SPEAKER_01: 0:18

Welcome back to the deep dive. Today we are opening up a file that is honestly looking at the sheer volume of documents here, it feels less like a typical employment dispute and more like a a moral maze.

SPEAKER_00: 0:31

Yeah, that's a good way to put it.

SPEAKER_01: 0:33

We're talking about the high stakes, high-pressure machinery of Wall Street, and specifically the invisible, often permeable lines drawn on the trading floor.

SPEAKER_00: 0:42

Aaron Ross Powell The lines that are supposed to keep the game honest, but often end up being the battle lines where careers, you know, go to die.

SPEAKER_01: 0:50

Exactly. Usually when we talk about Wall Street scandals, we're talking about clear-cut villains, you know, the guys stealing from the pension fund, the Ponzi scheme, the blatant fraudster.

SPEAKER_00: 0:59

Sure, the Bernie madoffs of the world.

SPEAKER_01: 1:01

Right. But today, we're looking at something much grayer, much messier, and frankly, likely much more common in the corporate world. We're talking about what I'm calling the integrity dilemma. Trevor Burrus, Jr.

SPEAKER_00: 1:11

Right. It's that precise moment where doing your job correctly, technically, legally, and ethically correctly, might actually cost you your livelihood.

SPEAKER_01: 1:20

Trevor Burrus, Jr.: It's that tension, right? The tension between doing right and fitting in. And the protagonist of our story today, a guy named Trevor Murray, he walked right into that buzzsaw.

SPEAKER_00: 1:28

Trevor Burrus, his story starts simply enough. He's a strategist at a massive bank, UBS. He's just trying to write reports about commercial real estate. But that simple act spirals into a 14-year legal saga.

SPEAKER_01: 1:41

It's unbelievable.

SPEAKER_00: 1:42

Trevor Burrus, Jr. We're talking district courts, appeals courts, a unanimous Supreme Court decision. And then just when you think the credits are rolling and the hero has won a plot twist in 2025 that sends everyone back to square one.

SPEAKER_01: 1:55

It really is a roller coaster. But beyond the drama, it is a master class in employment law. I mean, this case effectively redefines what it means to be a whistleblower in the United States. It forces us to answer the question if you raise your hand and say this is wrong and then you get fired, what exactly do you have to prove to get justice? Is it enough that you complained and got fired? Or do you have to prove the boss was, you know, twirling his mustache and actively trying to punish you? And that's our mission for this deep dive. We aren't just gossiping about a firing or looking at dirty laundry. We are unpacking the Murray v. UBS case files. We've got the original complaints, the appellate rulings, and the opinion from Justice Sotomayor right here.

SPEAKER_00: 2:35

It's a mount in the paper, but the core questions are fascinating.

SPEAKER_01: 2:39

We need to understand the difference between animus and causation. We need to understand why three little words in a jury instruction tended to affect can destroy a decade of litigation.

SPEAKER_00: 2:50

Aaron Powell It sounds technical, I know. But I promise you, by the end of this, you're going to be mentally checking the wording in your own employment contracts. It touches on something universal for anyone with a job.

SPEAKER_01: 3:00

Aaron Powell So what's the so what? Why does this matter?

SPEAKER_00: 3:03

Well, it matters for anyone who has ever raised a hand to say, hey, this isn't right. It's about the legal machinery that protects or you know, sometimes fails to protect them.

SPEAKER_01: 3:12

Okay, let's set the scene. It's 2011. The financial world is still sort of nursing a hangover from the 2008 crash.

SPEAKER_00: 3:18

Oh, big time. There's a lot of anxiety, a lot of regulation is still new, people are on edge.

SPEAKER_01: 3:23

And into this environment walks Trevor Murray. He gets hired by UBS Securities. Now, for you listening who isn't deep in the weeds of investment banking, let's explain the architecture here. Because this isn't just about office politics, it's about structural separation.

SPEAKER_00: 3:38

Right. So a major investment bank like UBS is effectively a two-headed beast. On one side, you have the trading desk, the moneymakers, the revenue generators, they buy assets, they sell assets, they bundle loans. Their goal is profit. Pure and simple. They want to move product, they're trying to make a market.

SPEAKER_01: 3:56

The rainmakers, the guys who keep the lights on and the bonuses flowing.

SPEAKER_00: 4:00

Exactly. Then on the other side of the building, and often legally, it has to be physically or electronically separated, you have the research department.

SPEAKER_01: 4:07

The thinkers.

SPEAKER_00: 4:08

The analysts. Their job is to look at the market, look at the securities, and write objective reports for clients. They are supposed to be the truth tellers.

SPEAKER_01: 4:16

And there is this concept of the Chinese wall separating them. It's a term you hear all the time in finance.

SPEAKER_00: 4:22

You do, though I think compliance departments prefer information barrier these days. It's a bit more PC. Trevor Burrus, Jr.

SPEAKER_01: 4:28

Right, information barrier. But the concept is the same. The idea is that the traders cannot tell the researchers what to write.

SPEAKER_00: 4:35

It's fundamental. Because if the trader holds a bunch of garbage bonds that they're desperate to sell and he tells the researcher, hey, if you write a report saying these are gold, that's fraud. That's pumping the market.

SPEAKER_01: 4:46

Aaron Powell The investor on the other end reads that report, thinks it's objective, buys the bonds. Trevor Burrus, Jr.

SPEAKER_00: 4:51

And the trader makes a fortune offloading his junk onto an unsuspecting public. Yeah. It's the oldest trick in the book.

SPEAKER_01: 4:56

So the researcher is supposed to be independent. They work for the bank, but their loyalty is effectively to the investor reading the report. They serve the market, not the trading desk.

SPEAKER_00: 5:06

Aaron Powell That's the theory. And that is also the law. It's called regulation AC analyst certification. This was a huge deal after the dot-com bubble burst.

SPEAKER_01: 5:16

Oh, I remember this. This was when analysts were publicly recommending tech stocks while privately emailing each other saying the companies were junk, right?

SPEAKER_00: 5:25

The piece of junk emails, yes. That was a massive scandal with Merrill Lynch and others. It blew the lid off this whole conflict.

SPEAKER_01: 5:33

People lost their life savings based on those recommendations.

SPEAKER_00: 5:35

They did. So Regulation AC was born from that fire. Every time an analyst publishes a report, they had to sign a certification saying, quote, this reflects my personal honest view, and I was not paid or influenced to write this. It's a legal oath.

SPEAKER_01: 5:50

It's like a doctor signing a prescription. You are personally vouching for this.

SPEAKER_00: 5:54

You're putting your professional reputation and potentially your freedom on the line.

SPEAKER_01: 5:58

So Trevor Murray walks into this environment. He's hired as a senior commercial mortgage-backed securities strategist. That is a mouthful.

SPEAKER_00: 6:06

It is. Let's break that down. CMBS.

SPEAKER_01: 6:09

Commercial mortgage-backed securities.

SPEAKER_00: 6:11

Think of them like a layer cake or maybe lasagna. You take a bunch of loans on commercial properties, office buildings, hotels, shopping malls.

SPEAKER_01: 6:18

So not people's houses. This is business real estate.

SPEAKER_00: 6:21

Exactly. You layer all those loans together into a giant bond. Then you slice that bond up and sell the slices to investors, like pension funds or insurance companies.

SPEAKER_01: 6:30

And Murray's job was to look at the whole market for these loans and these bonds and tell clients, what?

SPEAKER_00: 6:37

His job was to tell them, hey, office buildings in Chicago are risky right now. Or hotels in Miami are a great bet. He's supposed to give them the unvarnished truth about the health of that market.

SPEAKER_01: 6:49

Okay, so he's the weather forecaster for commercial real estate.

SPEAKER_00: 6:52

Great analogy. And just like a weatherman, you want him to tell you if it's going to rain, even if the person paying his salary owns a golf course and has a big tournament scheduled.

SPEAKER_01: 7:01

But in Murray's case, the golf course owner, the trading desk, wasn't interested in rain forecasts.

SPEAKER_00: 7:06

Not at all. Not if it was going to ruin their tournament. Murray steps into the role and he almost immediately clashes with two key figures: Ken Cohen, the head of CMBS trading, and Dave McNamara, the head trader.

SPEAKER_01: 7:18

These are the guys whose bonuses depend on moving these bonds.

SPEAKER_00: 7:22

These are the rainmakers. And according to the court records, the pressure wasn't subtle. It wasn't just a raised eyebrow or a sigh in a meeting.

SPEAKER_01: 7:29

So what did it look like? What were they telling him?

SPEAKER_00: 7:32

No, it was explicit. Murray testified that Ken Cohen introduced him to the concept of consistency of message.

SPEAKER_01: 7:40

Which, honestly, in a normal corporate job, sounds fine. Let's all be on the same page. Synergy, right. Why is that bad here?

SPEAKER_00: 7:48

In marketing, synergy is great. In a regulated financial institution, consistency of message between trading and research is a massive red flag.

SPEAKER_01: 7:57

Because it implies one is dictating to the other?

SPEAKER_00: 8:00

It implies the research should match the trading strategy. Cohen told Murray, quote, it is important that we maintain consistency of message between originations, trading, and research.

SPEAKER_01: 8:10

Translation, don't write anything that makes my trades look bad. If I'm selling hotels, you better be bullish on hotels.

SPEAKER_00: 8:15

Exactly. And it went further. Murray testified that he was told to clear his research articles with the desk before publishing.

SPEAKER_01: 8:22

Whoa, that seems like a direct violation of the whole idea.

SPEAKER_00: 8:26

It completely violates the spirit, if not the letter, of Regulation AC. If you have to show your homework to the teacher before you hand it in, and the teacher changes the answers, it's not your homework anymore.

SPEAKER_01: 8:37

You're just a mouthpiece at that point.

SPEAKER_00: 8:38

Yes. And there were specific flashpoints that really illustrate this. Take the too bearish incident. Murray wrote a report saying the market looked grim, that there were clouds on the horizon. Aaron Powell Which is his job. It's his entire job. And Cohen pulled him aside, literally stopped him in the hallway, and told him he was being too bearish. He was bumming out the market. He was making it harder to sell bonds.

SPEAKER_01: 9:01

Don't bring me problems, bring me solutions. But his job is literally to identify problems in the market.

SPEAKER_00: 9:07

Aaron Powell And then there was a hotel situation. This one feels like the smoking gun for the conflict of interest.

SPEAKER_01: 9:12

Okay, what happened there?

SPEAKER_00: 9:13

So UBS had a large position in a loan on a hotel in Miami. They were trying to securitize it, turn it into bonds, and sell it off as a big deal for the desk.

SPEAKER_01: 9:23

Aaron Powell They needed this trade to go well.

SPEAKER_00: 9:25

Very much so. And Cohen specifically warned Murray not to write anything negative about the hotel sector. Period.

SPEAKER_01: 9:31

Aaron Ross Powell Because if the analyst says hotels are tanking, nobody buys the hotel bonds, and UBS is stuck holding the bag.

SPEAKER_00: 9:38

You got it. The whole house of cards could fall down based on one independent report.

SPEAKER_01: 9:43

So Murray testified about this. What was the word he used? He said he felt like he was being asked to be A shill.

SPEAKER_00: 9:48

That's the word he used in court. A shill. He felt his entire purpose at the bank from the trading desk's perspective was to be a marketing arm for their positions.

SPEAKER_01: 9:58

So here's the dilemma. Murray has a choice. He can play ball, keep the traders happy, probably get a nice bonus, but violate the SEC regulations and his own essence.

SPEAKER_00: 10:08

And potentially go to jail if it blows up.

SPEAKER_01: 10:10

Right. Or he can stand his ground, protect the investors, do his job correctly, but put a target on his back.

SPEAKER_00: 10:16

And he chose the latter. But he didn't just quietly refuse. He tried to use the proper channels. He blew the whistle.

SPEAKER_01: 10:23

Okay, so who did he go to? He can't go to the traders, obviously.

SPEAKER_00: 10:26

He went to his boss, Michael Schumacher. Now Schumacher is in a tough spot too, presumably. He manages Murray, but he has to work with a trading desk. He's caught in the middle.

SPEAKER_01: 10:36

So how did he handle it?

SPEAKER_00: 10:37

Poorly, to say the least. According to the testimony, Schumacher was initially sympathetic. He acknowledged it was a tough position to be in. You could almost hear him saying, Yeah, I get it, those guys are tough. But then the corporate survival instinct kicked in. He told Murray, do not alienate your internal client.

SPEAKER_01: 10:56

Internal client? That phrase drives me crazy. In this context, the client is the investor, the pension fund buying the bond, not the guy down the hall.

SPEAKER_00: 11:06

Precisely. But inside the bank, the power dynamic is different. The trading desk makes the money. So they are treated as the client.

SPEAKER_01: 11:13

And Schumacher went even further, didn't he?

SPEAKER_00: 11:15

Oh yeah. He even told Murray to just write what the business line wanted.

SPEAKER_01: 11:19

Wow. So it wasn't even a suggestion, it was a command. Just do what you're told and stop making waves. It's incredible that a manager would say that to a regulated analyst.

SPEAKER_00: 11:29

It is. But Murray kept pushing back. He complained again in December 2011 and January 2012. And then we get to the timeline of the firing, which is critical for the legal case.

SPEAKER_01: 11:41

Right. Timing is everything in these cases.

SPEAKER_00: 11:43

In January 2012, Murray gets his annual performance review. And this is always the first thing you look for. Was he actually bad at his job?

SPEAKER_01: 11:51

Was he a problem employee they were already looking to get rid of?

SPEAKER_00: 11:54

According to the review, no. It was spotless, exceeds expectations in some areas, no disciplinary issues. On paper, he's a model employee.

SPEAKER_01: 12:03

But the emails tell a different story.

SPEAKER_00: 12:05

Yes. Shortly after that glowing review, and shortly after another complaint from Murray about the pressure, Schumacher sends an email to his superiors.

SPEAKER_01: 12:14

And what does he say?

SPEAKER_00: 12:15

He recommends that Murray be removed from the headcount.

SPEAKER_01: 12:17

Removed from the headcount. Corporate euphemisms are undefeated. It sounds like he's deleting a row in Excel, not firing a human being.

SPEAKER_00: 12:24

And here is the really damning part. The part that Murray's lawyers really latched onto. Schumacher suggests a compromise in that email check.

SPEAKER_01: 12:31

A compromise.

SPEAKER_00: 12:33

He says maybe if Ken Cohen wants to keep him, we can move him to the trading desk as a desk analyst.

SPEAKER_01: 12:38

Wait, explain the difference. What is a desk analyst versus what he was?

SPEAKER_00: 12:42

Okay, this is key. A desk analyst is not subject to regulation AC. They work directly for the traders. They are allowed to be biased. They are allowed to be shills. Their job is effectively internal strategy and marketing support for the desk.

SPEAKER_01: 12:57

So Schumacher was basically saying he refuses to be a shill while holding the title of independent researcher.

SPEAKER_00: 13:04

So let's strip him of the title and make him an official shill.

SPEAKER_01: 13:07

That is incredibly revealing. It suggests they knew exactly what the problem was. The problem wasn't his work, it was his independence.

SPEAKER_00: 13:14

Exactly. It implies that the problem wasn't his quality of work, it was his regulatory status. They liked his brain, they just hated his independence.

SPEAKER_01: 13:21

So what did the trading desk say to the offer?

SPEAKER_00: 13:24

They declined. They didn't want him even as a desk analyst. So in February 2012, Trevor Murray is fired.

SPEAKER_01: 13:31

Now, UBS obviously didn't write a domination letter saying fired for excessive integrity. What was their official reason?

SPEAKER_00: 13:38

Economics. And this is a very important part of the story. You have to remember the context of 2011-2012. The financial world was still shaky. The Eurozone crisis was happening.

SPEAKER_01: 13:50

And UBS had its own specific problems.

SPEAKER_00: 13:53

Huge problems. They had just lost billions, I think it was over$2 billion, in a rogue trading scandal involving Quick U Adobe, and the market in general was bad. They were doing layoffs across the board.

SPEAKER_01: 14:06

So their defense was look, we're bleeding cash. Murray is expensive. His role is nice to have, not need to have. He doesn't generate direct revenue. So when the axe fell, he was just on the list.

SPEAKER_00: 14:16

Exactly. And that is a plausible defense. It's what we call the innocent employer defense. We didn't fire him because he complained. We fired him because we're broke.

SPEAKER_01: 14:25

It creates a classic, he said she said, was it retaliation or was it just business?

SPEAKER_00: 14:28

Precisely. And that's the question that had to be untangled in court.

SPEAKER_01: 14:31

So Murray sues. He files a complaint, alleging he was fired in retaliation for whistleblowing, and he eventually lands in federal court.

SPEAKER_00: 14:39

Aaron Powell He actually sued under two different laws at first. The Surbanes Oxley Act, or SOX, and the Dodd-Frank Act.

SPEAKER_01: 14:46

SOX is the big post-Enron law. It was designed to stop exactly this kind of corporate fraud and protect people who speak up.

SPEAKER_00: 14:53

Right. It has a specific provision, Section 806, protecting whistleblowers. But the Dodd-Frank claim got thrown out pretty early on.

SPEAKER_01: 15:02

Why was that?

SPEAKER_00: 15:03

It's a technicality, but an interesting one. The judge, Judge Catherine Polkfail, who's a really sharp judge in the Southern District of New York, she ruled that the whistleblower protections Murray invoked under Dodd-Frank were tied to the Consumer Financial Protection Act.

SPEAKER_01: 15:19

Okay.

SPEAKER_00: 15:19

And she ruled that CMBS, these complex commercial bonds, are not consumer products. Trevor Burrus, Jr.

SPEAKER_01: 15:25

Because you and I aren't buying commercial mortgage bonds for our retirement accounts directly. It's not a mortgage on your house. Trevor Burrus, Jr.

SPEAKER_00: 15:31

Right. We aren't credit cards or home mortgages. They're sold to sophisticated institutional investors. So Judge Fayel has said, sorry, this part of Dodd Frank doesn't apply to this kind of product.

SPEAKER_01: 15:41

Aaron Powell That seems like a massive loophole, doesn't it? If you defraud grandma with a credit card, you're in trouble. If you defraud a pension fund representing 10,000 grandmas with a complex bond, carry on.

SPEAKER_00: 15:53

It's a statutory interpretation issue. And it shows how specific these laws can be. But the practical effect was that it narrowed the case down to just Sarbien's Oxley. And that's where the real battle lines were drawn.

SPEAKER_01: 16:05

So let's fast forward to the first trial. It's 2017, five years after the firing, Murray versus UBS in front of a jury.

SPEAKER_00: 16:12

And this is where it gets into the legal weeds, but it's the absolute heart of the story. In a SOX trial, the rules are unique. It uses what's called a burden shifting framework.

SPEAKER_01: 16:22

Burden shifting. Okay, explain that.

SPEAKER_00: 16:24

Imagine a seesaw. To start, it's balanced. First, the plaintiff, that's Murray, has to put a little bit of weight on his side. He has to prove that his whistleblowing was a contributing factor in his firing.

SPEAKER_01: 16:36

Contributing factor, not the only factor or the main factor, just a factor.

SPEAKER_00: 16:40

Right. Congress made that standard intentionally low to encourage whistleblowers. It just has to be one of the ingredients in the soup.

SPEAKER_01: 16:46

Okay, so if he does that, he pushes his side of the seesaw down.

SPEAKER_00: 16:50

The seesaw tips. The burden of proof literally shifts to the defendant, to UBS. Now UBS has to prove by clear and convincing evidence that they would have fired him anyway, even if he had never opened his mouth.

SPEAKER_01: 17:03

And clear and convincing is a high bar. It's higher than the usual, more likely than not, right?

SPEAKER_00: 17:09

Much higher. In most civil court cases, you just need to prove your side is 51% right. A preponderance of the evidence. Clear and convincing is somewhere between that and the criminal standard of beyond a reasonable doubt.

SPEAKER_01: 17:22

Aaron Powell, so it's designed to make it hard for employers to come up with a fake reason after the fact.

SPEAKER_00: 17:27

Exactly. They can't just say, oh well, his performance was kind of bad. They have to really prove it. With documents, with testimony, it's a tough hurdle.

SPEAKER_01: 17:35

So the whole trial came down to the jury instructions. How does the judge explain these complicated rules to the jury?

SPEAKER_00: 17:41

Aaron Powell And Judge Fayla gave an instruction that would haunt this case for the next decade. She had a defined contributing factor for the jury. What did she tell them? She told the jury that a contributing factor is something that, quote, tended to affect in any way the decision to terminate.

SPEAKER_01: 17:58

Tended to affect. I want to stick a pin in that phrase. It sounds incredibly broad. Like almost anything could tend to affect something.

SPEAKER_00: 18:04

Aaron Powell, it is. And UBS's lawyers went ballistic. Their whole argument on appeal hinged on this. They argued, no, judge, that is too loose. Under the law, Murray should have to prove retaliatory intent.

SPEAKER_01: 18:17

What do they mean by that?

SPEAKER_00: 18:18

They argued he should have to prove that his boss had animus, that they wanted to punish him, that they were motivated by a desire for revenge.

SPEAKER_01: 18:25

Aaron Powell They wanted the jury to look inside the boss's head for an evil motive.

SPEAKER_00: 18:29

Yes. UBS argued that the word discriminate in the statute implies a state of mind. You can't discriminate by accident. You discriminate because you have a motive, a bias. But Judge Fellas said no. She stuck with her instruction. She said animus is not required by the law.

SPEAKER_01: 18:45

So the jury goes back, they deliberate with that tended to affect instruction, and they come out with a verdict.

SPEAKER_00: 18:50

Aaron Powell Victory for Murray, a big one. They awarded him about$653,000 in back pay. And this is significant.$250,000 for non-economic damages. That's for the emotional distress, the reputational harm.

SPEAKER_01: 19:04

Plus attorney's fees, which, after five years of litigation, must have been huge.

SPEAKER_00: 19:09

Astronomical, whose complete validation for Murray, he had won.

SPEAKER_01: 19:13

But this is a dip dive into the legal system, so obviously the story doesn't end with the happy verdict. UBS appeals.

SPEAKER_00: 19:19

Of course. They have deep pockets and a legal principle to prove. They take it to the Second Circuit Court of Appeals. Now we are in 2022, ten years after the firing.

SPEAKER_01: 19:29

And the Second Circuit, they didn't see things Murray's way.

SPEAKER_00: 19:32

No. The Second Circuit is a very influential court, especially for Wall Street and business cases. They looked at the statute and they latched onto that one word, discriminate.

SPEAKER_01: 19:40

The word UBS had been focused on all along.

SPEAKER_00: 19:42

Exactly. And their logic was, well, it was very specific. They said, look, the plain meaning of discriminate implies a conscious intent to treat someone differently based on a characteristic. It implies a why.

SPEAKER_01: 19:53

So they're saying you can't discriminate without a discriminatory motive.

SPEAKER_00: 19:57

That was their interpretation. Therefore, to win an SOX claim, a whistleblower must prove that the employer had retaliatory intent.

SPEAKER_01: 20:06

So they sided completely with UBS. They effectively said because the jury wasn't told to look for an evil motive, the verdict is trash.

SPEAKER_00: 20:14

They vacated the verdict and they ordered a new trial. After all that, Murray was back at square one.

SPEAKER_01: 20:20

I want to pause here and think about what that means for a whistleblower. Proving intent is incredibly difficult.

SPEAKER_00: 20:26

It's nearly impossible.

SPEAKER_01: 20:27

Unless you find an email that says, I hate Trevor and I'm firing him because he reported me, how do you prove what's inside someone's head?

SPEAKER_00: 20:35

You can't. And most employers are smart enough not to put their illegal motives in writing. They hide behind restructuring or performance issues, or it's not a good fit. If the Second Circuit's ruling stood, it would have gutted the Sarbane's Oxley protections.

SPEAKER_01: 20:49

How so?

SPEAKER_00: 20:50

It would mean that as long as the boss keeps his mouth shut about why he's firing you, as long as he maintains a plausible cover story, he gets away with it.

SPEAKER_01: 20:57

It effectively requires a confession to win your case.

SPEAKER_00: 21:01

Pretty much. And Murray's team knew that. They knew this wasn't just about his case. It was about the future of the law. So they decided to hail Mary. They appealed to the Supreme Court.

SPEAKER_01: 21:11

Which is a long shot. The Supreme Court only takes a tiny fraction of cases.

SPEAKER_00: 21:14

A tiny fraction. But this was a clean legal question. There was a split in the circuits. Other courts had ruled differently. It was the perfect kind of case for them to take to clarify the law.

SPEAKER_01: 21:25

And they take the case. This is Murray v. UBS Securities. The question on the docket. Does a whistleblower need to prove retaliatory intent to win a SOX claim?

SPEAKER_00: 21:36

We are 2024 now, and the decision comes down.

SPEAKER_01: 21:39

And it was a unanimous decision. Nine and dear, written by Justice Sotomayor.

SPEAKER_00: 21:43

That's rare these days. When you get the entire court, from the most liberal to the most conservative, to agree, it really shows how clear they felt the text of the law was.

SPEAKER_01: 21:51

So what did they decide?

SPEAKER_00: 21:52

They slammed the door hard on the Second Circuit's logic. Sotomayor went back to the text of the law. She said, yes, the word is discriminate. But discriminate doesn't mean hate. It simply means differential treatment.

SPEAKER_01: 22:06

Can you unpack that? What's the difference? That sounds subtle.

SPEAKER_00: 22:09

It's crucial. Here's how she explained it. Imagine an employer has two employees. Employee A stays silent about fraud. Employee B. Reports fraud. If the employer fires employee B because of the report, they have treated him differently than employee A. That is discrimination.

SPEAKER_01: 22:27

So the act itself is the discrimination.

SPEAKER_00: 22:29

The act of treating them worse because of the protected activity. It doesn't matter if the employer felt animosity. It doesn't matter if the employer was just doing business or trying to solve a problem. The act of firing him for the report is the discrimination. The motive is irrelevant.

SPEAKER_01: 22:43

So the evil mind requirement is gone.

SPEAKER_00: 22:45

Completely. Sonomayor wrote that requiring a plaintiff to prove animus would ignore the whole purpose of the statute. Congress wanted to encourage reporting. Burdening whistleblowers with the impossible task of proving their bosses' inner thoughts would do the exact opposite.

SPEAKER_01: 23:02

You would just silence people.

SPEAKER_00: 23:03

It would. But what about UBS's argument? They had this innocent employer argument. They said, if you don't require intent, then innocent companies who are just doing layoffs will get sued every time a whistleblower gets cut.

SPEAKER_01: 23:14

How did the court deal with that?

SPEAKER_00: 23:16

Sotomayor addressed that perfectly. She said, you are forgetting the second step of the Seesaw, the burden shifting framework.

SPEAKER_01: 23:24

The part where the employer gets to prove their case.

SPEAKER_00: 23:27

Exactly. The clear and convincing part. She said the employer is already protected. If UBS really fired Murray because of the financial crisis, they have the opportunity to prove that. If they can show clear and convincing evidence that he would have been fired anyway, they win. They don't need an extra intent hurdle to protect them. The system is already balanced.

SPEAKER_01: 23:46

It's such a clean logical argument.

SPEAKER_00: 23:49

It is. Justice Alito wrote a concurrence too.

SPEAKER_01: 23:51

He usually has a slightly different take on things.

SPEAKER_00: 23:54

He did, but he agreed with the outcome. He just wanted to clarify that intent isn't totally gone from the law. You still need the intent to fire the person. You can't fire someone by accident. And the firing has to be because of the whistleblowing. But he agreed. You do not need animus. You don't need to prove the boss was acting out of malice or hatred.

SPEAKER_01: 24:15

So a huge win for Murray. A landmark victory for whistleblowers everywhere. The Supreme Court validates his legal theory. The intent requirement is dead. He must have been popping the champagne.

SPEAKER_00: 24:27

You would think. I mean, you win nine a zero with the Supreme Court. The case is remanded, sent back to the Second Circuit. The instructions were basically we fixed the law, now go apply it to the case and finalize this. The check should be in the mail.

SPEAKER_01: 24:39

That's not what that happened. And this is the part of the story that makes you want to pull your hair out.

SPEAKER_00: 24:43

It's just wild. We're looking at the Second Circuit's decision from February 2025, just recently. They took the case back from the Supreme Court, they acknowledged the Supreme Court's ruling, and they vacated the verdict again.

SPEAKER_01: 24:57

Wait, how? How is that even possible? If the Supreme Court just said Murray was right, how can they vacate the verdict again?

SPEAKER_00: 25:04

Murray was right on the intent issue. But the Second Circuit found a different problem with the original trial, a problem that wasn't addressed by the Supreme Court.

SPEAKER_01: 25:12

They went hunting for a new error.

SPEAKER_00: 25:14

In a way, yes. Once they were told they were wrong about retaliatory intent, they went back to the trial record with a fine-toothed comb, and they went back to those three little words Judge Faye used in the jury instruction in 2017. Trevor Burrus, Jr.

SPEAKER_01: 25:27

Tended to effect.

SPEAKER_00: 25:28

Exactly. The second circuit said, okay, fine, you don't need to prove animus, but you do need to prove causation. You need to prove the whistleblowing actually contributed to the firing.

SPEAKER_01: 25:37

Okay. That seems reasonable. And they had a problem with tended to.

SPEAKER_00: 25:40

A huge problem. They argued that tended to implies propensity, not actuality.

SPEAKER_01: 25:46

Explain that distinction. I need an analogy here.

SPEAKER_00: 25:48

Okay. Let's use one that, while not in the ruling, helps explain the logic. Imagine you are driving drunk. Driving drunk tends to cause accidents. It has the propensity to be dangerous.

SPEAKER_01: 26:01

Okay, I'm with you. It increases the risk.

SPEAKER_00: 26:03

Right. Now imagine while you're driving drunk, a meteor falls from the sky and crushes your car.

SPEAKER_01: 26:09

Bad luck, but clearly not my fault.

SPEAKER_00: 26:11

The drunk driving tended to cause danger. But in this specific instance, the drunk driving didn't cause the accident. The meteor did. The propensity didn't become an actuality.

SPEAKER_01: 26:22

I see where you're going. The second circuit is saying that the instruction allowed the jury to say, well, Murray blew the whistle and that sort of thing usually gets people fired, so let's give him the money.

SPEAKER_00: 26:31

Without proving it actually got him fired this time, they said tended to affect is too abstract. It lowers the bar too much. The statute requires the protected activity to be a contributing factor. That means it must have actually had a share in bringing about the result. It can't just be the kind of thing that causes results.

SPEAKER_01: 26:49

It's such a fine point of grammar, but it has massive consequences.

SPEAKER_00: 26:53

It's the difference between winning and losing millions of dollars.

SPEAKER_01: 26:57

Was there any proof the jury was actually confused by this? Or is this just appellate judges parsing grammar for sport? Because sometimes it feels like they just want to send things back.

SPEAKER_00: 27:06

There was proof. And this is a killer detail. During the 2017 trial, the jury sent a note to the judge. They were deliberating and they sent out a note.

SPEAKER_01: 27:17

What did it say?

SPEAKER_00: 27:17

They literally asked, what does tended to affect mean?

SPEAKER_01: 27:21

Oh, wow. So they were struggling with it in real time, the exact phrase the appeals court flagged.

SPEAKER_00: 27:27

The exact phrase. And the judge gave a clarification, but the appeals court looked at the clarification and said it didn't fix the original error. It still left the door open for that propensity interpretation.

SPEAKER_01: 27:38

So even though Murray won on the big intent question at the Supreme Court, he lost on the causation wording at the appeals court.

SPEAKER_00: 27:44

Correct. The court then did what's called a harmless error analysis. They asked, okay, the instruction was wrong, but was the evidence against UBS so overwhelming that the jury would have convicted them anyway, even with the right instruction?

SPEAKER_01: 27:57

And given that UBS had the we lost billions and we're doing layoffs defense.

SPEAKER_00: 28:02

The court said no. They called it a close case. Because there was legitimate evidence that Murray might have been laid off for economic reasons, the wrong instruction might have kipped the scale. Therefore, the error was not harmless.

SPEAKER_01: 28:15

So the result is a new trial. A new trial. Back to district court.

SPEAKER_00: 28:19

Back to where we started in 2014. Murray has to present his case all over again to a brand new jury.

SPEAKER_01: 28:26

That is exhausting just to hear. Imagine living it for over a decade.

SPEAKER_00: 28:29

It's a technical knockout. Murray won the war on the legal standard for every whistleblower in the country, but he lost the battle on the specific phrasing of a jury instruction from a decade ago.

SPEAKER_01: 28:41

Let's try to summarize this roller coaster for everyone because the timeline is just insane.

SPEAKER_00: 28:45

Okay, let's try.

SPEAKER_01: 28:46

2011, Murray gets hired and starts blowing the whistle on being pressured to write skewed reports.

SPEAKER_00: 28:51

He gets fired.

SPEAKER_01: 28:52

He sues UBS.

SPEAKER_00: 28:53

He wins a trial, a jury sides with him.

SPEAKER_01: 28:56

He loses on appeal because the Second Circuit says he didn't prove retaliatory intent.

SPEAKER_00: 29:00

He wins at the Supreme Court. The court says 9-0 that intent isn't needed.

SPEAKER_01: 29:06

He loses on Raman because the original jury instruction said tended to instead of actually did.

SPEAKER_00: 29:11

And now, presumably, in 2026 or 2027, trial number two, 15 years after he was fired.

SPEAKER_01: 29:19

So what are the takeaways here? Let's break it down for the stakeholders. First, for the whistleblowers. If you are sitting at your desk right now seeing something shady, what does this case tell you?

SPEAKER_00: 29:30

It's a mixed bag, but mostly a win on the law itself. Supreme Court decision is a massive shield. You do not need to prove your boss hated you. You do not need to find a smoking gun email where they confess their evil motives.

SPEAKER_01: 29:42

That's a huge burden lifted.

SPEAKER_00: 29:44

It is. You just need to prove that your report was a factor in your firing. That is the law of the land now. It makes bringing case much more viable.

SPEAKER_01: 29:51

There's a but.

SPEAKER_00: 29:52

But the lesson from the remand is precision matters. The devil is in the details. Your lawyer better make sure the jury instructions are bulletproof. Discriminate means differential treatment. Contributing factor means actual contribution. Courts are not going to let you slide on vague language like tended to.

SPEAKER_01: 30:10

And what about for the employers, for the HR departments and general counsels listening to this?

SPEAKER_00: 30:15

Documentation. Documentation. Documentation.

SPEAKER_01: 30:19

If you don't write it down, it didn't happen. Or rather, you can't prove it happened.

SPEAKER_00: 30:23

If you're going to fire someone who has raised concerns, you are walking into a minefield, you need clear and convincing evidence that you were going to do it anyway. UBS had a strong argument. We lost billions. But even that wasn't enough to get the case dismissed early on. They still had to go through years of litigation.

SPEAKER_01: 30:40

The innocent employer defense only works if you have the receipts.

SPEAKER_00: 30:43

Exactly. If you are doing layoffs and a whistleblower is on the list, you better be able to show the math. We fired the bottom 10% of revenue generators and he was in that bucket. Or we eliminated all non-revenue generating roles in this division. If you can't show the objective criteria, the jury will assume it was retaliation.

SPEAKER_01: 31:03

You know, looking at this whole saga, there is a deeper, almost philosophical point here. We talk about the law as this abstract set of rules to protect integrity. We want people like Murray to speak up when they see shills and rigged reports. We need them to. But look at the process.

SPEAKER_00: 31:18

The process is the punishment. It's a phrase you hear a lot in law, and this case is the perfect example.

SPEAKER_01: 31:23

Right. Even if Murray wins the second trial, he has spent 15 years, the prime of his career, fighting this. He's been in deposition rooms, courtrooms, waiting for judges to rule. His name is now synonymous with this fight.

SPEAKER_00: 31:35

His professional life has been defined by this lawsuit, not by his work as a strategist.

SPEAKER_01: 31:39

It raises a provocative question. Is the law actually protecting whistleblowers in practice? Or is the sheer weight, the expense, and the duration of the legal machinery the ultimate deterrent?

SPEAKER_00: 31:52

It's a great question. Because the law can be perfect on paper. But if the system grinds you down for a decade and a half to get justice, have you really won?

SPEAKER_01: 32:01

If I'm a young analyst at a bank today and I see something wrong and I know Trevor Murray's story, do I speak up or do I look at the 14-year timeline and say, you know what, it's not worth it. I'll just keep my head down.

SPEAKER_00: 32:14

That is the chilling effect that persists. Even after a landmark Supreme Court victory, the process itself sends a message.

SPEAKER_01: 32:20

Something that you want. We'll be watching to see if this actually goes to a second trial, or if UBS and Murray finally settle now that the major legal questions are answered. But for now, the legal definition of a whistleblower is clearer than ever, even if Trevor Murray's future isn't.

SPEAKER_00: 32:34

It's a landmark case, no matter how it ends for him personally. It will be taught in law schools for decades.

SPEAKER_01: 32:40

Thanks for joining us on the deep dive. We'll see you next time.