Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
Speaker 2: I was praised to see he reached the firm conclusion
Speaker 2: that no charges should be brought against me in this case.
Speaker 2: This was an exhaustive investigation going back more than forty years.
Speaker 1: Special Counsel Robert Hurd did not charge President Joe Biden
Speaker 1: after finding he knowingly stored and disclosed classified documents in
Speaker 1: unsecured locations at his homes in Virginia and Delaware, concluding
Speaker 1: that the evidence did not establish Biden's guilt beyond a
Speaker 1: reasonable doubt. And if the four hundred page report had
Speaker 1: stopped with those legal conclusions, it probably would have been
Speaker 1: the end of the matter. But the Special Council included
Speaker 1: what many Democrats see as gratuitous swipes at Biden's memory,
Speaker 1: in particular saying quote, we have also considered that at trial,
Speaker 1: mister Biden would likely present himself to a jury as
Speaker 1: he did during our interview of him, as a sympathetic,
Speaker 1: well meaning elderly man with a poor memory.
Speaker 2: My memory, take a look at what I've done since
Speaker 2: I become president. None of you thought I could pass
Speaker 2: any of the things I got passed how'd that happen?
Speaker 1: Of course, former President Donald Trump is facing criminal charges
Speaker 1: for his mishandling of classified documents, and he called for
Speaker 1: the charges against him to be dropped as well. If
Speaker 1: Biden is not going to be charged, he said, that's
Speaker 1: up to them.
Speaker 2: You know. Look, if he's not going to be charged,
Speaker 2: that's up to them.
Speaker 3: But then I should not be charged.
Speaker 1: My guest is national security expert Brad Moss, a partner
Speaker 1: at Mark Zaid. So, Brad, did Biden have classified documents
Speaker 1: about the Afghanistan war? Is that basically it? And what
Speaker 1: classified ranking do they have?
Speaker 3: So the records that, as far as I understand, were
Speaker 3: found could certainly have implicated very sensitive information in terms
Speaker 3: of US government defense policy and true strategy, things along
Speaker 3: those lines. And as far as we can tell, at
Speaker 3: least some of the records that were found between the
Speaker 3: Biden House and then in the different facilities were classified
Speaker 3: up to top secret. So it's not as if this
Speaker 3: was not legitimately sensitive classified information. They never should have
Speaker 3: been any of those places. They always should have been
Speaker 3: returned to a proper classified facility, and the President should
Speaker 3: be a little bit ashamed for that. But in terms
Speaker 3: of the substance of what these documents appeared to have been,
Speaker 3: particularly from his time as vice president. It appears to
Speaker 3: be things that he personally created, but then you know,
Speaker 3: quite possibly not realizing the classification rules because he never
Speaker 3: worked in the executive branch as anything other than as
Speaker 3: vice president. He took them home with him, and at
Speaker 3: the time he probably could because the government would have
Speaker 3: covered with proper facilities while he was vice president. But
Speaker 3: once that changed, it wasn't properly returned to storage the
Speaker 3: way it was supposed to be. It was things like
Speaker 3: a memo he authored or brought Obama when Joe Biden
Speaker 3: was Vice president and Obama was president. It was handwritten
Speaker 3: note that Biden took based off classified documents. Those should
Speaker 3: never be removed from a classified storage facility. The fact
Speaker 3: they were is embarrassing.
Speaker 1: He did tell a ghost writer that he had just
Speaker 1: found all this classified stuff downstairs and that some of
Speaker 1: what he told him may be classified, so be careful.
Speaker 1: So does that show that he knew that he had
Speaker 1: classified documents?
Speaker 3: So this kind of addressed a lot in the Special
Speaker 3: Council's report. The only evidence that Joe Biden was aware
Speaker 3: that documents he still had after leaving the vice presidency
Speaker 3: were classified and were in his personal possession. Are those
Speaker 3: eight words, he uttered to the ghost writer of I
Speaker 3: just found and classified stuff in the attic or the basement,
Speaker 3: whatever it was.
Speaker 4: That's it.
Speaker 3: The Special Council could not find any other evidence, from witnesses,
Speaker 3: from documentation, anything to corroborate the idea that Biden actually
Speaker 3: found something in twenty seventeen, that the documents were in
Speaker 3: them fact classified, that they were in fact the same
Speaker 3: documents that were ultimately recovered. And so that became part
Speaker 3: of the problem was there was no meat on that bone.
Speaker 3: It could have been nothing more on an erroneous comment
Speaker 3: by President Biden that was not actually based on actual
Speaker 3: classified documents. They couldn't find any proof to substantiate that remark.
Speaker 3: And in terms of what Joe Biden said to the
Speaker 3: ghostwriter about whether or not the information he was providing
Speaker 3: could be classified, the dirtiest but most openly known secret
Speaker 3: within the US government is that when former government officials
Speaker 3: go and write their books, none of him write these
Speaker 3: things themselves. They all have ghostwriters. They all spill secrets
Speaker 3: to the ghostwriters. They're not supposed to do it, but
Speaker 3: everybody does this, and the US government kind of says,
Speaker 3: we'll let you go with that, so long as you know,
Speaker 3: the books themselves ultimately get screened with classified information.
Speaker 1: The conclusion was that Biden wilfully retained and disclosed classified materials,
Speaker 1: but her couldn't prove that corex.
Speaker 3: He couldn't prove that he had wilfully done it in
Speaker 3: the sense that Biden was ever truly aware that there
Speaker 3: was classified documents still in his possession post Obama administration.
Speaker 3: The only evidence were those eight words to the ghostwriter.
Speaker 3: There was no other evidence of it. And even if
Speaker 3: they could have proven that, and this is what a
Speaker 3: special Council messed up the legal analysis. Even if they
Speaker 3: could prove intent deply by the fact that the documents
Speaker 3: were there, the Espionage Act provision, which the same one
Speaker 3: that's being used against Donald Trump, has an additional caveat.
Speaker 3: You have to also demonstrate a refusal by the individual
Speaker 3: to return the documents once confronted about it by the
Speaker 3: US government. That obstructive act is what got Donald Trump
Speaker 3: in trouble. That he played games and tried to conceal things.
Speaker 3: According to the indictment against him, that did not happen
Speaker 3: with Joe Biden when he was confronted, they turned the
Speaker 3: documents over like they're supposed to it. In those circumstances,
Speaker 3: the government virtually never pursues criminal charges.
Speaker 1: And in fact, this hasn't gotten as much media attention
Speaker 1: as the characterization of Biden's memory. But the Special Council
Speaker 1: sets out the difference between Biden's case and Trump's case.
Speaker 3: Yeah, and that was the one I would say silver
Speaker 3: lining to how the Special Council approach to the report
Speaker 3: was to make clear and delineate those distinctions. But by
Speaker 3: going into these other extraneous and irrelevant remarks about Biden's memory,
Speaker 3: which would have no bearing at all on the government's
Speaker 3: ability to prove their case, it inserted a political element
Speaker 3: to this report that was completely improper and just raise
Speaker 3: memories for so many of James Comy in July of
Speaker 3: twenty sixteen, making his irrelevant and extringuous remarks about Hillary Clinton.
Speaker 3: They couldn't bring charges, but they decided to launch a
Speaker 3: political attack.
Speaker 1: Yeah, he said. We have also considered that at trial,
Speaker 1: mister Biden would likely present himself to a jury as
Speaker 1: he did during our interview of him, as a sympathetic,
Speaker 1: well meaning elderly man with a poor memory. So, Brad,
Speaker 1: how many times have you heard witnesses and deposition say
Speaker 1: I don't recall, I don't remember, or words.
Speaker 3: To that effect more times that I can count, And
Speaker 3: I can remember Donald Trump doing it to mister Muller
Speaker 3: in writing, because remember Trump never actually stacked for a deposition.
Speaker 3: He admitted responses to written questions he had I do
Speaker 3: not recall in there a bunch of times. Marjorie Taylor
Speaker 3: Green on the stand in her disqualification trial, constantly said
Speaker 3: I do not recall. It is a common thing. People
Speaker 3: don't remember these kinds of details, especially years after the fact.
Speaker 3: But what was important from a legal standpoint, and this
Speaker 3: is again where the Special Council got it wrong, is
Speaker 3: that whether or not Biden could prove he had a
Speaker 3: poor memory would do nothing to save him as a
Speaker 3: legal matter in terms of criminal culpability. Putting aside that
Speaker 3: he would never testify, just as Donald Trump's not going
Speaker 3: to testify in any of his trials, isn't entirely irrelevant
Speaker 3: to the government's case and their ability to demonstrate criminal culpability.
Speaker 3: The extent to which Joe Biden has a good memory
Speaker 3: in this context.
Speaker 1: And I mean the Justice Department rules and the intent
Speaker 1: is that federal prosecutor should remain sensitive to the privacy
Speaker 1: and reputation interests of uncharged parties.
Speaker 3: But that's correct, that's not the wind here. Yeah, that's
Speaker 3: out the window this point. And this is again when
Speaker 3: I read this executive summary that at the beginning before
Speaker 3: we got to the bigger report. But when I read
Speaker 3: the executive's summary and reading these extraneous remarks, I gotta
Speaker 3: say before it just brought back memories of July twenty sixteen,
Speaker 3: because this is stuff that you were not supposed to
Speaker 3: do at the Justice Department. You don't engage in these
Speaker 3: extraneous political attacks on someone you've decided not to charge.
Speaker 3: You know, Robert Muller's report, for all it's in depth,
Speaker 3: you know details, didn't make those kind of political attacks
Speaker 3: on Donald Trump. Never went to that part because he
Speaker 3: wrote his in line with department procedures and policies. I
Speaker 3: do not believe Special Counsel her adhere to those practices.
Speaker 1: And what could Garland have done? I mean he could
Speaker 1: he have released a summary like Bill Barr did with
Speaker 1: the Muller report, or could he have requested that gratuitous
Speaker 1: information about Biden be edited out.
Speaker 3: Yes, he could have done all those things. He could
Speaker 3: have done, you know, his own executive summary, just like
Speaker 3: Bill Barr did. He would have had complete authority to
Speaker 3: do it in discretion.
Speaker 4: On the regulations.
Speaker 3: Merrick Garland is far more of an institutionalist than Bill
Speaker 3: Barr was, and certainly then Donald Trump was. And Marrick
Speaker 3: Garland said transparency is the best avenue here. Just put
Speaker 3: it out. That was his choice. He's going to have
Speaker 3: to live with that. In terms of the political rapification.
Speaker 1: I mean, does this point to you know the problem
Speaker 1: with special counsels? I mean here he conducted one hundred
Speaker 1: and seventy three interviews, one hundred and forty seven witnesses,
Speaker 1: including Biden, collected millions of documents to compile the report,
Speaker 1: and there is enormous pressure for these special council to
Speaker 1: bring charges.
Speaker 3: Yeah, and this is where we've unfortunately gotten to the
Speaker 3: point where the Special Council regulations have been corrupted the
Speaker 3: way the original Independent Council statue passed by Congress got corrupted.
Speaker 3: When you create the sort of you know, independent positions,
Speaker 3: you give them these budgets and you give them what
Speaker 3: is ultimately in all these cases a politically charged legal question.
Speaker 3: They feel it necessary to justify their work. The only
Speaker 3: person who got a very simple and sweet investigation was
Speaker 3: Mike Penn and that's because there ultimately was no special counsel.
Speaker 3: It was handled by a US Attorney's office. But for
Speaker 3: Joe Biden, for Donald Trump, with Durham investigation as well,
Speaker 3: in terms of Hillary Clinton and administration, it's always these
Speaker 3: special councils. Now everything requires a special council, and inevitably
Speaker 3: they seek to find a way to justify their expense,
Speaker 3: and they ultimately, in some cases start bringing cases that
Speaker 3: don't succeed, particularly a trial. We saw that with Durham probe,
Speaker 3: two different not guilty verdicts a trial, they couldn't prove
Speaker 3: their original premise. We saw that with Special Counsel Herd
Speaker 3: does all this stuff, declines to bring charges appropriately in
Speaker 3: my view, against Joe Biden, but then writes this, you know,
Speaker 3: political charge summary. This is a problem we did not
Speaker 3: anticipate with the special council regulation.
Speaker 1: And now I suppose the next question is going to
Speaker 1: be whether there will be a release of all or
Speaker 1: part of the questioning of Joe Biden. By the special counsel.
Speaker 1: More to come. Thanks so much, brad. That's Bradley Moss
Speaker 1: of Mark Zaid. In other legal news today, as expected,
Speaker 1: Donald Trump is asking the Supreme Court to keep his
Speaker 1: criminal trial for trying to overturn the twenty twenty election
Speaker 1: on hold while he appeals a ruling from the d
Speaker 1: C Circuit Court that rejected his bid for immunity from prosecution.
Speaker 1: Trump is ask the Justices to give him the option
Speaker 1: of seeking review from an on bank panel of the
Speaker 1: DC Circuit rather than appealing directly to the Supreme Court.
Speaker 1: Coming up next, in a defeat for Ubs, the Supreme
Speaker 1: Court makes it easier for whistleblowers. This is bloomberg in
Speaker 1: a win for whistleblowers and a loss for Ubs. The
Speaker 1: Supreme Court has made it easier for whistleblowers to win
Speaker 1: suits claiming retaliation under a federal investor protection law. The
Speaker 1: Justices reinstated a nine hundred thousand dollars jury verdict won
Speaker 1: by a fired Ubs Group research strategist. In a unanimous decision.
Speaker 1: The Justice is found that a whistleblower is not required
Speaker 1: to make a showing that the employer acted with retaliatory intent.
Speaker 1: Why well, simply that requirement doesn't square with the language
Speaker 1: of the two thousand and two Sarbanes Oxley Act. As
Speaker 1: Justice Neil Gore such emphasized during oral arguments as he
Speaker 1: questioned ubbs's attorney, Eugene Scalia, the son of the late
Speaker 1: Justice Antonin Scalia.
Speaker 4: Whistle or retaliation.
Speaker 2: I just don't see those words in this statute.
Speaker 4: I see discrimination in the statute, and I see whistle
Speaker 4: blowing activity, and I know there's a causation requirement, but
Speaker 4: I don't see the retaliation in the statute yet. So
Speaker 4: help me, help. You're asking me to read things into
Speaker 4: statues that aren't there. Aren't you.
Speaker 1: Counsel joining me is John George Arris, a partner at
Speaker 1: Scarincy Holland Beck. First tell us about the facts of
Speaker 1: the case itself.
Speaker 5: So, we have an employee of UBS that was fired
Speaker 5: in connection with a complaint that he had made to
Speaker 5: HR regarding two UBS trading desk employees who were essentially
Speaker 5: pressuring him to put a flint on his reporting. This individual,
Speaker 5: the person that was terminated from UBS, was producing research
Speaker 5: reports and it was a requirement under the Securities and
Speaker 5: Exchange Commissions Framework that these reports be independent. So the
Speaker 5: individual here thought he was under pressure, made a complaint
Speaker 5: within UBS internally, and then shortly thereafter was terminated, which
Speaker 5: then led to the lawsuit under Starbaine's Oxley for a
Speaker 5: claim that this was a retaliatory adverse employment action, which
Speaker 5: led us eventually to the Supreme Court.
Speaker 1: So the jury rule for him, but then the second
Speaker 1: Circuit reversed. Explain why the second Circuit reversed.
Speaker 5: So the essential issue in this case is what a
Speaker 5: plaintiff has to prove verse what the defendant UBS would
Speaker 5: have to counter with. The reason the second Circuit reversed
Speaker 5: the case is because at the district court level, the
Speaker 5: court did not instruct the jury that plaintiffs, the employee
Speaker 5: that was fired, was required to show that his employer
Speaker 5: acted with retaliatory intent. This was an element that the
Speaker 5: Second Circuit felt Congress had put into the law and
Speaker 5: that he was required as a plaintiff to prove that.
Speaker 5: By not giving the jury that instruction, the Second Circuit
Speaker 5: said that the district court had aired and then reversed
Speaker 5: the case on this basis of retaliatory intent being a
Speaker 5: key element of the claim, which then later brings us
Speaker 5: to the Supreme Court. Where that issue was then litigated.
Speaker 1: So was there a split in the circuits about whether
Speaker 1: you need retaliatory intent or not exactly?
Speaker 5: And that's what led to the appeal to the Supreme Court.
Speaker 5: That decision created a split, and therefore we needed clarity
Speaker 5: on the wall for what a plaintiff was required to
Speaker 5: show in order to make this claim a retaliatory employment claim.
Speaker 1: All right, So what did this Supreme Court say?
Speaker 5: The Supreme Court came down in a nine to zero
Speaker 5: unanimous decision ruling in favor of the plaintiffs, and essentially
Speaker 5: the whole thing. It's very simple. The court held that
Speaker 5: this whistle blower the employee, must prove that their activity
Speaker 5: was a contributing factor in the employee's unfavorable personnel action,
Speaker 5: but need not prove that the employer acted with retaliatory intent.
Speaker 5: So that's the key. The Supreme Court came back and said,
Speaker 5: retaliatory intent is not part of this. All you have
Speaker 5: to do is show as a plaintiff that the retaliatory
Speaker 5: action was in connection with the protected whistleblower activity. Here
Speaker 5: it was raising the fact that he was put under
Speaker 5: pressure to produce reports that weren't independent. If the planeff
Speaker 5: is able to prove that retaliation at least was a
Speaker 5: part of the termination, then the burden shifts to the employer.
Speaker 5: In this regard to Ubs, we then has to demonstrate
Speaker 5: by clear and convincing evidence that know, the report to
Speaker 5: HR the whistle Blowing Act had nothing to do with
Speaker 5: the retaliation. And specifically here you'd be a stated the
Speaker 5: business had lost millions of dollars and that this employee
Speaker 5: was dispensable because the work that he was producing these
Speaker 5: research reports weren't necessary to UBS's business. That was their
Speaker 5: attempt to try to say it wasn't retaliatory. But that's
Speaker 5: the burden shifting mechanism. And the way the court came
Speaker 5: down at the end of the day is they eliminated
Speaker 5: this retaliatory intent portion of it, saying that it wasn't
Speaker 5: really part of Congress's intent and it would undermine the
Speaker 5: burden shifting framework of bringing a and then attempting to rebut.
Speaker 1: It it seems like this really lowers the burden for
Speaker 1: plaintiffs in these kinds of cases. I mean, will it
Speaker 1: make it much easier for them to prove their case.
Speaker 5: I believe that this would motivate individuals that were terminated
Speaker 5: after a whistleblower complaint to bring more claims, because this
Speaker 5: retaliatory intent in and of itself as an element is
Speaker 5: hard to get to because you're going to someone's mindset
Speaker 5: and that may be very difficult to break down. So yes,
Speaker 5: I do think that ultimately the Supreme Court has opened
Speaker 5: the door to more of these cases. And there's still
Speaker 5: a burden. You still have to prove, at least by
Speaker 5: a preponderance of the evidence that you were terminated, at
Speaker 5: least in part as a result of your protected activity
Speaker 5: making a claim to HR whistle blowing in some way,
Speaker 5: shape or form. So it's still there, it's just not
Speaker 5: that extra step of retaliatory in So I would imagine
Speaker 5: that we will see an uptick in these types of cases.
Speaker 1: And several business groups, including the US Chamber of Commerce,
Speaker 1: had asked the Supreme Court to side with UBS, and
Speaker 1: this is a Supreme Court that is very much business oriented.
Speaker 1: So was this a surprising decision.
Speaker 5: It was somewhat of a surprising decision, especially that it
Speaker 5: came down nine to zero and it was drafted by
Speaker 5: Justice Sotomayor. The opinion. It is somewhat surprising that this
Speaker 5: is where they landed. But I think this Supreme Court
Speaker 5: has also stuck very closely to a textual interpretation of
Speaker 5: the statutes that they're analyzing, and here in the decision,
Speaker 5: the justices seem to all fall on the same side
Speaker 5: of essentially saying this law the way it's written Sarbanzoxley,
Speaker 5: the way that it's written. There's no reading into this
Speaker 5: of retaliatory intent being a clear element. Rather, the burden
Speaker 5: shifting framework that they have for bringing a claim, proving
Speaker 5: that retaliation was a part of it, and then giving
Speaker 5: the defendant an opportunity to show that there were many
Speaker 5: other reasons why that individual was terminated is the proper
Speaker 5: sort of textual interpretation of this law, and that's where
Speaker 5: they ultimately came down. So yes, I think it's somewhat
Speaker 5: surprising that they're so business oriented, But I think this
Speaker 5: Court has also shown that they will take a look
Speaker 5: at a statute and not read anything else into it
Speaker 5: that wasn't explicitly outlined by Congress.
Speaker 1: The Second Circuit, which is the circuit that handles so
Speaker 1: many securities cases and cases involving business Wall Street, where
Speaker 1: did it come up with that standard? If it's nowhere
Speaker 1: in the statute.
Speaker 5: I think that it was a matter of time and litigation. Obviously,
Speaker 5: the jurisprudence was lending itself in that and to act itself.
Speaker 5: You could read into it that the retaliatory intent and
Speaker 5: the retaliatory Act is a pretty close to nexus between
Speaker 5: the two that blended itself into jury instructions that you
Speaker 5: have to show they had this type of intent, retaliatory
Speaker 5: intent in order to have an adverse finding against them. Well,
Speaker 5: the court is saying here is just a little bit
Speaker 5: more nuanced, is saying, the plaintiff has to show that
Speaker 5: retaliation at least in part led to the decision to
Speaker 5: the employer terminating them. The retaliatory intent, I think just
Speaker 5: became part of a jury instruction to sort of make
Speaker 5: that concept more clear. The Supreme Court felt, Okay, this
Speaker 5: was a step too far. This is an intent that
Speaker 5: wasn't a part of the law.
Speaker 1: So now employers will have to come up with proof
Speaker 1: that it wasn't retaliation.
Speaker 5: Absolutely, and they will have to closely document it, Especially
Speaker 5: in cases where there's a whistleblower, they will have to
Speaker 5: very closely document what occurred. And the key in these
Speaker 5: cases are the time period between when the whistleblower takes
Speaker 5: the action right to report that there was something until
Speaker 5: we're going on, or that there were some issues happening
Speaker 5: at the company and the time when they get terminated.
Speaker 5: The shorter that time period is typically the harder it
Speaker 5: will be to prove as an employer that this action
Speaker 5: was taken independent of what the whistleblower's conduct was. The
Speaker 5: longer that time period, the more chance you have to
Speaker 5: build a record and closely document. But I'm sure that
Speaker 5: across Wall Street all the major banks are now anice.
Speaker 5: That someone makes a whistleblower complaint and they end up
Speaker 5: you're considering letting them go, you better very closely document
Speaker 5: the reasons why, because, as you stated earlier, this was
Speaker 5: a fairly sizable verdict and award, and what's the blower
Speaker 5: action happened quite often. The SEC has a robust whistle
Speaker 5: blowers program, and internally all the banks are required to
Speaker 5: have some level of compliance and HR to allow people
Speaker 5: to have that outlet to sort of police themselves. So
Speaker 5: I imagine now in later this decision, the General Counsel
Speaker 5: of banks are getting together and putting a framework in
Speaker 5: place for how they're going to now document even further
Speaker 5: than they've done before. Employees that blow the whistle, they
Speaker 5: are going to be terminated. There has to be a
Speaker 5: process in place for what's going to happen, because they'll
Speaker 5: need to mitigate a lot of risk here, a lot
Speaker 5: of potential risk.
Speaker 1: And do you think it might lead to more settlements
Speaker 1: as well?
Speaker 5: Get a lot of inbound inquiries from individuals that were
Speaker 5: fired from brokerage firms right fired from banks and it
Speaker 5: follows the same story. They reported something to HR and
Speaker 5: then they're terminated not that long after. This case opens
Speaker 5: up the gates through me in a lot of ways.
Speaker 5: I mean, I'll be setting to this case in every
Speaker 5: demand letter I write to these big One of the
Speaker 5: first things that I say say, hey, if you want
Speaker 5: to litigate this, just so you're aware, you know, my
Speaker 5: burden just got a lot lower, and here burden's got
Speaker 5: a lot higher. So why don't we have a conversation
Speaker 5: before we get to that point.
Speaker 1: It's interesting to hear the real world effect of these
Speaker 1: Supreme Court decisions. Thanks so much, John George. That's John George. Aarris,
Speaker 1: Obscurency Holland Beck coming up next on The Bloomberg Lawn Show.
Speaker 1: We're going to talk to the principal architect of the
Speaker 1: SEC's whistleblower program. Remember, you can always get the latest
Speaker 1: legal news by listening to our Bloomberg Lawn podcast. You
Speaker 1: can find them wherever you get your favorite podcasts. I'm
Speaker 1: June Grosso and you're listening to Bloomberg. This is Bloomberg
Speaker 1: Law with June Russo from Bloombird Radio. The Supreme Court
Speaker 1: has made it easier for whistleblowers to win suits claiming retaliation.
Speaker 1: In a loss for UBS reinstating a nine hundred thousand
Speaker 1: dollars jury verdict won by a fired research strategist, the justices,
Speaker 1: voting unanimously against UBS, said the Sarbanes Oxley Act doesn't
Speaker 1: require whistleblowers to prove they were the victims of intentional retaliation.
Speaker 1: Joining me now is Sean mckessey. He was the first
Speaker 1: chief of the SEC Whistleblower Office and the principal architect
Speaker 1: of the whistleblower program. He's now a partner at Phillips
Speaker 1: and Cohen. Were you surprised that this business friendly Supreme
Speaker 1: Court came down with this unanimous decision?
Speaker 4: Yes, I was surprised. You know, it's interesting I was
Speaker 4: thinking about this. We have now two whistleblower related cases,
Speaker 4: both of which were deciding unanimously. So it appears that
Speaker 4: somehow the Supreme Court able find common grounds when it
Speaker 4: comes to whistleblower related cases. So if you may remember,
Speaker 4: in Digital Realty, the court ruled nine to zero that
Speaker 4: a person needs to report to the SEC to be
Speaker 4: protected under the anti retaliation provisions of dot Frank. And
Speaker 4: you know, those of us on the whistleblowers side, I
Speaker 4: think were hopeful that they would be more fertile ground
Speaker 4: for understanding that whistleblowers should be protected when the report
Speaker 4: quote unquote only to their employers and not to the SEC.
Speaker 4: And most employers said they would prefer reporting internally and
Speaker 4: not you know, quote unquote running to the SEC. And
Speaker 4: that's basically where that court came down. And now fast
Speaker 4: forward a case under a starvaysox Lee, which preceded DoD Frank.
Speaker 4: Interestingly enough, retaliation is on the table again, and here unanimously,
Speaker 4: the decision is made to favor whistle blowers in striking
Speaker 4: down a ruling that you need to prove that an
Speaker 4: employer intended to retaliate in order to succeed under a
Speaker 4: Starvaysoxley retaliation claims. You've got two retaliation cases, one going
Speaker 4: for the corporate side, one going for the whistleblower side,
Speaker 4: both unanimous, and it is of interest in that, at
Speaker 4: least stereotypically, you think there's a certain factor of the
Speaker 4: court that is quote unquote more business friendly and might
Speaker 4: therefore be more antagonistic potentially to whistleblowers, and another faction
Speaker 4: that would be more favorable. And in two cases they
Speaker 4: came down unanimously and interestingly, one was very pro whistle
Speaker 4: blower and one, in my view, was anti whistle blower.
Speaker 4: But I think if you look at a strict reading
Speaker 4: of the of the statute, both of them in some
Speaker 4: ways almost had to be unanimous, because you either read
Speaker 4: their statute one way or you read it the other.
Speaker 4: In both instances they agreed on how to read in
Speaker 4: this particular instance Starving vastly, and in the Digital Realty
Speaker 4: case it was the dog Frank statue. But you know,
Speaker 4: ultimately a favorable development for those of us who who
Speaker 4: represent whistle blowers.
Speaker 1: How difficult is it for an employee to prove that
Speaker 1: an employ eloyer acted with retaliatory intent.
Speaker 4: Retaliation cases, by their nature are circumstantial. Very rarely do
Speaker 4: you have a smoking gun where somebody goes to an
Speaker 4: employee and says, we're firing you because you reported this wrongdoing,
Speaker 4: either internally or to the SEC. That is very very rare.
Speaker 4: I say, I've never seen it, And so you have
Speaker 4: to put together a case that shows chronology is usually
Speaker 4: the best way to put it. This employee had great reviews,
Speaker 4: great reviews, great reviews. Company finds out wrongdoings reported. All
Speaker 4: of a sudden, the employee's reviews go down the tank,
Speaker 4: and conveniently, either the whistleblow or is fired or marginalized
Speaker 4: or moved off of his or her primary responsibility. That
Speaker 4: and of itself is a difficult case to put together. Imagine,
Speaker 4: on top of that, you have to prove that the
Speaker 4: employer had a mental state of intentionality in order to
Speaker 4: succeed on retaliation. And you know, I don't know about you,
Speaker 4: but I think it's really hard to read anybody's intentions,
Speaker 4: prove anybody's intention You know, I was thinking you just
Speaker 4: called me, and I would say you intentionally called me.
Speaker 4: And the evidence I have is that you picked up
Speaker 4: the phone and you called me but if you came
Speaker 4: back to me and said, I'm sorry that was a
Speaker 4: butt dial, I can't prove that you didn't intend to
Speaker 4: call me, because all I know is that you picked
Speaker 4: up the phone and now I'm talking to you. And
Speaker 4: you know it's a loose analogy, but imagine if you're
Speaker 4: an employee who has been fired and you have all
Speaker 4: the circumstance great review, great review, great review, wrongdoing reported fired, Okay,
Speaker 4: that's great, But can you prove that they intended to
Speaker 4: fire you for the reporting as opposed to something else?
Speaker 4: And there's always something else, right, Employers always come up with,
Speaker 4: you know, you're late with your time sheets, you pudge
Speaker 4: an expense account, Well it's a riff. You know, we're
Speaker 4: cutting down costs, and you're just one of four or
Speaker 4: five people getting fired. So there's always something else that
Speaker 4: an employer can either turn to or send in a
Speaker 4: fabricate And I don't say that lightly, but it has
Speaker 4: happened that employers have come up with excuses for firing
Speaker 4: after the fact to fit the story. So a very
Speaker 4: favorable outcome in the UBS case, and interesting that all
Speaker 4: nine justices came down, you know, in a way that
Speaker 4: tips the scales in favor of whistleblowers under Starbank's Oxley,
Speaker 4: when under Dodd Frank they tipped the scales in the
Speaker 4: opposite direction.
Speaker 1: Even during the oral arguments, Justice Corset said, I don't
Speaker 1: see retaliation in the statute. So is the difference that
Speaker 1: Sarbanes Oxley and Dodd Frank have different language.
Speaker 4: Yes, And the interesting thing for those of us on
Speaker 4: the side of whistleblowers is in Dodd Frank, everybody knows.
Speaker 4: And this was the argument that was made that the
Speaker 4: Court unanimously rejected because the language in the statute is
Speaker 4: very specific and defied a whistleblower as someone who reports
Speaker 4: wrongdoing to the Commission. And later in the statute it
Speaker 4: talks about all these enhanced protections for whistleblowers. And the
Speaker 4: Whistleblower Bar's view is that clearly Congress intended to enhance
Speaker 4: retaliation protections from Starbanks, Oxley Dodd Frank. And one of
Speaker 4: the ways they did that was to have all these
Speaker 4: enhanced measures. You know, they increase the penalties from one
Speaker 4: time back pay to two and a half back pay,
Speaker 4: they increase the factual limitations in god Frank. Ultimately all
Speaker 4: of that got stripped away because in the definition section
Speaker 4: it said a person retaliates only if they report wrongdoing
Speaker 4: to the Commission, and by a nine to zero vote,
Speaker 4: the Commissioner said that language and of itself drives the decision,
Speaker 4: starving thos leave a little bit less direct in terms
Speaker 4: of how it defines retaliation and how do you perfect
Speaker 4: your status, And it doesn't have specific language about needing
Speaker 4: to report something to a specific entity to be entitled
Speaker 4: to these protections. It's more a directive to employers as
Speaker 4: opposed to a definition of employees. And it says in
Speaker 4: starbeign Exocy, no person shall take any action to discriminate
Speaker 4: against someone who reports wrongdoing. So in that ways it's
Speaker 4: prescriptive in some ways, whereas in god Frank it was
Speaker 4: pointed to the whistleblower and says, if you want to
Speaker 4: be whistlebler, you have to do the following things, one
Speaker 4: of which is reports to the SEC. And so that
Speaker 4: distinction allows starvayk Doxy to be a little bit more
Speaker 4: fluid and how it determines the pool of people who
Speaker 4: are entitled to retaliation protection. And you know, in the
Speaker 4: particular case that the circuit courts found you may have
Speaker 4: provided evidence that you will retaliate against, but you fall
Speaker 4: short and that you cannot prove that there was intentionality
Speaker 4: behind the conduct, that they intentionally wanted to retaliate against you,
Speaker 4: as opposed to a more easy standard to meet, which
Speaker 4: is it was one of the contributing factors. You know,
Speaker 4: As I said, there's always going to be a number
Speaker 4: of reasons that an employee can points to as to
Speaker 4: why a certain action is taken visa via employee. But
Speaker 4: if you add an evidential burden that you have to
Speaker 4: prove that the employer intended to make you feel like
Speaker 4: you retaliate against, that enhances the burden. As I was
Speaker 4: thinking about this, it would almost completely decall the retaliation
Speaker 4: protection of Starving Doctley, because the burden to prove what
Speaker 4: was in somebody's head when they took a certain action
Speaker 4: is virtually impossible to meet absent a specific recorded phone
Speaker 4: call or email, and most sophisticated of people in the
Speaker 4: corporate bar know not to put these things in writing
Speaker 4: in such a way that says, you know, we're firing
Speaker 4: you because we're really bad that you reported this wrongdoing.
Speaker 4: That would basically be the only paradigm for retaliation case.
Speaker 4: If the Circuit Court's opinion was adopted, and to their credit,
Speaker 4: un animously, the Supreme Court rejected that instead starving BOCCY
Speaker 4: wasn't intended to be so strictly defined, and it's prescriptive
Speaker 4: to employers, you shall not take any action because some
Speaker 4: of the wrongdoing without putting it an intentionality requirement that
Speaker 4: the Circuit Court superimposed into it.
Speaker 1: Several business groups, including the US Chamber of Commerce, the
Speaker 1: Securities Industry, and Financial Markets Association, had argued that establishing
Speaker 1: a lower bar for employees would lead to employers being
Speaker 1: hit with a lot more meritless claims.
Speaker 4: Yeah, a common refrain, And I guess I should backtrack
Speaker 4: for a second. I worked for three different companies between
Speaker 4: my stints at the SEC, so I'm not anti corporate America,
Speaker 4: and I understand, you know, certain perspectives that I brought in,
Speaker 4: but it's it's very commonly complained about that. You know,
Speaker 4: anytime the SEC tries to put in protections for whistleblowers, or,
Speaker 4: in the case of dot Frank, build an incentive program
Speaker 4: to incentivize people to come forward, the common refrain is
Speaker 4: and we certainly heard this when in twenty and eleven
Speaker 4: we were putting together rules for the new whistle Bowl
Speaker 4: program under dot Frank. We got a lot of comments like,
Speaker 4: you don't know what you're asking for, SEC. You're going
Speaker 4: to be inundated with a lot of nonsense. You know,
Speaker 4: HR complaints, my boss is a jerk, and it would
Speaker 4: basically overwhelm the SEC's intake systems. And you know, I
Speaker 4: think the SEC was thoughtful about that and try to
Speaker 4: put in rules. You know, you have to sign the
Speaker 4: TCR independalty perjury and it has aspects of if you're
Speaker 4: doing this in bad faith, you could put yourself in jequardy.
Speaker 4: And I think what we found at least, you know,
Speaker 4: certainly had my five and a half years running the
Speaker 4: whistle blower program with the SEC, we were not overwhelmed
Speaker 4: with nonsense. There was a lot of very valuable information
Speaker 4: brought to us about retaliation cases. And the SEC has
Speaker 4: availed itself of its new retaliation jurisdiction to penalize companies
Speaker 4: for retaliation. But I don't think anybody, including the Chamber,
Speaker 4: would argue that it has been an overwhelming landslide of
Speaker 4: retaliation case and the SEC has easily jumped in on
Speaker 4: what that base was a disagreement between an employer and employee.
Speaker 4: They've only taken action for retaliation when it was clear
Speaker 4: via the timeline and via other circumstances that a person
Speaker 4: who was doing a fine job as far as he
Speaker 4: or she knew it comes to the employer's attention that
Speaker 4: ron doing is being investigated, and all of a sudden,
Speaker 4: really bad things start to happen. Those are the kinds
Speaker 4: of cases that you see that the SEC has brought.
Speaker 4: And so I know and I understand that the knee
Speaker 4: jerk reaction whenever a progress of lower rule statue the
Speaker 4: Supreme Court ruling comes down is, oh boy, this is
Speaker 4: going to create you know, a whole groundswell of bad outcomes,
Speaker 4: and the SEC will be overwhelmed. You know, they already
Speaker 4: have limited resources and they're not to be able to
Speaker 4: handle all the nonsense they're going to get, when in fact,
Speaker 4: I don't know that there's any empirical data that backs up.
Speaker 4: You know, I think a lot of gnashing of teeth
Speaker 4: often happens in the hypothetical and then you say, okay,
Speaker 4: show me an example. People are hard pressed to come
Speaker 4: with a definitive example of that actually happens. So while
Speaker 4: I'm sympathetic, and I understand uncertainly is an unhappy development
Speaker 4: for in house council of people who represent companies. Everyone
Speaker 4: loves to have a black and white you know, if
Speaker 4: you do this, you'll stay on the right side of
Speaker 4: a log. If you do that, you'll be on the
Speaker 4: wrong side. But you know that's not the way the
Speaker 4: legal process works. It's certainly not the way compliance works.
Speaker 4: They're always going to be elements of gray, and you know,
Speaker 4: I think the SEC as a track record of not
Speaker 4: chipping into the gray on the wrong side. To invite
Speaker 4: all kinds of nonsensical retaliation claims that they take up
Speaker 4: and advocate on behalf of the worst the law. I
Speaker 4: think you have to look at the data, you know,
Speaker 4: don't look at the complaints or they worry, look at
Speaker 4: what actually happen. And I think if you prepare those
Speaker 4: all of the doomsday scenarios that even the whistleblower program,
Speaker 4: you know, there was a lot of apocalyptic language about
Speaker 4: this is going to destroy eternal compliance and everyone's going
Speaker 4: to run to the SEC, and no one's going to
Speaker 4: be loyal to their companies. We're eleven, twelve years in
Speaker 4: and the data doesn't support all of that Doom's Day rhetoric,
Speaker 4: and I think it's similar to what was being argued
Speaker 4: in connections to starving doctory divisions.
Speaker 1: It's great to see this from the perspective of the
Speaker 1: SEC whistleblower program. Thanks so much, Sean. That's Sean mckessee,
Speaker 1: a partner at Phillips and Cohen. And that's it for
Speaker 1: this edition of the Bloomberg Law Podcast. Remember you can
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Speaker 1: dot com, slash podcast, Slash Law. I'm June Grosso and
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