeping. The Second Circuit also broke from five other circuit courts on the matter, according to the brief.

"Amici submit that this deep and direct conflict, by itself, provides compelling grounds for this court to grant Murray's pending petition for certiorari, particularly in light of the legal uncertainty this split reflects and the forum shopping this split may encourage," the parties said.

Thomas Devine of the Government Accountability Project, counsel for the amicus parties, told Law360 Friday the high court should enforce its earlier decision in this matter, adding that free speech rights would be set back nearly 50 years if the Second Circuit's decision is allowed to stand.

"This lets the employer completely off the hook," Devine said of the Second Circuit's decision.

He added that the relevant legal statute requires only proof of discrimination, not proof of retaliation — the latter of which also requires proof of animus on the part of an employer.

Robert Lloyd Herbst of Herbst Law PLLC, counsel for Murray, told Law360 that Wyden and the whistleblower groups filed a strong brief, adding he's grateful to them for signing on to it.

Counsel for UBS didn't respond to a request for comment Friday.

Murray had won more than $900,000 in 2017 after a Manhattan federal jury found he had been unlawfully fired after he informed higher-ups about being pressured to alter research he had conducted. In 2022, the Second Circuit overturned the jury's award.

In 2024, the Supreme Court revived Murray's case, finding that whistleblowers don't need to show that employers displayed retaliatory intent to have a viable case under the Sarbanes-Oxley Act, or SOX.

According to that unanimous high court ruling, Congress decided that when it comes to a plaintiff's burden of proof on intent under the law, they only need to show that their protected activity contributed to an unfavorable personnel action, such as a firing. The burden then shifts to the employer to prove it would have taken that same adverse action regardless of the employee's protected activity, in a framework the justices said "is meant to be plaintiff-friendly."

On remand, the Second Circuit subsequently struck down Murray's trial court win again, concluding in a split decision that the jury had been given instructions that contained an overbroad definition of a "contributing factor" as something that "tended to affect" UBS' decision to terminate Murray.

In his certiorari petition, brought in September 2025, Murray asked the justices to address whether a "contributing factor" in Section 42121(b) of the Aviation Investment and Reform Act — which governs whistleblower protection claims in multiple industries — is one that "alone or in connection with other factors, tends to affect in any way the outcome" of an employment decision as numerous other appellate courts have held.

Murray noted that the high court in its previous consideration of his case didn't opine on the meaning of "contributing factor" in Section 42121(b), and that the Second Circuit, in resolving that issue in connection with Murray's SOX suit, created a split with other circuits and the U.S. Department of Labor, which adjudicates many whistleblower retaliation claims.

In Wednesday's amicus brief, Wyden and the whistleblower groups noted the majority in the latest Second Circuit decision ruled that the "contributing factor" test requires whistleblowers to prove that protected disclosures "actually caused" firings.

"Contrary to the Second Circuit, five circuits (the Third, Fourth, Fifth, Seventh, and Tenth Circuits) have held SOX's 'contributing factor' test merely requires that protected disclosures 'tended to affect in any way' adverse employment decisions, e.g., terminations," according to the amicus brief.

The parties said Congress defined a contributing factor using the "tends to" language, which the parties asserted is meant to be employee-friendly. No court in any jurisdiction has ever found that language to be "ambiguous or perplexing, or otherwise problematic," they added.

The Second Circuit's latest decision "would eviscerate the statutory structure for all whistleblower laws by functionally canceling the employer's burden of proof," the amicus parties said.

"To maintain the burdens of proof in virtually all modern whistleblower laws, amici request that the court grant certiorari and reverse the decision below," they wrote.

Wyden, the Government Accountability Project, the National Whistleblower Center, the Project on Government Oversight and Whistleblower of America are represented by Ned Miltenberg of the Law Offices of Ned Miltenberg and Thomas Devine of the Government Accountability Project.

Murray is represented by Robert Lloyd Herbst of Herbst Law PLLC.

UBS is represented by Eugene Scalia of Gibson Dunn & Crutcher LLP.

The case is Murray v. UBS Securities LLC et al., case number 25-264, in the U.S. Supreme Court.