When whistleblowers exposed the widespread corporate fraud pervading companies like Enron and WorldCom in the early 2000s, Congress responded by enacting the Sarbanes-Oxley Act (SOX) to protect the public from future fraud. Among its provisions, SOX protected whistleblowers from retaliation using an employee-friendly burden of proof—the “contributing factor” standard. Despite Congress’s longstanding interpretation of “contributing factor” to mean “any factor, which alone or in connection with other factors, tended to affect in any way the outcome of the decision,” the Second Circuit adopted a contrary interpretation in its 2022 decision Murray v. UBS Securities, LLC.

In Murray, the Second Circuit held that a whistleblower must prove an employer’s retaliatory intent before the burden shifts to the employer to show that it would have taken the same action regardless of the employee’s whistleblowing. This decision created a circuit split with at least two other circuits, and it has revived the inconsistent protection across jurisdictions that SOX intended to remedy. Although the Court initially denied Murray’s petition for certiorari, it relisted the case in April 2023. On May 1, 2023, the Court granted certiorari and will resolve the circuit split. The Court should hold that SOX’s plain language and statutory structure do not require a whistleblower to prove the employer’s retaliatory intent before the whistleblower may recover under SOX’s antiretaliation provision.