In an amicus curiae brief filed with the Supreme Court on behalf of the National Whistleblower Center (NWC), the founding partners of Kohn, Kohn & Colapinto (KKC) outline the Congressional intent behind the burden of proof standard in the Sarbanes-Oxley Act of 2002 (SOX). The brief was filed in the case Murray v. UBS Securities, LLC a SOX whistleblower retaliation case filed by an ex-employee against UBS Bank.

The Supreme Court will decide whether or not whistleblowers must prove that companies acted with “retaliatory intent” in order to be protected from retaliation under SOX. In 2022, the Second U.S. Circuit Court of Appeals ruled against the ex-UBS employee, saying he did not prove that UBS intended to retaliate against him by firing him. In contrast, other federal appeals courts have ruled that whistleblowers only need to prove that their whistleblowing was a “contributing factor” to a decision to fire them.

In their brief, the KKC partners give a detailed history of the drafting of SOX to demonstrate the Congressional intent behind a “contributing factor” standard of proof. The partners of KKC were actively involved in the drafting of the whistleblower provisions found in SOX and NWC is referenced in the legislative history of the act.

“In crafting the unique ‘contributing factor’ test for whistleblowers, Congress left an incredibly straight-forward legislative history documenting the value of whistleblowers’ contributions, the risks and retaliation whistleblowers faced, the barriers the previous burden of proof presented for whistleblowers, and Congress’ explicit intention to lower that burden of proof for whistleblowers,” the brief states.

“The United States Court of Appeals for the Second Circuit looked to the provision generally prohibiting retaliation against whistleblowers and took it upon themselves to raise the ‘contributing factor’ burden of proof to require a whistleblower to ‘prove that the employer took the adverse employment action against the whistleblower-employee with retaliatory intent,’” the brief continues. “This interpretation completely negates the purpose of Congress crafting the ‘contributing factor’ standard to lower the burden for whistleblowers and the plain meaning of the mandatory ‘contributing factor’ burden of proof.”

“A ruling in favor of UBS Securities will overturn more than 20 years of precedent in Sarbanes-Oxley Act whistleblower cases and make it exceedingly more difficult for whistleblowers who claim retaliation under many federal whistleblower statutes modeled on SOX,” said David Colapinto, one of the KKC founding partners.

Read the full brief.

Geoff Schweller also contributed to this article.