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2 United States Court of Appeals 3 for the Second Circuit 4 5 August Term, 2021 6 7 (Argued: April 1, 2022 Decided: August 5, 2022) 8 9 Docket Nos. 20-4202(Lead), 21-56(Con) 10 _____________________________________ 11 12 TREVOR MURRAY, 13 Plaintiff-Appellee-Cross-Appellant, 14 15 v. 16 17 UBS SECURITIES, LLC, UBS AG, 18 Defendants-Appellants-Cross-Appellees. 19 _____________________________________ 20 Before: 21 22 PARK, MENASHI, and PÉREZ, Circuit Judges. 23 24 Plaintiff Trevor Murray claims that UBS Securities, LLC and UBS AG 25 (together “UBS”) fired him in retaliation for reporting alleged fraud on 26 shareholders to his supervisor. Murray sued UBS under the whistleblower 27 protection provision of the Sarbanes-Oxley Act (“SOX”), 18 U.S.C. § 1514A, and he 28 ultimately prevailed at trial. The district court (Failla, J.), however, did not instruct 29 the jury that a SOX antiretaliation claim requires a showing of the employer’s 30 retaliatory intent. Section 1514A prohibits publicly traded companies from taking 31 adverse employment actions to “discriminate against an employee . . . because of” 32 any lawful whistleblowing act. 18 U.S.C. § 1514A(a). We hold that this provision 33 requires a whistleblower-employee like Murray to prove by a preponderance of 34 the evidence that the employer took the adverse employment action against the 35 whistleblower-employee with retaliatory intent—i.e., an intent to “discriminate 1 against an employee . . . because of” lawful whistleblowing activity. The district 2 court’s legal error was not harmless. We thus vacate the jury’s verdict and remand 3 to the district court for a new trial. 4 5 THOMAS G. HUNGAR (Christopher Smith, 6 Anna Casey, Gibson, Dunn & Crutcher LLP, 7 Washington, D.C.; Gabrielle Levin, Gibson, 8 Dunn & Crutcher LLP, New York, NY, on the 9 brief), Gibson, Dunn & Crutcher LLP, 10 Washington, D.C., for Defendants-Appellants- 11 Cross-Appellees. 12 13 ROBERT L. HERBST (Robert B. Stulberg, 14 Patrick J. Walsh, Stulberg & Walsh, LLP, 15 New York, NY; Scott A. Korenbaum, New 16 York, NY; Benjamin J. Ashmore, Sr., Herbst 17 Law PLLC, New York, NY, on the brief), 18 Herbst Law PLLC, New York, NY, for 19 Plaintiff-Appellee-Cross-Appellant. 20 21 PARK, Circuit Judge: 22 Plaintiff Trevor Murray claims that UBS Securities, LLC and UBS AG 23 (together, “UBS”) fired him in retaliation for reporting alleged fraud on 24 shareholders to his supervisor. Murray sued UBS under the whistleblower 25 protection provision of the Sarbanes-Oxley Act (“SOX”), 18 U.S.C. § 1514A, and he 26 ultimately prevailed at trial. The district court (Failla, J.), however, did not instruct 27 the jury that a SOX antiretaliation claim requires a showing of the employer’s 28 retaliatory intent. Section 1514A prohibits publicly traded companies from taking