Attorney
Center for Corporate Governance

The Center for Corporate Governance at the New York County Lawyers Association

NYCLA’s Center for Corporate Governance is dedicated to educating legal practitioners, their clients and others with an interest in corporate governance, in the best practices for corporations, their officers and in particular, their boards. The principles of corporate governance are evolving and in recent years quite quickly. Officers and board members need to be aware of their responsibilities and duties as the legal and practical landscape of what is acceptable and unacceptable conduct for boards and officers changes.

Many legal practitioners have clients who are among those who have such duties and responsibilities and counsel must continue to educate themselves to be able to advise those clients. The Center for Corporate Governance and NYCLA has decided it is important for them to play a key role in this process not only with their members, but also in the legal community in the greater New York area.

While The Center and NYCLA recognize that there are other outstanding organizations playing a role in bettering Corporate Governance, we intend to work with a number of them to advance the goal of increasing the understanding of good Corporate Governance. The process of coordinating with various groups including universities, industry groups, foundations, and non-profit and for profit entities has already begun.

 

Latest Developments from the Center for Corporate Governance


Gregory Markel, Chair of NYCLA’s Center for Corporate Governance, was recently quoted in an article by Bloomberg Law about the proper standard of proof in cases regarding whistleblower retaliatory firings. To read the full article, click here.


Murray v. UBS: The Second Circuit Creates a

Circuit Split on Whistleblower Claim Standards

By Gregory A. Markel, Christopher F. Robertson & David J. Winkler

In a decision with potentially wide-ranging implications for federal whistleblower protection law, the Second Circuit has held that plaintiffs who allege they were punished by their employers for whistleblowing activity, and who then file suit under the Sarbanes-Oxley Act, must now put forward specific proof of the employer's "retaliatory intent" to prevail. In addition to raising the bar for such lawsuits, the court's August 5, 2022 decision in Murray v. UBS Securities LLC et al. also creates a circuit split, pitting the Second Circuit against two other federal circuits that have specifically held retaliatory intent not to be an element of Sarbanes-Oxley whistleblower claims.

Background

Under Sarbanes-Oxley's antiretaliation provision, a publicly-traded company may not "discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee in the terms and conditions of employment because of" the employee's participation in either an investigation or a formal proceeding regarding alleged violations by the company of certain securities and antifraud laws. 18 U.S.C. § 1514A(a). An employee who feels he or she has faced such retaliation may, after first seeking redress from the Department of Labor, sue the employer in federal court. Id. §§ 1514(b)-(c).

Trevor Murray was one such employee. Hired in 2011 as a strategist in UBS's commercial mortgage-backed securities ("CMBS") business, Murray's job was to research and report on CMBS products for current and potential clients. He was also required by federal regulation to certify that the views expressed in the reports accurately reflected his own, and were not tied to his compensation. Yet Murray was pressured, he would later allege, by two senior employees at the CMBS desk to skew his research and reports in favor of their business strategies. After he complained about this pressure to his direct superior, he alleged he was excluded from routine meetings and ultimately terminated. For its part, UBS claimed that Murray was laid off as part of a strategic reorganization prompted by the company's financial difficulties.

Murray took UBS to court, and eventually before a jury, on a Sarbanes-Oxley antiretaliation claim. The court instructed the jury that to find for Murray, it must find (among other things) that his whistleblowing activity was a "contributing factor" in his termination, which meant that the protected activity "must have either alone or in combination with other factors tended to affect in any way UBS's decision to terminate [his] employment." The jury instruction also clarified that Murray was "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 ... was a pretext." With these instructions in mind, the jury awarded Murray $903,300 in damages and the court awarded approximately $1.76 million in attorney's fees.

On appeal, the Second Circuit vacated the verdict and remanded for a new trial because the district court had failed to instruct the jury that the "contributing factor" element required Murray to show that UBS had "retaliatory intent" in terminating his employment. Such a finding is necessary to sustain any Section 1514A antiretaliation claim, the panel held, for two reasons. First, the statute's text—which contemplates an employee being fired "because of" whistleblowing activity—inherently implies an intention to retaliate, whereas the district court's language of "tended to affect [the decision] in any way" is broad enough to include scenarios that lack any retaliatory animus at all (and could even extend to "a scenario in which, by virtue of his whistleblowing activity, Murray was insulated from a termination to which he would otherwise have been subjected sooner"). Second, the panel cited its own recent decision in Tompkins v. Metro-N. Commuter R.R. Co., in which it had interpreted similar language in the Federal Railroad Safety Act as requiring "some evidence of retaliatory intent." For these reasons, and because the district court's instruction had left it unclear whether the jury had believed UBS in fact acted with retaliatory intent, the Second Circuit held that the error was not a harmless one and compelled reversal.

Implications

The effects of Murray could be dramatic. For one, the Second Circuit's holding that Section 1514A claims require proof of retaliatory intent cuts directly against the holdings of Courts of Appeals in at least two other circuits—a fact which, somewhat unusually, the Murray panel openly acknowledged—and such circuit splits tend to create outcome disparities between jurisdictions. 

Moreover, from an individual litigant perspective, the Second Circuit has significantly raised the threshold for Sarbanes-Oxley whistleblower plaintiffs. Before last week, and still in at least two other circuits, the adjudication of Section 1514A claims depended squarely on a burden-shifting mechanism: after a plaintiff showed that his or her protected activity contributed in some way to an adverse employment action, he or she had an easier path to winning the case, requiring the employer to "present[] clear and convincing evidence that it had a nondiscriminatory justification" for taking the action it took. Bechtel v. Admin. Rev. Bd., U.S. Dep't of Lab., 710 F.3d 443, 448 (2d Cir. 2013). After Murray, in the Second Circuit, the onus is now on the plaintiff to also produce some evidence of the employer's subjective intent to retaliate, and although the burden will still shift to the employer if the plaintiff can do so, a potentially significant number of cases will not meet that requirement that previously may have.

Finally, Murray could have an impact on whistleblower laws other than Sarbanes-Oxley. As U.S. Representative Jackie Speier pointed out in an amicus curiae brief, there are approximately two dozen other whistleblower-protection statutes that use burden-shifting mechanisms akin to Section 1514A's, and the Second Circuit's recalibration of the standard in Murray could be cited by other courts to bring about similar changes in those laws as well.



On May 18, 2022, the Fifth Circuit held in Jarkesy v. SEC, that the agency’s use of in-house Administrative Law Judges, as opposed to its filing of an enforcement action in federal court, is unconstitutional. In the following guest post, Gregory A. Markel, Vincent A. Sama, Daphne Morduchowitz, Giovanna A. Ferrari, and Matthew C. Catalano of the Seyfarth Shaw law firm review the Fifth Circuit’s opinion, and discuss its implications.


Read more in the article "SEC’s In-House Adjudication Deemed Unconstitutional by Fifth Circuit" here: https://www.dandodiary.com/2022/05/articles/securities-laws/guest-post-secs-in-house-adjudication-deemed-unconstitutional-by-fifth-circuit/



NYCLA’s Center for Corporate Governance’s Chair, Greg Markel and Giovanna Ferrari Author Class Action Settlement Article for Practical Law

Greg Markel and Giovanna Ferrari, partners at Seyfarth Shaw LLP, authored "Settling Securities Class Actions, the cover article for the December issue of Practical Law magazine. The article focuses on the unique attributes of securities class actions that raise procedural and strategic concerns that may affect the settlement process.

Areas covered in the article include:

  • The legal framework for securities class action settlements
  • The importance of early case assessment
  • The optimal timing to begin settlement discussions with the opposing party
  • The key settlement terms to negotiate
  • The settlement approval process
  • The confidentiality concerns raised when filing a proposed settlement agreement
  • The grounds for objecting to a settlement
  • The prevalence of opt-outs in securities class actions
  • The use of cy pres distributions

The full text of the article is available here

https://www.seyfarth.com/dir_docs/publications/PLJ_LIT_Dec20Jan21_Feature.pdf


Corporate Governance Programs Available On Demand

The Center’s inaugural program was The Significance of Recent Developments in Delaware Corporate Governance Law and What Practitioners and Their Clients Need to Know.

Our second program, Special Board Committees was held in January 2017 at the Yale Club in NYC and Co-sponsored by The Deal. As an outgrowth of the preparation for the program, Greg Markel and Heather E. Murray wrote an article on Internal Investigations: Special Board Committees, published in the June/July 2017 issue of Practical Law. Click here to read the full article.

In December 2017, we conducted a WEBINAR, Trends in Securities Litigation, where a panel of experts discussed the important trends in the filing of securities class actions, including  the surge in the number of class action filings, the reasons for the increased number of filings as well as the changes in the characteristics of the cases. If you missed this program, it can be viewed ON DEMAND by clicking HERE .

In other recent developments, The Delaware Supreme Court has issued its much-anticipated unanimous decision in the “long-running appraisal saga” that took place following the 2013 management-led buyout of Dell.  In reversing the lower court’s ruling that had awarded stockholder petitioners a 28 percent premium over the deal price, the Court emphasized that the Vice Chancellor erred in relying exclusively on the Chancery Court’s own discounted cash flow analysis to reach a fair value calculation, where, as here, the decision to give no weight to either the stock price or the deal price was not supported by the court’s key factual findings or by relevant, accepted financial principles.  The Supreme Court suggested that the Chancery Court on remand should instead give “heavy weight” to the deal price due to the compelling “evidence of market efficiency, fair play, low barriers to entry, outreach to all logical buyers, and the chance for any topping bidder to have the support of Mr. Dell’s own votes.”  

To read the decision, click here.

To read the “One Minute Memo” discussing the decision written by Gregory Markel and Heather Murray click here


 For more information please contact Greg Markel, Partner, Seyfarth Shaw LLP,
 and Chairman of the Center for Corporate Governance at the New York County Lawyers Association.
 Mr. Markel can be reached at gmarkel@seyfarth.com.

 Interested in developments impacting Corporate Governance? The we invite you to join the Center for Corporate Governance at NYCLA LinkedIn Group