WEBVTT - Biden Document's Report & UBS Whistleblower 0:00:03.200 --> 0:00:08.000 This is Bloomberg Law with June Brusso from Bloomberg Radio. 0:00:10.240 --> 0:00:12.680 I was praised to see he reached the firm conclusion 0:00:13.320 --> 0:00:17.439 that no charges should be brought against me in this case. 0:00:18.400 --> 0:00:23.200 This was an exhaustive investigation going back more than forty years. 0:00:23.560 --> 0:00:27.280 Special Counsel Robert Hurd did not charge President Joe Biden 0:00:27.600 --> 0:00:32.400 after finding he knowingly stored and disclosed classified documents in 0:00:32.600 --> 0:00:37.040 unsecured locations at his homes in Virginia and Delaware, concluding 0:00:37.080 --> 0:00:40.680 that the evidence did not establish Biden's guilt beyond a 0:00:40.720 --> 0:00:43.960 reasonable doubt. And if the four hundred page report had 0:00:44.080 --> 0:00:47.599 stopped with those legal conclusions, it probably would have been 0:00:47.640 --> 0:00:50.959 the end of the matter. But the Special Council included 0:00:51.000 --> 0:00:55.080 what many Democrats see as gratuitous swipes at Biden's memory, 0:00:55.520 --> 0:01:00.440 in particular saying quote, we have also considered that at trial, 0:01:00.600 --> 0:01:04.120 mister Biden would likely present himself to a jury as 0:01:04.120 --> 0:01:07.400 he did during our interview of him, as a sympathetic, 0:01:07.600 --> 0:01:10.679 well meaning elderly man with a poor memory. 0:01:11.480 --> 0:01:13.320 My memory, take a look at what I've done since 0:01:13.319 --> 0:01:15.759 I become president. None of you thought I could pass 0:01:15.800 --> 0:01:18.119 any of the things I got passed how'd that happen? 0:01:18.600 --> 0:01:22.360 Of course, former President Donald Trump is facing criminal charges 0:01:22.400 --> 0:01:25.920 for his mishandling of classified documents, and he called for 0:01:26.000 --> 0:01:29.200 the charges against him to be dropped as well. If 0:01:29.200 --> 0:01:33.720 Biden is not going to be charged, he said, that's 0:01:33.760 --> 0:01:34.280 up to them. 0:01:34.319 --> 0:01:36.120 You know. Look, if he's not going to be charged, 0:01:37.240 --> 0:01:38.120 that's up to them. 0:01:38.680 --> 0:01:40.600 But then I should not be charged. 0:01:41.280 --> 0:01:44.920 My guest is national security expert Brad Moss, a partner 0:01:44.959 --> 0:01:49.200 at Mark Zaid. So, Brad, did Biden have classified documents 0:01:49.240 --> 0:01:52.600 about the Afghanistan war? Is that basically it? And what 0:01:52.720 --> 0:01:54.760 classified ranking do they have? 0:01:55.680 --> 0:01:57.960 So the records that, as far as I understand, were 0:01:58.000 --> 0:02:02.440 found could certainly have implicated very sensitive information in terms 0:02:02.480 --> 0:02:06.680 of US government defense policy and true strategy, things along 0:02:06.680 --> 0:02:08.240 those lines. And as far as we can tell, at 0:02:08.320 --> 0:02:11.000 least some of the records that were found between the 0:02:11.280 --> 0:02:15.359 Biden House and then in the different facilities were classified 0:02:15.440 --> 0:02:18.000 up to top secret. So it's not as if this 0:02:18.200 --> 0:02:21.679 was not legitimately sensitive classified information. They never should have 0:02:21.720 --> 0:02:23.760 been any of those places. They always should have been 0:02:23.800 --> 0:02:27.360 returned to a proper classified facility, and the President should 0:02:27.360 --> 0:02:30.160 be a little bit ashamed for that. But in terms 0:02:30.200 --> 0:02:33.240 of the substance of what these documents appeared to have been, 0:02:33.240 --> 0:02:36.120 particularly from his time as vice president. It appears to 0:02:36.120 --> 0:02:39.560 be things that he personally created, but then you know, 0:02:39.680 --> 0:02:42.639 quite possibly not realizing the classification rules because he never 0:02:42.720 --> 0:02:45.080 worked in the executive branch as anything other than as 0:02:45.160 --> 0:02:47.360 vice president. He took them home with him, and at 0:02:47.400 --> 0:02:49.600 the time he probably could because the government would have 0:02:49.639 --> 0:02:52.920 covered with proper facilities while he was vice president. But 0:02:53.000 --> 0:02:55.919 once that changed, it wasn't properly returned to storage the 0:02:55.960 --> 0:02:57.800 way it was supposed to be. It was things like 0:02:58.160 --> 0:03:01.160 a memo he authored or brought Obama when Joe Biden 0:03:01.200 --> 0:03:03.880 was Vice president and Obama was president. It was handwritten 0:03:03.880 --> 0:03:07.040 note that Biden took based off classified documents. Those should 0:03:07.080 --> 0:03:10.000 never be removed from a classified storage facility. The fact 0:03:10.040 --> 0:03:11.160 they were is embarrassing. 0:03:11.680 --> 0:03:14.920 He did tell a ghost writer that he had just 0:03:15.000 --> 0:03:19.200 found all this classified stuff downstairs and that some of 0:03:19.280 --> 0:03:22.640 what he told him may be classified, so be careful. 0:03:23.160 --> 0:03:26.840 So does that show that he knew that he had 0:03:26.840 --> 0:03:28.040 classified documents? 0:03:28.680 --> 0:03:31.120 So this kind of addressed a lot in the Special 0:03:31.120 --> 0:03:35.760 Council's report. The only evidence that Joe Biden was aware 0:03:36.360 --> 0:03:40.360 that documents he still had after leaving the vice presidency 0:03:40.920 --> 0:03:43.680 were classified and were in his personal possession. Are those 0:03:43.720 --> 0:03:46.880 eight words, he uttered to the ghost writer of I 0:03:47.000 --> 0:03:49.200 just found and classified stuff in the attic or the basement, 0:03:49.280 --> 0:03:49.960 whatever it was. 0:03:50.520 --> 0:03:50.960 That's it. 0:03:51.040 --> 0:03:55.560 The Special Council could not find any other evidence, from witnesses, 0:03:55.560 --> 0:04:00.520 from documentation, anything to corroborate the idea that Biden actually 0:04:00.520 --> 0:04:04.360 found something in twenty seventeen, that the documents were in 0:04:04.480 --> 0:04:06.920 them fact classified, that they were in fact the same 0:04:07.000 --> 0:04:10.400 documents that were ultimately recovered. And so that became part 0:04:10.400 --> 0:04:13.240 of the problem was there was no meat on that bone. 0:04:13.360 --> 0:04:16.480 It could have been nothing more on an erroneous comment 0:04:16.640 --> 0:04:20.240 by President Biden that was not actually based on actual 0:04:20.279 --> 0:04:24.359 classified documents. They couldn't find any proof to substantiate that remark. 0:04:24.720 --> 0:04:28.839 And in terms of what Joe Biden said to the 0:04:28.839 --> 0:04:31.880 ghostwriter about whether or not the information he was providing 0:04:31.880 --> 0:04:35.760 could be classified, the dirtiest but most openly known secret 0:04:36.160 --> 0:04:39.359 within the US government is that when former government officials 0:04:39.440 --> 0:04:42.039 go and write their books, none of him write these 0:04:42.040 --> 0:04:45.640 things themselves. They all have ghostwriters. They all spill secrets 0:04:45.640 --> 0:04:48.600 to the ghostwriters. They're not supposed to do it, but 0:04:48.800 --> 0:04:51.760 everybody does this, and the US government kind of says, 0:04:52.160 --> 0:04:54.840 we'll let you go with that, so long as you know, 0:04:55.160 --> 0:04:58.240 the books themselves ultimately get screened with classified information. 0:04:59.040 --> 0:05:05.640 The conclusion was that Biden wilfully retained and disclosed classified materials, 0:05:06.080 --> 0:05:09.760 but her couldn't prove that corex. 0:05:09.839 --> 0:05:12.279 He couldn't prove that he had wilfully done it in 0:05:12.279 --> 0:05:15.960 the sense that Biden was ever truly aware that there 0:05:16.120 --> 0:05:20.279 was classified documents still in his possession post Obama administration. 0:05:20.960 --> 0:05:23.320 The only evidence were those eight words to the ghostwriter. 0:05:23.680 --> 0:05:26.200 There was no other evidence of it. And even if 0:05:26.240 --> 0:05:28.160 they could have proven that, and this is what a 0:05:28.160 --> 0:05:31.080 special Council messed up the legal analysis. Even if they 0:05:31.080 --> 0:05:33.720 could prove intent deply by the fact that the documents 0:05:33.720 --> 0:05:37.400 were there, the Espionage Act provision, which the same one 0:05:37.400 --> 0:05:40.720 that's being used against Donald Trump, has an additional caveat. 0:05:41.160 --> 0:05:44.520 You have to also demonstrate a refusal by the individual 0:05:44.600 --> 0:05:47.640 to return the documents once confronted about it by the 0:05:47.760 --> 0:05:51.559 US government. That obstructive act is what got Donald Trump 0:05:51.560 --> 0:05:54.480 in trouble. That he played games and tried to conceal things. 0:05:54.480 --> 0:05:57.640 According to the indictment against him, that did not happen 0:05:57.680 --> 0:06:00.839 with Joe Biden when he was confronted, they turned the 0:06:00.880 --> 0:06:04.279 documents over like they're supposed to it. In those circumstances, 0:06:04.360 --> 0:06:07.560 the government virtually never pursues criminal charges. 0:06:08.080 --> 0:06:12.080 And in fact, this hasn't gotten as much media attention 0:06:12.760 --> 0:06:16.800 as the characterization of Biden's memory. But the Special Council 0:06:16.880 --> 0:06:20.880 sets out the difference between Biden's case and Trump's case. 0:06:21.560 --> 0:06:24.440 Yeah, and that was the one I would say silver 0:06:24.520 --> 0:06:28.200 lining to how the Special Council approach to the report 0:06:28.240 --> 0:06:32.239 was to make clear and delineate those distinctions. But by 0:06:32.279 --> 0:06:37.359 going into these other extraneous and irrelevant remarks about Biden's memory, 0:06:37.600 --> 0:06:41.000 which would have no bearing at all on the government's 0:06:41.000 --> 0:06:44.799 ability to prove their case, it inserted a political element 0:06:45.040 --> 0:06:48.599 to this report that was completely improper and just raise 0:06:48.839 --> 0:06:52.320 memories for so many of James Comy in July of 0:06:53.040 --> 0:06:57.200 twenty sixteen, making his irrelevant and extringuous remarks about Hillary Clinton. 0:06:57.360 --> 0:06:59.800 They couldn't bring charges, but they decided to launch a 0:06:59.800 --> 0:07:00.719 political attack. 0:07:01.080 --> 0:07:03.760 Yeah, he said. We have also considered that at trial, 0:07:04.160 --> 0:07:07.279 mister Biden would likely present himself to a jury as 0:07:07.279 --> 0:07:10.400 he did during our interview of him, as a sympathetic, 0:07:10.560 --> 0:07:13.880 well meaning elderly man with a poor memory. So, Brad, 0:07:13.920 --> 0:07:16.520 how many times have you heard witnesses and deposition say 0:07:16.560 --> 0:07:19.400 I don't recall, I don't remember, or words. 0:07:19.040 --> 0:07:21.600 To that effect more times that I can count, And 0:07:21.640 --> 0:07:24.480 I can remember Donald Trump doing it to mister Muller 0:07:24.600 --> 0:07:28.160 in writing, because remember Trump never actually stacked for a deposition. 0:07:28.280 --> 0:07:31.560 He admitted responses to written questions he had I do 0:07:31.640 --> 0:07:34.119 not recall in there a bunch of times. Marjorie Taylor 0:07:34.200 --> 0:07:39.360 Green on the stand in her disqualification trial, constantly said 0:07:39.360 --> 0:07:42.160 I do not recall. It is a common thing. People 0:07:42.240 --> 0:07:45.440 don't remember these kinds of details, especially years after the fact. 0:07:45.800 --> 0:07:48.960 But what was important from a legal standpoint, and this 0:07:49.000 --> 0:07:51.880 is again where the Special Council got it wrong, is 0:07:51.920 --> 0:07:54.320 that whether or not Biden could prove he had a 0:07:54.360 --> 0:07:58.480 poor memory would do nothing to save him as a 0:07:58.600 --> 0:08:01.520 legal matter in terms of criminal culpability. Putting aside that 0:08:01.720 --> 0:08:04.400 he would never testify, just as Donald Trump's not going 0:08:04.440 --> 0:08:08.200 to testify in any of his trials, isn't entirely irrelevant 0:08:08.200 --> 0:08:11.480 to the government's case and their ability to demonstrate criminal culpability. 0:08:11.600 --> 0:08:13.720 The extent to which Joe Biden has a good memory 0:08:13.760 --> 0:08:15.040 in this context. 0:08:15.120 --> 0:08:18.680 And I mean the Justice Department rules and the intent 0:08:18.960 --> 0:08:22.800 is that federal prosecutor should remain sensitive to the privacy 0:08:22.800 --> 0:08:25.520 and reputation interests of uncharged parties. 0:08:25.840 --> 0:08:29.040 But that's correct, that's not the wind here. Yeah, that's 0:08:29.040 --> 0:08:30.960 out the window this point. And this is again when 0:08:30.960 --> 0:08:33.800 I read this executive summary that at the beginning before 0:08:33.840 --> 0:08:35.640 we got to the bigger report. But when I read 0:08:35.679 --> 0:08:39.160 the executive's summary and reading these extraneous remarks, I gotta 0:08:39.200 --> 0:08:43.120 say before it just brought back memories of July twenty sixteen, 0:08:43.400 --> 0:08:45.560 because this is stuff that you were not supposed to 0:08:45.559 --> 0:08:48.520 do at the Justice Department. You don't engage in these 0:08:48.559 --> 0:08:51.800 extraneous political attacks on someone you've decided not to charge. 0:08:52.120 --> 0:08:55.319 You know, Robert Muller's report, for all it's in depth, 0:08:55.400 --> 0:08:58.240 you know details, didn't make those kind of political attacks 0:08:58.240 --> 0:09:01.000 on Donald Trump. Never went to that part because he 0:09:01.040 --> 0:09:04.360 wrote his in line with department procedures and policies. I 0:09:04.400 --> 0:09:07.880 do not believe Special Counsel her adhere to those practices. 0:09:08.600 --> 0:09:11.760 And what could Garland have done? I mean he could 0:09:11.760 --> 0:09:14.280 he have released a summary like Bill Barr did with 0:09:14.360 --> 0:09:17.880 the Muller report, or could he have requested that gratuitous 0:09:17.880 --> 0:09:20.120 information about Biden be edited out. 0:09:20.800 --> 0:09:23.880 Yes, he could have done all those things. He could 0:09:23.920 --> 0:09:26.520 have done, you know, his own executive summary, just like 0:09:26.559 --> 0:09:28.880 Bill Barr did. He would have had complete authority to 0:09:28.880 --> 0:09:30.120 do it in discretion. 0:09:29.760 --> 0:09:30.800 On the regulations. 0:09:30.920 --> 0:09:34.480 Merrick Garland is far more of an institutionalist than Bill 0:09:34.520 --> 0:09:37.760 Barr was, and certainly then Donald Trump was. And Marrick 0:09:37.800 --> 0:09:42.080 Garland said transparency is the best avenue here. Just put 0:09:42.080 --> 0:09:44.840 it out. That was his choice. He's going to have 0:09:44.880 --> 0:09:47.880 to live with that. In terms of the political rapification. 0:09:48.080 --> 0:09:51.320 I mean, does this point to you know the problem 0:09:51.360 --> 0:09:54.320 with special counsels? I mean here he conducted one hundred 0:09:54.360 --> 0:09:57.640 and seventy three interviews, one hundred and forty seven witnesses, 0:09:58.200 --> 0:10:02.280 including Biden, collected millions of documents to compile the report, 0:10:02.440 --> 0:10:06.320 and there is enormous pressure for these special council to 0:10:06.400 --> 0:10:07.160 bring charges. 0:10:07.960 --> 0:10:10.079 Yeah, and this is where we've unfortunately gotten to the 0:10:10.120 --> 0:10:13.400 point where the Special Council regulations have been corrupted the 0:10:13.400 --> 0:10:17.680 way the original Independent Council statue passed by Congress got corrupted. 0:10:17.720 --> 0:10:20.760 When you create the sort of you know, independent positions, 0:10:21.240 --> 0:10:24.040 you give them these budgets and you give them what 0:10:24.120 --> 0:10:27.800 is ultimately in all these cases a politically charged legal question. 0:10:28.200 --> 0:10:31.400 They feel it necessary to justify their work. The only 0:10:31.480 --> 0:10:35.240 person who got a very simple and sweet investigation was 0:10:35.280 --> 0:10:38.160 Mike Penn and that's because there ultimately was no special counsel. 0:10:38.200 --> 0:10:40.720 It was handled by a US Attorney's office. But for 0:10:41.000 --> 0:10:44.880 Joe Biden, for Donald Trump, with Durham investigation as well, 0:10:44.920 --> 0:10:48.719 in terms of Hillary Clinton and administration, it's always these 0:10:48.720 --> 0:10:53.080 special councils. Now everything requires a special council, and inevitably 0:10:53.320 --> 0:10:56.880 they seek to find a way to justify their expense, 0:10:57.120 --> 0:11:00.200 and they ultimately, in some cases start bringing cases that 0:11:00.280 --> 0:11:03.600 don't succeed, particularly a trial. We saw that with Durham probe, 0:11:03.720 --> 0:11:06.720 two different not guilty verdicts a trial, they couldn't prove 0:11:06.760 --> 0:11:10.000 their original premise. We saw that with Special Counsel Herd 0:11:10.080 --> 0:11:13.640 does all this stuff, declines to bring charges appropriately in 0:11:13.640 --> 0:11:16.360 my view, against Joe Biden, but then writes this, you know, 0:11:16.400 --> 0:11:20.280 political charge summary. This is a problem we did not 0:11:20.400 --> 0:11:22.840 anticipate with the special council regulation. 0:11:23.320 --> 0:11:26.360 And now I suppose the next question is going to 0:11:26.400 --> 0:11:30.400 be whether there will be a release of all or 0:11:30.559 --> 0:11:36.120 part of the questioning of Joe Biden. By the special counsel. 0:11:36.840 --> 0:11:40.160 More to come. Thanks so much, brad. That's Bradley Moss 0:11:40.200 --> 0:11:44.240 of Mark Zaid. In other legal news today, as expected, 0:11:44.440 --> 0:11:47.760 Donald Trump is asking the Supreme Court to keep his 0:11:47.840 --> 0:11:51.280 criminal trial for trying to overturn the twenty twenty election 0:11:51.880 --> 0:11:54.719 on hold while he appeals a ruling from the d 0:11:54.920 --> 0:11:59.040 C Circuit Court that rejected his bid for immunity from prosecution. 0:11:59.440 --> 0:12:02.040 Trump is ask the Justices to give him the option 0:12:02.120 --> 0:12:05.000 of seeking review from an on bank panel of the 0:12:05.080 --> 0:12:09.000 DC Circuit rather than appealing directly to the Supreme Court. 0:12:09.320 --> 0:12:12.680 Coming up next, in a defeat for Ubs, the Supreme 0:12:12.720 --> 0:12:17.960 Court makes it easier for whistleblowers. This is bloomberg in 0:12:18.000 --> 0:12:21.400 a win for whistleblowers and a loss for Ubs. The 0:12:21.440 --> 0:12:24.520 Supreme Court has made it easier for whistleblowers to win 0:12:24.679 --> 0:12:29.480 suits claiming retaliation under a federal investor protection law. The 0:12:29.760 --> 0:12:33.720 Justices reinstated a nine hundred thousand dollars jury verdict won 0:12:33.800 --> 0:12:38.720 by a fired Ubs Group research strategist. In a unanimous decision. 0:12:39.040 --> 0:12:42.600 The Justice is found that a whistleblower is not required 0:12:42.640 --> 0:12:46.640 to make a showing that the employer acted with retaliatory intent. 0:12:47.400 --> 0:12:51.640 Why well, simply that requirement doesn't square with the language 0:12:51.679 --> 0:12:54.960 of the two thousand and two Sarbanes Oxley Act. As 0:12:55.080 --> 0:12:59.160 Justice Neil Gore such emphasized during oral arguments as he 0:12:59.280 --> 0:13:03.440 questioned ubbs's attorney, Eugene Scalia, the son of the late 0:13:03.679 --> 0:13:05.520 Justice Antonin Scalia. 0:13:05.280 --> 0:13:06.320 Whistle or retaliation. 0:13:06.360 --> 0:13:08.640 I just don't see those words in this statute. 0:13:08.880 --> 0:13:12.680 I see discrimination in the statute, and I see whistle 0:13:12.679 --> 0:13:15.439 blowing activity, and I know there's a causation requirement, but 0:13:15.480 --> 0:13:18.840 I don't see the retaliation in the statute yet. So 0:13:18.960 --> 0:13:20.920 help me, help. You're asking me to read things into 0:13:21.000 --> 0:13:23.160 statues that aren't there. Aren't you. 0:13:23.200 --> 0:13:26.720 Counsel joining me is John George Arris, a partner at 0:13:26.679 --> 0:13:29.800 Scarincy Holland Beck. First tell us about the facts of 0:13:29.840 --> 0:13:30.880 the case itself. 0:13:31.679 --> 0:13:35.840 So, we have an employee of UBS that was fired 0:13:36.240 --> 0:13:40.600 in connection with a complaint that he had made to 0:13:41.200 --> 0:13:47.040 HR regarding two UBS trading desk employees who were essentially 0:13:47.600 --> 0:13:52.440 pressuring him to put a flint on his reporting. This individual, 0:13:52.800 --> 0:13:57.480 the person that was terminated from UBS, was producing research 0:13:57.559 --> 0:14:00.719 reports and it was a requirement under the Securities and 0:14:00.800 --> 0:14:06.520 Exchange Commissions Framework that these reports be independent. So the 0:14:06.559 --> 0:14:10.559 individual here thought he was under pressure, made a complaint 0:14:10.920 --> 0:14:16.960 within UBS internally, and then shortly thereafter was terminated, which 0:14:17.120 --> 0:14:22.800 then led to the lawsuit under Starbaine's Oxley for a 0:14:22.920 --> 0:14:28.280 claim that this was a retaliatory adverse employment action, which 0:14:28.360 --> 0:14:30.240 led us eventually to the Supreme Court. 0:14:30.680 --> 0:14:33.480 So the jury rule for him, but then the second 0:14:33.560 --> 0:14:36.280 Circuit reversed. Explain why the second Circuit reversed. 0:14:37.080 --> 0:14:41.680 So the essential issue in this case is what a 0:14:41.760 --> 0:14:47.840 plaintiff has to prove verse what the defendant UBS would 0:14:47.920 --> 0:14:52.200 have to counter with. The reason the second Circuit reversed 0:14:52.200 --> 0:14:56.480 the case is because at the district court level, the 0:14:56.920 --> 0:15:01.680 court did not instruct the jury that plaintiffs, the employee 0:15:01.720 --> 0:15:07.000 that was fired, was required to show that his employer 0:15:07.160 --> 0:15:12.640 acted with retaliatory intent. This was an element that the 0:15:12.680 --> 0:15:17.000 Second Circuit felt Congress had put into the law and 0:15:17.040 --> 0:15:19.920 that he was required as a plaintiff to prove that. 0:15:20.560 --> 0:15:24.200 By not giving the jury that instruction, the Second Circuit 0:15:24.280 --> 0:15:28.160 said that the district court had aired and then reversed 0:15:28.200 --> 0:15:32.600 the case on this basis of retaliatory intent being a 0:15:32.720 --> 0:15:35.800 key element of the claim, which then later brings us 0:15:35.840 --> 0:15:38.600 to the Supreme Court. Where that issue was then litigated. 0:15:39.040 --> 0:15:41.520 So was there a split in the circuits about whether 0:15:41.560 --> 0:15:44.640 you need retaliatory intent or not exactly? 0:15:44.800 --> 0:15:47.840 And that's what led to the appeal to the Supreme Court. 0:15:47.960 --> 0:15:51.760 That decision created a split, and therefore we needed clarity 0:15:51.760 --> 0:15:54.000 on the wall for what a plaintiff was required to 0:15:54.040 --> 0:15:58.280 show in order to make this claim a retaliatory employment claim. 0:15:58.520 --> 0:16:01.520 All right, So what did this Supreme Court say? 0:16:02.480 --> 0:16:06.800 The Supreme Court came down in a nine to zero 0:16:06.920 --> 0:16:13.800 unanimous decision ruling in favor of the plaintiffs, and essentially 0:16:13.800 --> 0:16:16.960 the whole thing. It's very simple. The court held that 0:16:17.040 --> 0:16:21.640 this whistle blower the employee, must prove that their activity 0:16:22.240 --> 0:16:27.400 was a contributing factor in the employee's unfavorable personnel action, 0:16:27.560 --> 0:16:33.080 but need not prove that the employer acted with retaliatory intent. 0:16:33.680 --> 0:16:36.800 So that's the key. The Supreme Court came back and said, 0:16:37.240 --> 0:16:40.760 retaliatory intent is not part of this. All you have 0:16:40.840 --> 0:16:45.520 to do is show as a plaintiff that the retaliatory 0:16:45.960 --> 0:16:51.720 action was in connection with the protected whistleblower activity. Here 0:16:51.880 --> 0:16:54.360 it was raising the fact that he was put under 0:16:54.400 --> 0:16:59.360 pressure to produce reports that weren't independent. If the planeff 0:16:59.440 --> 0:17:03.320 is able to prove that retaliation at least was a 0:17:03.400 --> 0:17:08.920 part of the termination, then the burden shifts to the employer. 0:17:09.240 --> 0:17:12.280 In this regard to Ubs, we then has to demonstrate 0:17:12.320 --> 0:17:16.720 by clear and convincing evidence that know, the report to 0:17:16.960 --> 0:17:21.040 HR the whistle Blowing Act had nothing to do with 0:17:21.160 --> 0:17:26.159 the retaliation. And specifically here you'd be a stated the 0:17:26.200 --> 0:17:29.280 business had lost millions of dollars and that this employee 0:17:29.480 --> 0:17:33.240 was dispensable because the work that he was producing these 0:17:33.240 --> 0:17:38.720 research reports weren't necessary to UBS's business. That was their 0:17:39.080 --> 0:17:42.160 attempt to try to say it wasn't retaliatory. But that's 0:17:42.200 --> 0:17:45.560 the burden shifting mechanism. And the way the court came 0:17:45.640 --> 0:17:48.840 down at the end of the day is they eliminated 0:17:49.280 --> 0:17:53.720 this retaliatory intent portion of it, saying that it wasn't 0:17:53.760 --> 0:17:57.560 really part of Congress's intent and it would undermine the 0:17:57.560 --> 0:18:01.720 burden shifting framework of bringing a and then attempting to rebut. 0:18:01.560 --> 0:18:07.040 It it seems like this really lowers the burden for 0:18:07.359 --> 0:18:10.320 plaintiffs in these kinds of cases. I mean, will it 0:18:10.359 --> 0:18:12.720 make it much easier for them to prove their case. 0:18:13.400 --> 0:18:18.240 I believe that this would motivate individuals that were terminated 0:18:18.320 --> 0:18:24.520 after a whistleblower complaint to bring more claims, because this 0:18:24.680 --> 0:18:28.879 retaliatory intent in and of itself as an element is 0:18:28.920 --> 0:18:31.840 hard to get to because you're going to someone's mindset 0:18:32.160 --> 0:18:35.639 and that may be very difficult to break down. So yes, 0:18:35.760 --> 0:18:39.400 I do think that ultimately the Supreme Court has opened 0:18:39.400 --> 0:18:42.120 the door to more of these cases. And there's still 0:18:42.119 --> 0:18:44.639 a burden. You still have to prove, at least by 0:18:44.640 --> 0:18:47.840 a preponderance of the evidence that you were terminated, at 0:18:47.920 --> 0:18:51.000 least in part as a result of your protected activity 0:18:51.080 --> 0:18:54.640 making a claim to HR whistle blowing in some way, 0:18:54.640 --> 0:18:57.159 shape or form. So it's still there, it's just not 0:18:57.320 --> 0:19:01.560 that extra step of retaliatory in So I would imagine 0:19:01.600 --> 0:19:04.440 that we will see an uptick in these types of cases. 0:19:04.560 --> 0:19:07.960 And several business groups, including the US Chamber of Commerce, 0:19:07.960 --> 0:19:11.960 had asked the Supreme Court to side with UBS, and 0:19:12.000 --> 0:19:16.760 this is a Supreme Court that is very much business oriented. 0:19:16.840 --> 0:19:18.920 So was this a surprising decision. 0:19:19.760 --> 0:19:22.720 It was somewhat of a surprising decision, especially that it 0:19:22.800 --> 0:19:25.600 came down nine to zero and it was drafted by 0:19:25.760 --> 0:19:29.679 Justice Sotomayor. The opinion. It is somewhat surprising that this 0:19:29.840 --> 0:19:32.399 is where they landed. But I think this Supreme Court 0:19:32.400 --> 0:19:39.280 has also stuck very closely to a textual interpretation of 0:19:39.320 --> 0:19:42.879 the statutes that they're analyzing, and here in the decision, 0:19:43.480 --> 0:19:46.520 the justices seem to all fall on the same side 0:19:46.520 --> 0:19:52.720 of essentially saying this law the way it's written Sarbanzoxley, 0:19:52.800 --> 0:19:55.959 the way that it's written. There's no reading into this 0:19:56.240 --> 0:20:02.480 of retaliatory intent being a clear element. Rather, the burden 0:20:02.520 --> 0:20:06.560 shifting framework that they have for bringing a claim, proving 0:20:06.600 --> 0:20:09.520 that retaliation was a part of it, and then giving 0:20:09.560 --> 0:20:12.720 the defendant an opportunity to show that there were many 0:20:12.760 --> 0:20:17.080 other reasons why that individual was terminated is the proper 0:20:17.480 --> 0:20:22.120 sort of textual interpretation of this law, and that's where 0:20:22.119 --> 0:20:25.720 they ultimately came down. So yes, I think it's somewhat 0:20:25.880 --> 0:20:29.399 surprising that they're so business oriented, But I think this 0:20:29.480 --> 0:20:32.080 Court has also shown that they will take a look 0:20:32.119 --> 0:20:36.119 at a statute and not read anything else into it 0:20:36.200 --> 0:20:39.359 that wasn't explicitly outlined by Congress. 0:20:39.640 --> 0:20:43.000 The Second Circuit, which is the circuit that handles so 0:20:43.080 --> 0:20:47.800 many securities cases and cases involving business Wall Street, where 0:20:47.800 --> 0:20:50.680 did it come up with that standard? If it's nowhere 0:20:50.720 --> 0:20:52.000 in the statute. 0:20:52.400 --> 0:20:57.040 I think that it was a matter of time and litigation. Obviously, 0:20:57.080 --> 0:21:02.640 the jurisprudence was lending itself in that and to act itself. 0:21:02.680 --> 0:21:08.120 You could read into it that the retaliatory intent and 0:21:08.160 --> 0:21:12.600 the retaliatory Act is a pretty close to nexus between 0:21:13.200 --> 0:21:18.119 the two that blended itself into jury instructions that you 0:21:18.240 --> 0:21:22.359 have to show they had this type of intent, retaliatory 0:21:22.400 --> 0:21:26.719 intent in order to have an adverse finding against them. Well, 0:21:26.760 --> 0:21:28.600 the court is saying here is just a little bit 0:21:29.880 --> 0:21:33.560 more nuanced, is saying, the plaintiff has to show that 0:21:33.640 --> 0:21:37.480 retaliation at least in part led to the decision to 0:21:37.520 --> 0:21:42.840 the employer terminating them. The retaliatory intent, I think just 0:21:42.880 --> 0:21:47.600 became part of a jury instruction to sort of make 0:21:47.640 --> 0:21:51.399 that concept more clear. The Supreme Court felt, Okay, this 0:21:51.520 --> 0:21:53.800 was a step too far. This is an intent that 0:21:54.000 --> 0:21:54.920 wasn't a part of the law. 0:21:55.560 --> 0:21:59.080 So now employers will have to come up with proof 0:21:59.200 --> 0:22:01.359 that it wasn't retaliation. 0:22:01.640 --> 0:22:05.040 Absolutely, and they will have to closely document it, Especially 0:22:05.119 --> 0:22:08.159 in cases where there's a whistleblower, they will have to 0:22:08.560 --> 0:22:12.160 very closely document what occurred. And the key in these 0:22:12.240 --> 0:22:17.600 cases are the time period between when the whistleblower takes 0:22:17.600 --> 0:22:20.760 the action right to report that there was something until 0:22:20.760 --> 0:22:23.480 we're going on, or that there were some issues happening 0:22:23.520 --> 0:22:27.399 at the company and the time when they get terminated. 0:22:27.840 --> 0:22:31.439 The shorter that time period is typically the harder it 0:22:31.520 --> 0:22:35.680 will be to prove as an employer that this action 0:22:35.920 --> 0:22:40.560 was taken independent of what the whistleblower's conduct was. The 0:22:40.640 --> 0:22:44.159 longer that time period, the more chance you have to 0:22:44.200 --> 0:22:48.000 build a record and closely document. But I'm sure that 0:22:48.160 --> 0:22:51.480 across Wall Street all the major banks are now anice. 0:22:51.600 --> 0:22:54.520 That someone makes a whistleblower complaint and they end up 0:22:54.640 --> 0:22:59.760 you're considering letting them go, you better very closely document 0:23:00.280 --> 0:23:02.960 the reasons why, because, as you stated earlier, this was 0:23:03.000 --> 0:23:06.760 a fairly sizable verdict and award, and what's the blower 0:23:06.880 --> 0:23:11.199 action happened quite often. The SEC has a robust whistle 0:23:11.200 --> 0:23:15.199 blowers program, and internally all the banks are required to 0:23:15.200 --> 0:23:18.679 have some level of compliance and HR to allow people 0:23:18.760 --> 0:23:22.199 to have that outlet to sort of police themselves. So 0:23:22.320 --> 0:23:26.200 I imagine now in later this decision, the General Counsel 0:23:26.240 --> 0:23:28.639 of banks are getting together and putting a framework in 0:23:28.720 --> 0:23:33.399 place for how they're going to now document even further 0:23:33.440 --> 0:23:37.359 than they've done before. Employees that blow the whistle, they 0:23:37.400 --> 0:23:40.040 are going to be terminated. There has to be a 0:23:40.119 --> 0:23:43.760 process in place for what's going to happen, because they'll 0:23:44.080 --> 0:23:45.840 need to mitigate a lot of risk here, a lot 0:23:45.840 --> 0:23:46.640 of potential risk. 0:23:47.040 --> 0:23:49.480 And do you think it might lead to more settlements 0:23:49.600 --> 0:23:50.800 as well? 0:23:50.840 --> 0:23:55.280 Get a lot of inbound inquiries from individuals that were 0:23:55.640 --> 0:23:59.639 fired from brokerage firms right fired from banks and it 0:24:00.160 --> 0:24:04.119 follows the same story. They reported something to HR and 0:24:04.160 --> 0:24:08.040