Labor & Employment Law Daily Wrap Up, SCOTUS NEWS—Petition asks for clarity on SOX ‘contributing factor’, (Sep 10, 2025)

By Anne Sherry, J.D.

Having been instructed to resolve the meaning of a “contributing factor” to an adverse action, the Second Circuit split from eight sister circuits, the petitioner argues.

A former UBS analyst is once again asking the Supreme Court to opine in his Sarbanes-Oxley Act retaliation lawsuit. The new petition for certiorari asks the Court to resolve a circuit split on the meaning of “contributing factor” in SOX’s burden-shifting framework. According to the petitioner, after the Court declined to address the definition of “contributing factor,” the Second Circuit rejected the “tends to affect in any way” language adopted in other circuits (Brief for Petitioner, Murray v. UBS Securities, LLC, No. 25-264 (U.S. Sept. 4, 2025)).

Burden-shifting. A whistleblower must make a prima facie case that whistleblowing was a “contributing factor” to an adverse employment action. The burden then shifts to the defendant to show by clear and convincing evidence that it would have taken the adverse action anyway.

The question presented is whether the “contributing factor” of 49 U.S.C. § 42121(b) is one that “alone or in connection with other factors, tends to affect in any way the outcome of the decision.” The petitioner, Trevor Murray, asserts that this is how eight circuits have interpreted Section 42121(b) and that two others have interpreted virtually identical whistleblower statutes the same way.

But the Second Circuit distinguished those cases and ruled that a contributing factor must “actually cause or help cause the termination decision.”

Cases are apposite. Murray argues that in distinguishing cases that involved summary judgment rather than jury instructions, the Second Circuit drew a distinction without a difference. The definition of “contributing factor” is the same at summary judgment as it is at trial, and the Second Circuit spoke of whether the definition was “correct in any sense,” not just at trial.

The appeals court distinguished some of the cases because the underlying claim didn’t arise under SOX, but Murray argues that this makes no difference: “The meaning of the term “contributing factor” in Section 42121(b) does not change based on the statute incorporating it.” When courts interpret “contributing factor” in a claim under a statute that incorporates Section 42121(b) by reference, they are interpreting Section 42121(b) itself.

The split means that whistleblowers face a higher evidentiary burden in the Second Circuit than in others, Murray submits. In other circuits, a plaintiff may establish the “contributing factor” element by proving that the defendant knew about the whistleblowing and took action soon after. The Second Circuit explained that a plaintiff could not succeed using this evidence under its definition of “contributing factor.”

Second Circuit was wrong. The petition urges that as the burden-shifting framework of Section 42121(b) was transplanted from the Whistleblower Protection Act of 1989, it “brings the old soil with it” (George v. McDonough, 142 S. Ct. 1953, 1959 (2022)). The Second Circuit was required to consider the foundational case interpreting the WPA’s “contributing factor” standard, a 1993 decision of the Federal Circuit—the court that had exclusive jurisdiction over WPA claims. This case defined “contributing factor” precisely how the district court had in Murray’s case.

The text of the WPA itself explained that an employee could prove the “contributing factor” by showing the defendant’s knowledge of the whistleblowing activity along with temporal proximity to the adverse action. And the plain language of Section 42121(b) supports a broad reading of how a plaintiff can meet his burden.

Per the Second Circuit panel majority, “contributing factor” could not be read so broadly because a SOX retaliatory action must be “because of” protected activity. Murray argues that this reasoning ignores the fact that in the second step of the burden-shifting framework, the employer can prove that it would have taken the same action anyway. This second step will exonerate an employer who did not fire the plaintiff “because of” the whistleblowing.

Court should grant cert. Murray argues that the question presented is important because of its stakes, because the Second Circuit broke ranks with the Department of Labor, and because over one-fifth of SOX whistleblower cases land in the Second Circuit.

The petition also notes that previously in the case, UBS urged the Court to define “contributing factor,” conceding the importance of the question. The Court ultimately concluded that it could not reach the question because the Second Circuit had not issued a holding and it was outside the scope of the question presented in the first petition. The Second Circuit has now definitively addressed the issue, putting it squarely before the Court.

The case also presents a compelling vehicle for resolving the question because every other issue related to liability has been decided in Murray’s favor, and the Supreme Court has resolved the only other issue on appeal (holding the burden-shifting framework does not require a whistleblower to prove retaliatory intent).

The case is No. 25-264.

Companies: UBS Securities, LLC; UBS AG

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