UBS Whistle-Blower Retaliation Win Overturned on Appeal

A federal appeals court in New York vacated a jury verdict in favor of a former UBS AG senior strategist who claimed he was illegally fired in 2012 for refusing to sugarcoat his reports for clients.

Trevor Murray’s 2017 trial win is invalid because the judge failed to inform jurors that a whistle-blower must prove their employer intentionally retaliated against them, the 2nd US Circuit Court of Appeals in Manhattan ruled Friday. The appeals court ordered a new trial.

Murray, who worked for UBS’s commercial mortgage-backed securities business for one year, accused the Swiss lender of violating whistle-blower protections in the 2002 Sarbanes-Oxley Act. His suit described a “concerted, extended effort” by managers and colleagues to get him to write bullish assessments.

But the Sarbanes-Oxley law requires “a whistle-blower-employee like Murray to prove by a preponderance of the evidence that the employer took the adverse employment action against the whistle-blower-employee with retaliatory intent,” the appeals court held.

Murray’s lawyer, Robert Herbst, didn’t immediately respond to a message seeking comment.

UBS’s lawyer, Thomas Hungar, declined to comment. Calls to UBS’s media relations line weren’t answered.

UBS argued that Murray was never a whistle-blower, and that his termination from UBS Securities LLC was part of a broader reduction in staffing caused by the bank’s poor finances. UBS repeatedly stressed the impact of a $2 billion loss by a rogue trader at its London office five months before the firing.

The appeals court nodded to that argument in Friday’s ruling.

“UBS offered evidence at trial of non-retaliatory reasons for its decision to terminate Murray,” the panel said. “For example, UBS witnesses testified that the company was experiencing significant financial difficulties, resulting in company-wide layoffs when Murray reported the alleged misconduct and was ultimately terminated.”

UBS had been ordered to pay Murray more than $900,000. The whistle-blower, who at the time of the trial was making ends meet with an hourly job at a grocery store, had asked for $3 million.

The case is Murray v. UBS Securities, 14-cv-00927, US District Court, Southern District of New York (Manhattan).