“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. It includes judges nominated in both his first and second terms.
Judge Michael Park, who was nominated by Donald Trump to the Second Circuit Court of Appeals, wrote a 2-1 opinion joined by Trump judge Steven Menashi that reversed a district court and ruled that a securities corporation could not be held liable for firing a whistleblower who reported that other employees were violating Securities and Exchange Commission (SEC) rules. Judge Myrna Perez, who was nominated by President Biden, strongly dissented in the February 2025 decision in Murray v UBS Securities.
What happened in this case?
Trevor Murray began working as a research strategist for a large securities company, UBS Securities LLC. He discovered that other employees were violating SEC regulations and reported that to a supervisor. After these complaints, UBS fired him.
Murray filed suit against UBS under a provision of the Sarbanes-Oxley Act that protects corporate whistleblowers who can show that their whistleblowing was a “contributing factor” in their termination. A jury concluded that he did make that showing and found in his favor and against UBS.
UBS appealed to the Second Circuit, which found for UBS, claiming that Murray was required by law to specifically prove retaliatory intent. The Supreme Court unanimously disagreed and reversed. The case then returned to the Second Circuit.
Why was the decision by Judges Park and Menashi harmful?
Despite the Supreme Court’s ruling, Judges Park and Menashi again found in favor of UBS, as they had the first time the case came to the Second Circuit. They held that the instructions to the jury were too vague and could have been interpreted to allow the jury to find for Murray if it concluded that his whistleblowing affected how he was fired, not whether to fire him.
Judge Myrna Perez, who had concurred in the first Second Circuit decision, strongly dissented this time. She explained that when read in full and in context, as judges and jurors are required to do, the instructions made clear that a “reasonable juror” could find UBS liable only if the whistleblowing was a “contributing factor” in the decision to fire him, as the law mandates. In fact, as Justice Sotomayor explained in the Supreme Court ruling on the case, the law was specifically intended to counteract the existing “code of silence” in securities and other corporations that tended to “discourage employees from reporting fraudulent behavior.” Rather than “doubling down” and ruling a second time against the whistleblower, Judge Perez wrote, the court should ‘take our lumps and apply the law as it stands” to protect whistleblowers.
Unless it is reversed again by the Supreme Court, the opinion by Park and Menashi will obviously harm Trevor Murray, and will also undermine the purpose of the whistleblower protection provisions in the Sarbanes-Oxley law. This is particularly so in the Second Circuit, which includes New York, Connecticut, and Vermont. The decision illustrates the importance of our federal courts to health, welfare and justice and the significance of having fair-minded judges on the federal bench.