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On February 8, 2024, in its Murray v. UBS Securities, LLC opinion, the U.S. Supreme Court unanimously held that a whistleblower pursuing a claim for retaliation under the Sarbanes-Oxley Act of 2002 (“SOX”) does not need to show that the employer acted with “retaliatory intent.”

On January 10, 2024, the United States Attorney’s Office for the Southern District of New York (“SDNY”) introduced the SDNY Whistleblower Pilot Program (“Pilot Program”), aimed at encouraging individuals to disclose information about specific criminal offenses, particularly urging them to do so early and voluntarily. In return for their cooperation, SDNY will enter into a non-prosecution agreement (“NPA”) if certain conditions are met.

The Supreme Court’s resolution of this circuit split in Murray v. UBS Securities, LLC will have far-reaching impacts on an employer’s burden in whistleblower suits under both SOX and other federal anti-retaliation laws.

On May 5, 2023, the Securities and Exchange Commission (“SEC”) issued an order (the “Order”)¹ providing that it would pay a $279 million award to a whistleblower who assisted with the enforcement of an action by the SEC and two other related actions brought by unnamed agencies.

As someone who has tried more than his share of cases, I have come to the conclusion that retaliation claims are often more difficult to defend than plain discrimination claims.