Petition for Writ of Certiorari — Trevor Murray, Petitioner v. UBS Securities, LLC, et al.

APPENDIX

TABLE OF CONTENTS

Appendix A, Opinion of the U.S. Court of

Appeals for the Second Circuit, filed on

February 10, 2025 ............................................... 1a

Appendix B, Dissent of Circuit Judge Myrna

Pérez, filed on February 10, 2025..................... 19a

Appendix C, Order of the U.S. Court of

Appeals for the Second Circuit, denying

petition for rehearing en banc, filed on May

16, 2025 ............................................................. 33a

Appendix D, 29 U.S.C. § 42121(b)(2)(B),

Protection of employees providing air

safety information ............................................. 34a

1a

APPENDIX A

20-4202(L)

Murray v. UBS Sec., LLC

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

____________________________

August Term 2021

Argued: April 1, 2022

Decided: February 10, 2025

Nos. 20-4202(L), 21-56(XAP)

____________________________

Trevor Murray,

Plaintiff-Appellee-Cross-Appellant,

v.

UBS Securities, LLC, UBS AG,

Defendants-Appellants-Cross-Appellees.

____________________________

Appeal from the United States District Court

for the Southern District of New York

No. 14-cv-927, Failla, Judge.

____________________________

Before: PARK, MENASHI, and PÉREZ, Circuit Judges.

Trevor Murray briefly worked for Appellants

UBS Securities, LLC and UBS AG (“UBS”). But he

was terminated after he complained to a supervisor

that other employees had violated Securities and

Exchange Commission regulations. Murray then

brought a claim for retaliation against a

whistleblower under 18 U.S.C. § 1514A. That statute

2a

required Murray to show that his whistleblowing was

a “contributing factor” in his termination. At trial,

the district court instructed the jury that a

“contributing factor” is one that “tend[s] to affect in

any way” a decision. Murray won.

On appeal, we vacated and remanded because the

district court’s instruction did not require Murray to

show that UBS acted with “retaliatory intent.” But

the Supreme Court reversed, holding that retaliatory

intent or “animus” is not an element of Murray’s

claim.

Now, on remand from the Supreme Court, UBS

maintains that the district court’s instruction was

wrong in two ways. First, the instruction allowed the

jury to find that whistleblowing generally is the type

of thing that “tends” to affect a termination, rather

than something that actually affected Murray’s

termination. Second, the instruction allowed the jury

to find that Murray’s whistleblowing “affected” his

termination “in any way”—even if whistleblowing did

not affect his termination in a way that “contributed”

to it by making it more likely.

We agree with UBS. The district court’s

instruction strayed from the text of § 1514A by

expanding the definition of a contributing factor—

and so the scope of UBS’s liability—beyond what the

statute allows. A contributing factor is one that

causes or helps cause a subsequent event. But it

must actually cause or help cause the termination

decision—it is not enough merely to influence the

termination or generally to be the type of thing that

tends to cause termination.

3a

We thus VACATE the judgment of the district

court and REMAND for further proceedings

consistent with this opinion.

Judge Pérez dissents in a separate opinion.

__________

THOMAS G. HUNGAR, Gibson, Dunn

& Crutcher LLP, Washington, DC (Eugene

Scalia, Andrew G.I. Kilberg, Gabrielle Levin,

Gibson, Dunn & Crutcher LLP on the brief),

for Defendants-Appellants.

ROBERT L. HERBST, Herbst Law PLLC,

New York, NY (Robert B. Stulberg, Patrick J.

Walsh, Stulberg & Walsh LLP; Scott A.

Korenbaum, Scott A. Korenbaum, Esq.;

Benjamin J. Ashmore, Sr., Herbst Law PLLC

on the brief), for Plaintiff-Appellee.

__________

PARK, Circuit Judge:

Trevor Murray briefly worked for Appellants

UBS Securities, LLC and UBS AG (“UBS”). But he

was terminated after he complained to a supervisor

that other employees had violated Securities and

Exchange Commission (“SEC”) regulations. Murray

then brought a claim for retaliation against a

whistleblower under 18 U.S.C. § 1514A. That statute

required Murray to show that his whistleblowing was

a “contributing factor” in his termination. At trial,

the district court told the jury that a “contributing

factor” is one that “tend[s] to affect in any way” a

decision. Murray won.

In this case’s first appeal, we vacated and

remanded because the district court’s instruction did

4a

not require Murray to show that UBS acted with

“retaliatory intent.” But the Supreme Court reversed

our decision, holding that retaliatory intent or

“animus” is not an element of Murray’s claim.

Now, UBS argues that the district court’s

instruction was still wrong twice over. First, it

allowed the jury to find that whistleblowing generally

is the type of thing that “tends” to affect a

termination, rather than something that actually

affected Murray’s termination. Second, it allowed the

jury to find that Murray’s whistleblowing “affected”

his termination “in any way”—even if his

whistleblowing did not “contribute” to his

termination by making it more likely.

We agree with UBS. The district court’s

instruction strayed from the text of § 1514A by

expanding the definition of a contributing factor—

and so the scope of UBS’s liability—beyond what the

statute allows. A contributing factor causes or helps

cause a subsequent event. But it must actually cause

or help cause the termination decision—it is not

enough merely to influence the termination, or

generally to be the type of thing that tends to cause

termination.

We thus vacate the judgment of the district court

and remand for further proceedings consistent with

this opinion.

I. BACKGROUND

The facts and procedural history of this case are

set out in Murray v. UBS Securities, LLC, 43 F.4th

254 (2d Cir. 2022). We assume familiarity with that

opinion, which we summarize here only briefly.

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A. Facts

Murray started working as a strategist in UBS’s

commercial mortgage-backed securities (“CMBS”)

business in 2011. He was “responsible for performing

research and creating reports that were distributed

to UBS’s current and potential clients about CMBS

products, services, and transactions.” Id. at 256

(cleaned up). SEC regulations required him to

produce his reports independently from other UBS

employees who traded in CMBS products. See 17

C.F.R. § 242.501(a). In December 2011 and January

2012, Murray reported to a supervisor that two

CMBS traders were violating those regulations by

asking him to publish reports supporting their

business strategies. Murray, 43 F.4th at 265. He was

terminated about a month after his second report. Id.

at 257.

Murray sued UBS, alleging that he was

terminated in violation of the anti-retaliation

provision of the Sarbanes-Oxley Act of 2002 (“SOX”),

18 U.S.C. § 1514A.

B

Procedural History

Murray’s case went to trial, near the end of which

the district court informed the parties of the legal

instructions it intended to provide the jury. UBS

raised several objections.

One of UBS’s objections concerned the district

court’s characterization of the burdens of proof that a

SOX plaintiff and defendant must satisfy to establish

or dispute liability. SOX requires a plaintiff to show

that his protected activity—here, reporting violations

of SEC regulations—was a “contributing factor” in an

adverse employment action taken against him. See

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49 U.S.C. § 42121(b)(2)(B). If a plaintiff makes that

showing, the burden then shifts to the defendant to

show by clear and convincing evidence that it would

have taken the adverse action anyway. Id.

UBS objected to the district court’s definition of a

“contributing factor” as one that “tended to affect in

any way” Murray’s termination, arguing that the

definition was overbroad. The district court overruled

UBS’s objection and proceeded to instruct the jury.

Murray won and was awarded $903,300. UBS moved

for judgment as a matter of law, the district court

denied that motion, and UBS appealed. See Murray,

43 F.4th at 258.

In UBS’s initial appeal, we vacated and

remanded for a new trial. See id. We held that SOX

plaintiffs must show that a defendant acted with

“retaliatory intent.” Id. at 256. The district court’s

jury instruction did not reflect that requirement, so a

new trial was necessary.

The Supreme Court reversed. See Murray v. UBS

Sec., LLC, 601 U.S. 23 (2024). It held that retaliatory

intent, understood as “as ‘prejudice’ or ‘animus,’” is

not an element of a retaliation claim under SOX. Id.

at 32; see also id. at 40 (Alito, J., concurring) (“[O]ur

rejection of an ‘animus’ requirement does not read

intent out of the statute. Rather, as the Court

confirms, a plaintiff must still show intent to

discriminate.”). The Court declined to examine UBS’s

other arguments about the contributing factor

instruction. Id. at 37 n.2 (majority opinion). Those

arguments are before us now.

The issue remaining in this appeal is whether the

district court correctly stated the law when it

instructed the jury that “for a protected activity to be

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a contributing factor, it must have either alone or in

combination with other factors tended to affect in any

way UBS’s decision to terminate plaintiff’s

employment.” Joint App’x 1389-90.

II. STANDARD OF REVIEW

“[W]here the challenging party objects to the

charge at trial, we review the instruction de novo. An

instruction is erroneous if it misleads the jury as to

the correct legal standard or does not adequately

inform the jury of the law.” Ashley v. City of New

York, 992 F.3d 128, 142 (2d Cir. 2021) (quotation

marks omitted). Even when an instruction is

erroneous, we do not reverse if we are “convinced that

the error did not influence the jury’s verdict.” US

Airways, Inc. v. Sabre Holdings Corp., 938 F.3d 43,

54 (2d Cir. 2019) (quotation marks omitted).

III. DISCUSSION

UBS argues that it preserved its objection to the

district court’s instruction, that the instruction was

erroneous, and that the error was not harmless. We

address each contention in turn, beginning with a

discussion of the statutory scheme and jury

instruction.

A. Legal and Procedural Context

18 U.S.C. § 1514A states that no covered entity

“may discharge, demote, suspend, threaten, harass,

or in any other manner discriminate against an

employee in the terms and conditions of employment

because of any lawful act done by the employee.”

An action to enforce § 1514A is “governed by the

legal burdens of proof set forth in section 42121(b) of

title 49, United States Code,” which establishes a

8a

burden-shifting

framework.

18

U.S.C.

§ 1514A(b)(2)(C). Under that framework, “a

whistleblower . . . bears the initial burden of showing

that his protected activity ‘was a contributing factor

in the unfavorable personnel action alleged in the

complaint.’” Murray, 601 U.S. at 26 (quoting 49

U.S.C. § 42121(b)(2)(B)(iii)). If the plaintiff clears this

hurdle, “[t]he burden then shifts to the employer to

show” by clear and convincing evidence “that it

‘would have taken the same unfavorable personnel

action in the absence of the protected activity.’” Id.

(quoting 49 U.S.C. § 42121(b)(2)(B)(iv)).

Here, the district court held a charge conference

to propose jury instructions explaining SOX’s burdenshifting framework. At the charge conference, the

court proposed telling the jury that a contributing

factor was one that “tended to affect in any way

UBS’s decision to terminate plaintiff.” But UBS

objected at the charge conference and again

afterward in a letter to the court, explaining that the

instruction should instead say that a contributing

factor is one that “caused or helped cause” the

termination. The district court overruled UBS’s

objections and instructed the jury that “[f]or a

protected activity to be a contributing factor, it must

have either alone or in combination with other factors

tended to affect in any way UBS’s decision to

terminate plaintiff’s employment.” Joint App’x 138990.

During deliberation, the jury sent the court a

note stating: “It says ‘tended to affect in any way

UBS’s decision.’ What is UBS here? Is it a) the person

w/ the final decision? Or b) people who contributed to

the decision formally or informally? C) contributed

actively, i.e. ‘fire him’ or inactively, i.e. ‘I’m not

9a

fighting for him.’” The district court suggested

responding that the jurors “ought to consider who

had knowledge of the protected activity and did

anyone with knowledge of the protected activity,

because of the protected activity, affect the decision

to terminate Mr. Murray’s employment.” Joint App’x

1415. UBS’s counsel said she was “concerned that

[the jury’s] question reflects a confusion about what

‘tended to affect in any way’ means,” but that UBS

“would be comfortable with the formulation your

Honor proposed a moment ago.” Joint App’x 1416.

The court’s actual supplemental instruction was

slightly different from the one it proposed. It

“refer[red]” the jury to “pages 21 and 22 of the

[original] charge,” which contained the initial

instruction, and it told the jury to consider whether

“anyone with that knowledge of the protected activity

because of the protected activity affect[ed] in any way

the decision to terminate Mr. Murray’s employment.”

Joint App’x 1418.

B. UBS Preserved Its Objection

UBS preserved its objection to the district court’s

instruction. An objection to jury instructions is valid

“so long as it is clear that the trial judge was

informed of possible errors in the charge and was

given an opportunity to correct them.” Ashley, 992

F.3d at 142 (quotation marks omitted). UBS objected

to the instruction twice, once at the charge conference

and then again afterward in a letter to the court.

That was enough to preserve the objection.

Murray argues that UBS failed to preserve the

objection because it did not object to the

supplemental instruction. Where there is a

supplemental instruction, “[t]he law of this Circuit

10a

requires parties to make a precise objection to the

supplemental instruction” as well as the original

instruction. Rasanen v. Doe, 723 F.3d 325, 333 (2d

Cir. 2013) (quotation marks omitted). But “a failure

to object after a charge is given is excused where . . .

a party makes its position clear . . . and the trial

judge is not persuaded. A further attempt to object

need not be undertaken [when] it would be without

any reasonable possibility that the trial court would

change its mind.” Girden v. Sandals Int’l, 262 F.3d

195, 202 (2d Cir. 2001).

Under the circumstances here, we conclude that

any further objection was unnecessary. In light of

UBS’s two previously overruled objections, further

objection would have been futile. See United States v.

Cabrera, 13 F.4th 140, 149 (2d Cir. 2021) (“Counsel

need not pester the judge to preserve the objection.”).1

C. The Contributing Factor Instruction Was

Erroneous

UBS’s objection was meritorious because the

contributing factor instruction was doubly overbroad.

First, the words “tended to” “increase[d] the level of

abstraction such that a jury might look beyond

whether the whistleblowing activity actually caused

the termination to whether it was the sort of behavior

that would tend to affect a termination decision.”

Murray, 43 F.4th at 259 n.4. Second, the phrase

The “affect in any way” language of the district court’s

supplemental jury instruction did mirror language that UBS

had at one point proposed. Joint App’x 91. But UBS’s later

objections “made clear to the trial court,” Emamian v.

Rockefeller Univ., 971 F.3d 380, 387 (2d Cir. 2020), that UBS

had rejected the position that it was “enough for protected

activity to ‘affect’ a termination,” Joint App’x 3030.

1

11a

“affect in any way” allowed the jury to consider

effects that did not contribute to Murray’s

termination.

1. Statutory Text

“In interpreting any statute, we start with the

plain meaning of the text, and absent any ambiguity,

we end there too.” Wilson v. United States, 6 F.4th

432, 435 (2d Cir. 2021). Here, § 1514A makes it

illegal to “discharge, demote, suspend, threaten,

harass, or in any other manner discriminate against

an employee in the terms and conditions of

employment because of any lawful act done by the

employee.” 18 U.S.C. § 1514A (emphasis added). A

termination is not because of whistleblowing just

because whistleblowing has a propensity to lead to

termination. For a termination to be “based on

protected whistleblowing activity,” whistleblowing

must have actually been at least “partly responsible

for” the adverse employment action. Murray, 601

U.S. at 37 (cleaned up).

This reading is consistent with the statute’s

burden-shifting

framework,

under

which

a

“whistleblower bears the burden to prove that his

protected activity ‘was a contributing factor in the

unfavorable personnel action alleged in the

complaint.’” Id. at 27 (quoting 49 U.S.C.

§ 42121(b)(2)(B)(i)). The ordinary meaning of a

“contributing” factor is one that has “a share in

bringing about a result.” Id. at 37 (cleaned up).

The district court’s instruction conflicted with the

statutory text. Whistleblowing may “tend to affect”

termination generally, without actually being partly

responsible for a particular plaintiff’s termination.

See Merriam Webster’s Collegiate Dictionary 1287

12a

(11th ed. 2020) (defining “tend” as “to exhibit an

inclination or tendency”); id. (defining “tendency” as

“a proneness to a particular kind of . . . action”). And

whistleblowing may also “affect” a termination “in

any way” without playing a part in making it happen.

For example, if a company consults counsel to weigh

the risk of a potential lawsuit before terminating a

whistleblowing employee, then whistleblowing could

be said to have “affected” that termination by

“produc[ing] an . . . alteration in” how it came about,

id. at 21 (defining “affect”), even if the decision to

terminate was not “based on whistleblowing—not

even a little bit.” Murray, 601 U.S. at 37 (cleaned up).

Even if we did “not think it likely” that the jury

took the court’s instruction literally, “we cannot say it

did not occur.” Paolillo v. Dresser Indus., Inc., 865

F.2d 37, 40 (2d Cir. 1989). The overbreadth of the

charge created an impermissible “risk” that “a jury

member could [have] consider[ed] himself bound to

follow” an incorrect interpretation of the law. Pope v.

Illinois, 481 U.S. 497, 501 n.3 (1987); see also Folger

Adam Co. v. PMI Indus., Inc., 938 F.2d 1529, 1534

n.7 (2d Cir. 1991) (explaining that “the proper

inquiry” is what “might have” occurred, not whether

the jury “necessarily” applied the wrong standard).2

The dissent posits that we review jury instructions by

assessing “whether the instructions ‘would have conveyed to a

reasonable juror the relevant law.’” Post at 2 (quoting United

States v. Gabinskaya, 829 F.3d 127, 132 (2d Cir. 2016)). But the

dissent omits the first half of the sentence it quotes, which in

full, says we “determine whether [the charge] adequately

reflected the law and would have conveyed to a reasonable juror

the relevant law.” Gabinskaya, 829 F.3d at 132 (emphasis

added).

2

13a

Our conclusion here reflects our review of jury

instructions

interpreting

other

employment

discrimination statutes. In our past cases, we have

required jury instructions to be precise about the

influence that a protected trait must produce and the

level of abstraction at which the jury should assess

whether that influence occurred. See Paolillo, 865

F.2d at 40 (“[T]he court’s use of the word ‘real’ was

confusing in that it failed to explain that age need not

be the principal reason for appellee’s decision, but

only a [factor that made a difference].”); Thornley v.

Penton Pub., Inc., 104 F.3d 26, 29-30 (2d Cir. 1997)

(charging jury to assess employee’s qualifications

based on “the legitimate expectations of an employer”

was error because qualification is properly assessed

“in accordance with the particular employer’s

criteria” (emphasis added)).

Here too, the contributing factor instruction was

imprecise about the influence that whistleblowing

needed to produce (“affect” versus “contribute to”)

and the level of abstraction at which to assess

whether that influence occurred (“tended to” versus

“actually did”). So the charge did “not adequately

inform the jury of the law.” Ashley, 992 F.3d at 142

(quotation marks omitted).

2. Murray’s Argument

Murray responds by pointing to out-of-circuit

cases that describe a “contributing factor” as

The contributing factor instruction was erroneous because

its breadth did not “adequately reflect the law.” Id. That was

error enough. We need not consider whether, as understood by a

“reasonable juror,” the instruction was also “ambiguous and

therefore subject to an erroneous interpretation.” Boyde v.

California, 494 U.S. 370, 380 (1990).

14a

something that “tends to affect in any way” a

termination decision.3 But none of these cases

considered whether “tended to affect in any way” was

proper language for a jury instruction. And we have

“cautioned that trial judges should not import

uncritically language . . . developed by appellate

courts for use by judges.” Gordon v. New York City

Bd. of Educ., 232 F.3d 111, 118 (2d Cir. 2000)

(cleaned up); see also Renz v. Grey Advert., Inc., 135

F.3d 217, 223 (2d Cir. 1997) (“[P]rior decisions of this

Circuit using [a] phrase” did not make that phrase a

proper jury instruction because “the question [in

those cases] was whether summary judgment . . . was

properly granted. We were not considering the proper

wording of a jury charge.”).

Here, even if the district court’s instruction were

defensible as a matter of “legal jargon,” the proper

standard was not “readily understood by laymen.”

United States v. Christmann, 298 F.2d 651, 653 (2d

Cir. 1962). In common parlance, a tendency to affect

is a theoretical “proneness” to “produce an . . .

alteration.” See Merriam Webster’s Collegiate

Dictionary 21, 1287 (11th ed. 2020). SOX, however,

See, e.g., Araujo v. N.J. Transit Rail Ops., Inc., 708 F.3d

152, 158-59 (3d Cir. 2013); Feldman v. L. Enf’t Assocs. Corp.,

752 F.3d 339, 348-49 (4th Cir. 2014); Allen v. Admin. Rev. Bd.,

514 F.3d 468, 476 n.3 (5th Cir. 2008); Norfolk S. Ry. Co. v. U.S.

Dep’t of Lab., No. 21-3369, 2022 WL 17369438, at *9 (6th Cir.

Dec. 2, 2022); Addis v. Dep’t of Lab., 575 F.3d 688, 691 (7th Cir.

2009); Kuduk v. BNSF Ry. Co., 768 F.3d 786, 791 (8th Cir.

2014); Frost v. BNSF Ry. Co., 914 F.3d 1189, 1195 (9th Cir.

2019); Miller v. Inst. for Def. Analyses, 795 F. App’x 590, 597

(10th Cir. 2019); Majali v. U.S. Dep’t of Lab., 294 F. App’x 562,

566 (11th Cir. 2008); Marano v. Dep’t of Just., 2 F.3d 1137 (Fed.

Cir. 1993).

3

15a

requires an actual effect that helps bring about a

result.4

3. The Supplemental Instruction

After instructing the jury that a contributing

factor need only have “tended to affect” Murray’s

termination “in any way,” the court later “refer[red]”

the jury to that initial instruction and told it to

consider whether whistleblowing “affect[ed] in any

way the decision to terminate Mr. Murray’s

employment.” This supplemental instruction did not

cure the initial instruction’s error. When “the original

and supplemental charges [are] considered together,”

the collective impression was still erroneous. Time,

Inc. v. Petersen Pub. Co. L.L.C., 173 F.3d 113, 119

(2d Cir. 1999).5

We are not persuaded that it is correct in any sense to

describe a “contributing factor” under SOX as a factor that

“tends to affect” termination “in any way.” Only three of the

cases Murray cites interpreted SOX. See Feldman, 752 F.3d

339; Allen, 514 F.3d 468; Lockheed Martin Corp., 717 F.3d 1121.

And those three cases all followed Marano v. Dep’t of Just., 2

F.3d 1137 (Fed. Cir. 1993), which interpreted the Whistleblower

Protection Act (“WPA”)—a statute with a broader contributing

factor requirement. See 5 U.S.C. § 1221(e)(1) (allowing WPA

plaintiffs to “demonstrate that [whistleblowing] was a

contributing factor” by merely showing that “the official taking

the personnel action knew of the [whistleblowing]” and “the

personnel action occurred within a [reasonable] period of time”

thereafter). For the reasons discussed above, see supra at 11-14,

even if a contributing factor under other employment

discrimination statutes is a factor that “tends to affect

employment in any way,” the same is not true under SOX.

4

The dissent argues that the district court’s jury charge

spanned fifty-seven hundred words, and no reasonable juror

would be “so myopic as to be knocked off course by six words.”

Post at 6. But the initial and supplemental instructions were

5

16a

Although the district court’s supplemental

instruction did not repeat the “tended to” language

from its initial instruction, the court also did not

“clearly . . . correct[] its mistake.” Anderson v.

Branen, 17 F.3d 552, 559 (2d Cir. 1994). Rather, the

court “embedd[ed its initial error] in the

supplemental instruction,” Robinson v. Cattaraugus

Cnty., 147 F.3d 153, 162 (2d Cir. 1998), by

“refer[ring]” the jury to the part of “the [original]

charge” with the “tended to” language. Joint App’x

1418.

Moreover, even if the court had not referred the

jury back to its initial instruction, the supplemental

charge failed to repudiate the “tended to” language.

So the initial instruction was not cured by the court’s

use of slightly different wording in a single

subsequent response to the jury’s question. See

Hudson v. New York City, 271 F.3d 62, 70 (2d Cir.

2001) (“[A] court’s earlier incorrect statements are

[not] necessarily ‘cured’ so long as the charge

contains the correct standard elsewhere.”); Schroble

v. Lehigh Valley R. Co., 62 F.2d 993, 996 (2d Cir.

1933) (“[T]he instruction about the burden of proof

was confused by the prior statement.”).

D. The Instructional Error Prejudiced UBS

Finally, the district court’s error was not

harmless because it misstated SOX’s burden-shifting

framework. “[W]here jury instructions create an

erroneous impression regarding the standard of

the only times the district court defined what a “contributing

factor” meant. Even “a single ruling can vitiate an entire charge

if it is on a vital issue and is misleading.” Franks v. U.S. Lines

Co., 324 F.2d 126, 127 (2d Cir. 1963).

17a

liability, it is not harmless error because it goes

directly to plaintiff’s claim, and a new trial is

warranted.” Hathaway, 99 F.3d at 554–55 (citing

Hendricks v. Coughlin, 942 F.2d 109, 113–14 (2d Cir.

1991)); see also Sullivan v. Louisiana, 508 U.S. 275,

281 (1993) (explaining that an erroneous jury charge

cannot be harmless “where the instructional error

consists of a misdescription of the burden of proof”).

That is especially true here. “[T]he district court

itself remarked that this was ‘one of the closest cases

it ha[d] ever observed.’” Murray, 43 F.4th at 262

(cleaned up). In such a close case, we cannot be

“convinced,” US Airways, Inc., 938 F.3d at 54, that

the erroneous contributing factor instruction did not

tip the scales.

Murray says the erroneous instruction is

irrelevant because UBS failed to escape liability at

step two of SOX’s burden-shifting framework. But

this overlooks the different causation standards and

burdens of proof at SOX steps one and two. Here, at

step two, the jury did not find clear and convincing

evidence that UBS would have terminated Murray

regardless of his whistleblowing. But that does not

mean that at step one, the jury found by a

preponderance of the evidence that whistleblowing

was a contributing factor in Murray’s termination.

Ultimately, we have no way of knowing what the

jury found at step one. And without knowing what

the jury actually did, we decline to “engage in pure

speculation” based on the dissent’s “view of what a

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reasonable jury would have done.” Sullivan, 508 U.S.

at 281.6

IV. CONCLUSION

The district court’s instruction allowed the jury to

hold UBS liable without finding that Murray’s

whistleblowing contributed to his termination. It

cannot “be said for certain that [this error] did not

cause the jury to apply the wrong legal standard.”

Folger Adam Co., 938 F.2d at 1534 (citing Paolillo,

865 F.2d at 40). We thus vacate the judgment of the

district court and remand for further proceedings

consistent with this opinion.

Far from taking a “dim view of the jury,” post at 6,

respecting the role of the jury requires us to be convinced that

the jury’s verdict was not based on the district court’s

instructional error. See, e.g., Chiarella v. United States, 445

U.S. 222, 236 (1980).

6

19a

APPENDIX B

20-4202(L)

Murray v. UBS Sec., LLC

[Filed: February 10, 2025]

MYRNA PÉREZ, Circuit Judge, dissenting:

The majority opinion takes a pessimistic view of

the jury’s grasp of the trial proceedings (and of the

English language). Because I think the jury

instructions clearly and accurately conveyed

Murray’s burden, I would affirm the judgment.

This is not our first look at these instructions. In

round one, we decided—largely based on our Court’s

then-recent interpretation of a similar statute—that

Sarbanes-Oxley’s whistleblower-protection provision

requires a jury to find “retaliatory intent” in order to

find liability. Murray v. UBS Sec., LLC, 43 F.4th 254,

259 (2d Cir. 2022), rev’d, 601 U.S. 23 (2024).

Interpreting our holding (not unreasonably) as

requiring “animus,” the Supreme Court unanimously

reversed us. Murray v. UBS Sec., LLC, 601 U.S. 23,

32–33, 39 (2024).

In round two, UBS now tries to salvage its earlier

victory, pressing an argument that we passed on

before: that the contributing-factor instruction was

fatally ambiguous.1 This instruction required the jury

to determine whether Murray’s whistleblowing “was

a contributing factor in his termination,” meaning

that it “tended to affect in any way UBS’s decision to

terminate [his] employment.” J. App’x at 1393; see

UBS uses the word “vague,” Suppl. Br. at 17, but its

argument—and the majority opinion—claim ambiguity. See

Antonin Scalia & Bryan A. Garner, Reading Law 31–32 (2012)

(explaining the difference).

1

20a

also Murray, 601 U.S. at 37 n.2 (noting that our

earlier opinion did not decide this question).

According to UBS, the jury might have found it liable

based on the mere occurrence of whistleblowing—

something that “tend[s] to affect” firing decisions

generally but didn’t necessarily do so here. Or the

jury might have thought UBS liable because

Murray’s whistleblowing caused him to be fired in a

different way—on a Monday rather than a Friday,

say—even if it didn’t make his firing any more likely.

Our task, though, is to decide whether the

instructions “would have conveyed to a reasonable

juror the relevant law.” United States v. Gabinskaya,

829 F.3d 127, 132 (2d Cir. 2016).2 And I have trouble

envisioning a reasonable juror who would

misconstrue this instruction so badly. Even if a

reasonable juror could make such an error, it’s clear

that the actual jury here did not, and I see no good

reason to disturb its verdict.

I

Background

In December 2011, while working as a research

analyst at UBS, Murray approached his supervisor to

report that two of his internal clients—traders on

UBS’s commercial mortgage-backed securities desk—

were improperly pressuring him to bias or censor his

research reports to help the desk’s business. Murray’s

supervisor, Michael Schumacher, told him to keep

the trading desk happy. In January 2012, Murray

While this standard comes from criminal cases, we have

applied it in civil cases as well. See, e.g., Miller v. City of New

York, No. 23-93, 2024 WL 3271998, at *3 (2d Cir. July 2, 2024)

(summary order).

2

21a

reported that the situation was getting worse.

Schumacher again told him to toe the company line,

notwithstanding Murray’s worry that the conduct

was unlawful. Just two days earlier, despite having

given Murray a strong performance review,

Schumacher had suggested to his own boss that

Murray be terminated or transferred to the trading

desk, where SEC regulations wouldn’t require him to

be objective. The trading desk wouldn’t take him, and

Murray was fired less than four weeks later.

Murray sued UBS under Sarbanes-Oxley’s

whistleblower-protection provision. At trial, the

parties’ arguments to the jury on causation focused

on a single question: whether UBS fired Murray

because of his whistleblowing. Neither party

discussed whistleblowing’s general tendency to cause

firings or indicated that such a showing would be

sufficient. Nor did either side suggest that an effect

on the manner in which UBS’s termination decision

was made or carried out—as opposed to the

probability that it would decide to fire Murray—was

sufficient to meet Murray’s burden.

At the trial’s conclusion, the court instructed the

jury as to that burden:

[I]n order to prove his claim under Section

1514A of the Sarbanes-Oxley Act, plaintiff

must prove each of the following four

elements by a preponderance of the evidence:

First, that plaintiff engaged in activity

protected by Sarbanes-Oxley;

Second, that UBS knew that plaintiff engaged

in the protected activity;

22a

Third, that plaintiff suffered an adverse

employment action—here, the termination of

his employment at UBS; and

Fourth, that plaintiff’s protected activity was

a contributing factor in the termination of his

employment.

J. App’x at 1389–90.

The court then described each element in more

detail, concluding with the contributing-factor

instruction:

Finally, the fourth element that plaintiff

must prove by a preponderance of the

evidence is that the protected activity in

which he engaged was a contributing factor in

his termination. For a protected activity to be

a contributing factor, it must have either

alone or in combination with other factors

tended to affect in any way UBS’s decision to

terminate plaintiff’s employment. Plaintiff is

not required to prove that his protected

activity was the primary motivating factor in

his termination, or that UBS’s articulated

reasons for his termination—excuse me

UBS’s articulated reason for his termination

was a pretext, in order to satisfy this element.

Id. at 1393.

The jury found UBS liable. On appeal, UBS

principally argued that liability under SarbanesOxley required retaliatory intent and that the trial

court had erred by not instructing the jury on that

requirement. We agreed, citing our Court’s recent

holding in Tompkins v. Metro-North Commuter

Railroad Co., 983 F.3d 74 (2d Cir. 2020), and

23a

reasoning

that

“discrimination”

against

a

whistleblower requires an intent to retaliate. Murray,

43 F.4th at 261. But the Supreme Court reversed us,

finding that a retaliatory-intent requirement would

conflict with Sarbanes-Oxley’s “contributing-factor

burden-shifting framework,” which “is meant to be

more lenient than most.” Murray, 601 U.S. at 35.

Within that framework, Murray needed to prove only

that his whistleblowing “ha[d] a share in bringing

about” his termination, not that it was a but-for

cause or even a motivating factor. Id. at 37. This low

bar “reflects a judgment that personnel actions

against employees should quite simply not be based

on protected whistleblowing activities—not even a

little bit.” Id. at 36–37 (alteration adopted and

internal quotation marks omitted).

On remand, UBS returns us to the contributingfactor instruction, arguing that six words within it—

“tended to affect in any way”—may have caused the

jury to hold Murray to an even lower standard than

the law requires. The majority opinion accepts that

argument, taking what I think to be an

unrealistically dim view of the jury.

II

Discussion

Our touchpoint when reviewing a jury instruction

is the fictive “reasonable juror.” Gabinskaya, 829

F.3d at 132; Miller v. City of New York, No. 23-93,

2024 WL 3271998, at *3 (2d Cir. July 2, 2024)

(summary order). “To assess how a reasonable juror

could interpret an instruction, we focus first on the

specific language of the given instruction, and then, if

that instruction is deficient, examine the entire

charge to see if the instructions as a whole correctly

24a

comported with the law.” United States v. Jones, 30

F.3d 276, 283 (2d Cir. 1994) (citing California v.

Brown, 479 U.S. 538, 541 (1987)).

Put simply, no reasonable juror would interpret

the instructions in the way the majority opinion

suggests. Nor is a reasonable juror so myopic as to be

knocked off course by six words in a charge

comprising more than fifty-seven hundred. See

Gabinskaya, 829 F.3d at 132 (“[T]his Court must look

to the charge as a whole to determine whether it

adequately reflected the law and would have

conveyed to a reasonable juror the relevant law.”

(emphasis added) (internal quotation marks

omitted)).

A

“tended to affect”

Start with the first supposed ambiguity.

According to the majority opinion, “[w]histleblowing

may ‘tend to affect’ termination generally, without

actually being partly responsible for a particular

plaintiff’s termination.” Ante at 12 (quoting an

uncited source). We don’t need to examine the whole

charge to see how implausible this reading really is.

All we need to do is revert the majority opinion’s

tense shift (the instruction used “tended,” not “tend”

or “tends”)3 and read the complete sentence with

some minimal context:

Finally, the fourth element that plaintiff

must prove by a preponderance of the

evidence is that the protected activity in

which he engaged was a contributing factor in

The majority opinion uses “tends” instead of “tended” five

times. Ante at 4, 14, 15 n.4.

3

25a

his termination. For a protected activity to be

a contributing factor, it must have either

alone or in combination with other factors

tended to affect in any way UBS’s decision to

terminate plaintiff’s employment.

J. App’x at 1393 (emphasis added).

No reasonable juror would think that Murray

could satisfy this element by showing that

whistleblowing generally tends to get a person fired,

or even that it generally tends to get a person fired by

UBS. (Murray would have conclusively failed to meet

this burden, since he presented no such evidence at

trial.) Rather, this instruction unambiguously

conveys the correct law as applied to Murray’s suit: to

meet his initial burden, Murray must show that his

whistleblowing made UBS “even a little bit” more

likely to fire him. Murray, 601 U.S. at 37.

The phrase “tended to affect” is a reasonable,

nontechnical way of conveying that burden—that is,

of conveying that Murray needed to show that his

whistleblowing increased the probability that UBS

would fire him, but not that it was a but-for cause of

his being fired. If a particular factor “tended to affect”

“decision to terminate” someone, it made the decision

to terminate that person more or less likely. When it

was specifically a “contributing factor,” it made the

decision more (rather than less) likely. This is

because “tend” means, in its most relevant sense, “to

exert activity or influence in a particular direction.”

Webster’s Third New International Dictionary 2354

(2002) [hereinafter Webster’s Third]; see also

Webster’s New International Dictionary 2600 (2d ed.

1960) (“to exert activity or influence in a particular

26a

direction; . . . as, such an act must tend to weaken

confidence” (italics removed)).

And the phrase “tended to” is commonly used in

this way to refer to specific (not general) exertions of

influence. See, e.g., United States v. Graham, 51

F.4th 67, 83 (2d Cir. 2022) (Park, J.) (“And the

probative value of the evidence was high because it

tended to undermine Graham’s argument that she

lacked mens rea.” (emphasis added)); Schiebel v.

Schoharie Cent. Sch. Dist., 120 F.4th 1082, 1105 (2d

Cir. 2024) (Menashi, J.) (“[T]he remark ‘tended to

“show that the decision-maker was motivated by

assumptions or attitudes relating to the protected

class.”’” (emphasis added) (quoting Sassaman v.

Gamache, 566 F.3d 307, 314 (2d Cir. 2009))).

The majority opinion uses a different definition of

“tend”—“to exhibit an inclination or tendency,” ante

at 12 (quoting Merriam Webster’s Collegiate

Dictionary 1287 (11th ed. 2020)). To be sure, it means

that too—as in, “I tend to order the steak” or “he

tends to eat a light lunch.” But context matters, and

the majority opinion ignores it by forcing an inapt

definition (and a tense shift) into a sentence where it

makes no sense. If an event “tended to affect” a

particular outcome, it means it “exert[ed] . . .

influence in a particular direction,” Webster’s Third

at 2354—that is, it made the outcome more or less

likely. I think a reasonable juror would find this to be

obvious.

B

“affect in any way”

The second supposed ambiguity is no less illusive.

The majority opinion finds that the jury could have

heard the phrase “affect in any way” and believed

27a

that UBS would be liable if Murray’s whistleblowing

affected how it fired him, even if it did not affect its

decision to fire him. Ante at 12. For instance, the jury

might have found UBS liable for consulting its lawyer

before giving Murray his notice. Id.

Surely a reasonable juror would know that

Murray did not sue UBS because of the manner in

which he was fired. He sued UBS because he was

fired. And that is what the instruction conveyed:

Murray needed to prove that his whistleblowing “was

a contributing factor in his termination,” that it

“tended to affect in any way UBS’s decision to

terminate [his] employment.” J. App’x at 1393

(emphasis added).4

The phrase “affect in any way” is an appropriate

way to convey the multiple routes, both direct and

indirect, through which Murray’s whistleblowing

could have increased the probability of his being

fired. UBS could have fired him outright after he

reported misconduct. Or it could have transferred

him to a different job that was more likely to be on

the chopping block. The phrase “in any way” properly

encompasses effects resembling the latter situation,

which a jury might otherwise improperly disregard. A

jury might also reasonably hear “affect in any way” to

mean “affect to any degree,” emphasizing that the

effect could be slight. This would also be an accurate

In common parlance, the word “contributing” means “has

a part in producing an effect.” Webster’s Third at 496 (emphasis

added). The word “factor” means “something . . . that

contributes to the production of a result.” Id. at 813 (emphasis

added). And, importantly, the word “affect” means “to produce a

material influence upon or alteration in.” Id. at 35 (emphasis

added).

4

28a

statement of the law; Murray satisfies this element if

he shows that UBS’s decision to fire him was affected

by his whistleblowing “even a little bit.” Murray, 601

U.S. at 37. But “in any way” is not reasonably

understood to mean “in any way or not at all.”

C

Context

Semantics aside, the majority opinion’s most

striking error is focusing on six words to the

exclusion of the rest of the jury charge. Our job is to

“examine the entire charge to see if the instructions

as a whole correctly comported with the law.” Jones,

30 F.3d at 283; see also Jones v. United States, 527

U.S. 373, 391 (1999) (“[I]nstructions that might be

ambiguous in the abstract can be cured when read in

conjunction with other instructions.”); United States

v. Mitchell, 328 F.3d 77, 82 (2d Cir. 2003) (“We

review a jury charge in its entirety and not on the

basis of excerpts taken out of context.”).

The rest of the charge reinforces the correct

interpretation of Murray’s burden on causation. The

trial court described the “contributing factor” burden

twice before and once after the six words at issue.

First: “[P]laintiff must prove each of the following

four elements by a preponderance of the evidence: . . .

Fourth, that plaintiff’s protected activity was a

contributing factor in the termination of his

employment.” J. App’x at 1389–90. And immediately

before the disputed sentence: “[T]he fourth element

that plaintiff must prove by a preponderance of the

evidence is that the protected activity in which he

engaged was a contributing factor in his

termination.” Id. at 1393. And finally: “In sum, for

plaintiff to prevail on his retaliation claim under the

29a

Sarbanes-Oxley Act, he must prove all four elements

of that claim by a preponderance of the evidence:

Protected activity, knowledge by his employer,

termination of employment[,] and protected activity

as a contributing factor in that termination.” Id. at

1395. These instructions left no room for a reasonable

juror to think that UBS could be liable if Murray’s

whistleblowing was not a “contributing factor”—that

is, if it did not make his firing any more likely.

Were this not enough, the charge’s summary of

Murray’s case made no mention of anything at trial—

argument or evidence—that would hint at a contrary

interpretation:

Mr. Murray claims that he engaged in

activity that is protected under the SarbanesOxley Act when he reported to his immediate

supervisor at UBS that certain members of

the CMBS business unit had attempted to

chill or skew his independent research into

CMBS securities, which conduct he contends

violated one or more rules or regulations

issued by the Securities and Exchange

Commission (or SEC) and/or certain federal

laws concerning fraud. Mr. Murray further

claims that UBS then violated the SarbanesOxley Act by terminating his employment as

a CMBS strategist after, and as a result of,

his reporting of this conduct. Finally, Mr.

Murray claims to have suffered economic and

noneconomic injuries as a result of UBS’s

wrongful conduct, for which he seeks

damages.

J. App’x at 1387–88 (emphasis added). In other

words, Murray never argued to the jury about a

30a

general tendency of whistleblowers to get fired, or

that UBS was liable for firing him at a different time

or in a different way because of his whistleblowing. It

was clear that his case was about UBS choosing to

fire him because he reported misconduct. This was

reinforced throughout the trial court’s instructions.

D

Prejudice

Finally, we don’t need to speculate as to whether

the

jurors

here

properly

understood

the

instructions—they just about told us so. Soon after

starting deliberations, the jury sent a detailed note to

the court requesting, among other things, some

clarification of Murray’s burden to show causation:

It says “tended to affect in any way UBS’s

decision…” What is UBS here? Is it a) the

person w / the final decision? or b) people who

contributed to the decision formally or

informally? c) contributed actively, ie “fire

him” or inactively, ie “I’m not fighting for

him”

Ct. Ex. 4-3, Murray v. UBS Sec., LLC, No. 1:14-cv00927-KPF, ECF No. 391 at 5 (S.D.N.Y. June 3,

2021).

This question makes two things plain. First, the

jury was focused on UBS’s decision to fire Murray,

not on whether whistleblowing generally causes an

employee to get fired. And second, the jury was

focused on the decision to fire Murray, not on the

manner in which that decision was made or carried

out. It is clear to me that the jury was not acting

under either of the misapprehensions animating the

majority opinion.

31a

Regardless, the trial court’s response would have

disabused the jury of any such misapprehensions:

With respect to your inquiry about the

contributing factor element, I refer you to

pages 21 and 22 of the charge. As to your

options a, b, or c, depending on the facts that

you find to be proven by a preponderance of

the evidence, it could be any or all of them.

You should consider (1) who had knowledge of

any protected activity in which Mr. Murray

engaged, and (2) did anyone with that

knowledge of the protected activity, because

of the protected activity, affect in any way the

decision

to

terminate

Mr.

Murray’s

employment.

Ct. Ex. 7 at 2, Murray v. UBS Sec., LLC, No. 1:14-cv00927-KPF, ECF No. 393 (S.D.N.Y. June 4, 2021).

This response omitted the “tended to” language,

and it reaffirmed the jury’s understanding that the

actual firing decision itself was at issue—“the

decision to terminate Mr. Murray’s employment,” id.

(emphasis added)—not whether UBS did anything

irrelevant like “consult[] counsel” before firing him,

ante at 12. If anything, the “because of” language in

the trial court’s response exaggerated Murray’s

burden, since it suggested that he needed to prove

that his whistleblowing was a but-for cause of any act

or omission that contributed to his firing.

Nonetheless, the majority opinion says we should

not be “convinced” that the jury’s verdict for Murray

was based on a correct understanding of his burden.

Ante at 17 (quoting US Airways, Inc. v. Sabre

Holdings Corp., 938 F.3d 43, 54 (2d Cir. 2019)). To be

sure, we should be vigilant to trial errors that can

32a

precipitate unjust verdicts. But the instruction here

was not erroneous. While the interpretations adopted

by the majority opinion would certainly conflict with

the law, they are neither grammatically nor logically

plausible. Even if they were, the jury’s query made

clear that it did not adopt them, rendering them

harmless. In my view, respect for the jury’s

prerogative—not to mention its intelligence—

requires that we not disturb its verdict based solely

on fanciful constructions of a six-word phrase.

III

Conclusion

When this case first came to us, we thought the

trial court had erred by not sufficiently instructing

the jury on retaliatory intent. The Supreme Court

unanimously held that we were wrong. The majority

opinion now maintains the original outcome, but in

doing so it forces unreasonable readings onto a

perfectly adequate jury instruction.

One of the benefits of life tenure is that we can

freely admit when we’re wrong. And one of the duties

of our office is to do so when we are. Rather than

doubling down, we ought to take our lumps and apply

the law as it stands, even when it leads us to a new

result. The majority opinion reflects a different

choice, so I must respectfully dissent.

33a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

________________________________________

At a stated term of the United States Court of

Appeals for the Second Circuit, held at the Thurgood

Marshall United States Courthouse, 40 Foley Square,

in the City of New York, on the 16th day of May, two

thousand twenty-five.

Trevor Murray,

Plaintiff-Appellee-CrossAppellant,

v.

UBS Securities, LLC, UBS AG,

ORDER

Docket Nos:

20-4202 (Lead)

21-56 (XAP)

Defendants-AppellantsCross-Appellees.

Appellee-Cross-Appellant, Trevor Murray, filed a

petition for panel rehearing, or, in the alternative, for

rehearing en banc. The panel that determined the

appeal has considered the request for panel

rehearing, and the active members of the Court have

considered the request for rehearing en banc.

IT IS HEREBY ORDERED that the petition is

denied.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk

[SEAL]

Catherine O’Hagan Wolf

34a

APPENDIX D

49 U.S.C. § 42121

Protection of employees providing air safety

information

*

*

*

(b) Department of Labor and Federal Aviation

Administration complaint procedure.-*

*

*

(2) Investigation; preliminary order.-*

*

*

(B) Requirements.-(i) Required showing by complainant.-The Secretary of Labor shall dismiss a

complaint filed under this subsection and

shall not conduct an investigation

otherwise required under subparagraph

(A) unless the complainant makes a

prima facie showing that any behavior

described in paragraphs (1) through (4) of

subsection (a) was a contributing factor in

the unfavorable personnel action alleged

in the complaint.

(ii)

Showing

by

employer.-Notwithstanding a finding by the

Secretary that the complainant has made

the showing required under clause (i), no

investigation otherwise required under

subparagraph (A) shall be conducted if

the employer demonstrates, by clear and

convincing evidence, that the employer

would have taken the same unfavorable

35a

personnel action in the absence of that

behavior.

(iii) Criteria for determination by

Secretary.--The Secretary may determine

that a violation of subsection (a) has

occurred only if the complainant

demonstrates that any behavior described

in paragraphs (1) through (4) of

subsection (a) was a contributing factor in

the unfavorable personnel action alleged

in the complaint.

(iv) Prohibition.--Relief may not be

ordered under subparagraph (A) if the

employer demonstrates by clear and

convincing evidence that the employer

would have taken the same unfavorable

personnel action in the absence of that

behavior.

*

*

*