February 2024 - cypherpunks - lists.cpunks.org

Global Pension Assets Total $55T In 2023, Broker Says
by Gunnar Larson 28 Feb '24

28 Feb '24

Global Pension Assets Total $55T In 2023, Broker Says <https://www.law360.co.uk/financial-services-uk/articles/1807090?nl_pk=a94fc…> By Joel Poultney Global pension assets rose by 11% to reach $55.7 trillion in 2023, according to research published by broker WTW, showing a rebound from weaker economic performance across the previous year. Read full article » <https://www.law360.co.uk/financial-services-uk/articles/1807090?nl_pk=a94fc…> | Save to favorites » <https://www.law360.co.uk/financial-services-uk/articles/1807090?nl_pk=a94fc…>

1 0

Justices Say Social Media Speech Laws Pose 'Land Mines'
by Gunnar Larson 28 Feb '24

28 Feb '24

Justices Say Social Media Speech Laws Pose 'Land Mines' <https://www.law360.com/newyork/articles/1796481?nl_pk=ac5a3855-e47c-4403-be…> By Katie Buehler The U.S. Supreme Court seemed skeptical Monday of the constitutionality of Florida and Texas laws prohibiting social media platforms from removing content or users based on viewpoint, but struggled with whether the still-developing records in the lawsuits challenging the regulations could support a meaningful ruling on platforms' First Amendment rights. Read full article » <https://www.law360.com/newyork/articles/1796481?nl_pk=ac5a3855-e47c-4403-be…> | Save to favorites » <https://www.law360.com/newyork/articles/1796481?nl_pk=ac5a3855-e47c-4403-be…>

1 0

New York State Has Turned Over a Vast Amount of Its Financial Affairs to 5-Count Felon JPMorgan Chase
by Gunnar Larson 28 Feb '24

28 Feb '24

https://wallstreetonparade.com/2024/01/new-york-state-has-turned-over-a-vas… New York State Has Turned Over a Vast Amount of Its Financial Affairs to 5-Count Felon JPMorgan Chase By Pam Martens and Russ Martens: January 10, 2024 ~ New York State Comptroller, Thomas DiNapoli New York State Comptroller, Thomas DiNapoli There’s only one thing more dangerous than the largest bank in the United States, JPMorgan Chase, being charged with (and admitting to) five criminal felony counts by the U.S. Department of Justice since 2014 and a host of other fraud charges by federal regulators. What is more dangerous is having government officials look the other way at this recidivist history of crime at the nation’s largest bank. In May, federal banking regulators allowed JPMorgan Chase to get even bigger, despite its unprecedented crime wave, by handing it the failed First Republic Bank in a sweetheart deal. Yesterday, we learned from online documents that the Comptroller of New York State has turned over a vast amount of the financial affairs of the fourth largest state in the country to this banking house of crime. (See related articles below.) According to a New York State Comptroller website, JPMorgan Chase has 59 contracts with the state with a total current contract amount of $5.2 billion. The contracts include everything from banking services to the purchasing cards for state employees. The New York State Comptroller is Thomas DiNapoli, who has held this no-term-limit position since February 7, 2007 – a span of 17 years. DiNapoli’s job description reads as follows: “The comptroller is the chief financial officer of the state government and the head of the Department of Audit and Control. The comptroller’s responsibilities include managing the state’s pension fund, auditing the spending practices of all state agencies and local governments, reporting on state finances, and serving as the custodian of unclaimed funds.” As it turns out, JPMorgan Chase has a 7-year contract with the Comptroller’s office to serve as the custodian for the securities held in the New York State Common Retirement Fund for state workers. As of September 30, 2023, the Common Retirement Fund had a value of almost a quarter of a trillion dollars, or $246.3 billion to be exact. But the Comptroller does not want the public to know all of the granular details in its contract between JPMorgan Chase and itself. Numerous paragraphs are blacked out in the document. According to the Common Retirement Fund’s Annual Report, JPMorgan Chase – not the Comptroller or the Fund’s auditor – calculates the rate of return for the fund. That return was indicated as “negative 4.14 percent, gross of certain investment fees” for the fiscal year ending March 31, 2023. How large is this custodial business at JPMorgan Chase, which holds so many securities for other parties? On November 24, 2020, the Office of the Comptroller of the Currency (OCC), the federal regulator of national banks, fined JPMorgan Chase $250 million for “failure to maintain adequate internal controls and internal audit over its fiduciary business.” That business includes its custodial business. The OCC Consent Order related to that fine revealed the following: “The Bank maintains one of the world’s largest and most complex fiduciary businesses with total fiduciary and related assets of $29.1 trillion, including $1.3 trillion in fiduciary assets and $27.8 trillion of non-fiduciary custody assets.” To put that $29.1 trillion into the proper perspective, the Federal Deposit Insurance Corporation (FDIC) reports that as of September 30, 2023 there were 4,049 commercial banks in the U.S. The total assets of those 4,049 banks was $22.2 trillion. But, somehow, just one of those banks has attracted $27.8 trillion of assets for which it serves as custodian. Is there some secret sauce that JPMorgan Chase has going for it to attract all of that money? In September 2020, when the International Consortium of Investigative Journalists (ICIJ) released a bombshell investigative report about money laundering for criminals at some of the largest Wall Street banks, it had quite a bit to say about JPMorgan Chase. (The ICIJ investigation was based on secret documents leaked from FinCEN, the Financial Crimes Enforcement Network, a unit of the U.S. Treasury.) According to the ICIJ report, JPMorgan Chase was involved in moving illicit funds for the fugitive, Jho Low, involving the notorious looting of public funds in Malaysia. Jho Low has been accused by multiple jurisdictions of playing a key role in the embezzlement of more than $4.5 billion from a Malaysian economic development fund, 1MDB. JPMorgan Chase moved $1.2 billion in money for Jho Low from 2013 to 2016, according to the report. The ICIJ report also found that JPMorgan “processed more than $50 million in payments over a decade…for Paul Manafort, the former campaign manager for President Donald Trump. The bank shuttled at least $6.9 million in Manafort transactions in the 14 months after he resigned from the campaign amid a swirl of money laundering and corruption allegations spawning from his work with a pro-Russian political party in Ukraine.” Equally troubling activity at JPMorgan Chase includes the following, according to ICIJ investigators: “JPMorgan also moved money for companies and people tied to corruption scandals in Venezuela that have helped create one of the world’s worst humanitarian crises. One in three Venezuelans is not getting enough to eat, the UN reported this year, and millions have fled the country. “One of the Venezuelans who got help from JPMorgan was Alejandro ‘Piojo’ Isturiz, a former government official who has been charged by U.S. authorities as a player in an international money laundering scheme. Prosecutors allege that between 2011 and 2013 Isturiz and others solicited bribes to rig government energy contracts. The bank moved more than $63 million for companies linked to Isturiz and the money laundering scheme between 2012 and 2016, the FinCEN Files show…” Wall Street banks like JPMorgan Chase are legally required to follow the “KYC” rule (Know Your Customer) in order to avoid moving money around for criminals. But the ICIJ investigators reveal that JPMorgan Chase paid little attention to that rule. Less than six months ago, JPMorgan Chase settled two separate federal lawsuits against it for actively participating in Jeffrey Epstein’s sex trafficking of minors enterprise by turning a blind eye to glaring red flags and failing to file the legally mandated Suspicious Activity Reports (SARs) as Epstein took upwards of $40,000 to $80,000 in hard cash monthly from his accounts at the bank over a decade. In return, Epstein referred ultra wealthy clients to the bank according to court documents. JPMorgan Chase previously admitted in 2014 to two criminal charges brought by the U.S. Department of Justice for banking Bernie Madoff’s Ponzi scheme for decades (that devastated the finances of thousands of retirees) and ignoring its legal obligation to file SARs with the Financial Crimes Enforcement Network (FinCEN). The settlement with the Justice Department included a penalty of $1.7 billion in restitution to Madoff victims and a promise to reform its anti-money laundering compliance programs. The text of JPMorgan’s contract with the New York State Comptroller to custody assets for the Common Retirement Fund indicates that the New York State Comptroller found the bank to be a “responsible” entity. Yesterday, we emailed the press office for the Comptroller and listed the nature of the five felony counts the bank has admitted to since 2014. We inquired if the Comptroller was aware of these charges. The response was that there would be no comment from the Comptroller’s office to our questions. Related Articles: JPMorgan Chase Paid $1.085 Billion in Legal Expenses in Last Six Months; It’s Still Battling Hundreds of Charges and Legal Proceedings on Three Continents JPMorgan/Jeffrey Epstein Cases Are a Cross Between the Bank’s Chinese Princeling Scandal and Madoff Fraud, Using Sex with Minors as a Bribe JPMorgan Chase Quietly Settles Whistleblower Case Involving Charges of Keeping Two Sets of Books and Improper Payments to Tony Blair Watchdog to Fed: JPMorgan Is Controlling Fossil Fuels Empire, Which Just Spilled a Million Gallons of Oil in Gulf of Mexico Janet Yellen’s Treasury Department Hires 5-Count Felon JPMorgan Chase to Look for Fraud Professors Point to JPMorgan Chase as Poster Boy of a Financial System Dependent on Corruption to Sustain Itself

1 1

$87 Million Buys This for Jamie Dimon: David Boies Can't Utter the Words “JPMorgan Chase” in a Jeffrey Epstein Sex Trafficking Case
by Gunnar Larson 28 Feb '24

28 Feb '24

https://wallstreetonparade.com/2024/02/87-million-buys-this-for-jamie-dimon… By Pam Martens and Russ Martens: February 27, 2024 ~ On Friday, February 16, ahead of a three-day weekend, JPMorgan Chase quietly filed its 10-K (annual report) with the Securities and Exchange Commission. The document carried the bombshell that the bank had paid an astonishing $1.4 billon in legal expenses in 2023 – a 426 percent increase over the prior year’s legal expenses. While the bank didn’t break down the names of the law firms that received the lion’s share of those legal expenses, public records can fill in most of the blanks. Throughout 2023, JPMorgan Chase was paying the expensive lawyers at WilmerHale to defend it against a federal lawsuit brought by the David Boies law firm, Boies, Schiller & Flexner LLP, on behalf of the raped, assaulted, and sex trafficked underage victims of Jeffrey Epstein. JPMorgan was also paying WilmerHale lawyers throughout 2023 to defend it against Epstein-related charges brought by the Attorney General of the U.S. Virgin Islands. In both cases, the plaintiffs credibly alleged that the bank was actively-engaged in facilitating Epstein’s criminal sex-trafficking enterprise by providing the financial services and hard cash necessary to keep it going while willfully violating its duty to report the cash transactions to the Financial Crimes Enforcement Network (FinCEN). Both cases were settled by JPMorgan last year, thus preventing the mountain of heavily redacted and sealed documents from seeing the light of day in a jury trial. The Epstein victims’ case was settled for $290 million while the U.S. Virgin Islands case was settled for $75 million. Throughout last year’s scandalous headlines, the Chairman and CEO of JPMorgan Chase, Jamie Dimon, preposterously stuck to the story that he didn’t know the notorious Epstein was a client at the bank, from at least 1998 to 2013, and likely much longer. The Boies law firm and another law firm involved in the Epstein victims’ case, Edwards Henderson Lehrman, received $87 million in legal fees from the $290 million settlement, plus more than $1 million in legal expenses. Now we’re learning new details about what else WilmerHale and Dimon extracted from David Boies (in addition to a ton of documents remaining sealed or redacted) in exchange for that $87 million payday. Earlier this month, David Boies filed a federal lawsuit against Darren Indyke and Richard Kahn, Epstein’s personal lawyer and accountant, respectively. There are two named plaintiffs who seek to become the class representatives in a class action against Indyke and Kahn: Danielle Bensky and Jane Doe 3. Bensky’s allegations originate during the time-period in which JPMorgan Chase was funneling $40,000 to $80,000 a month in hard cash to Epstein so he could pay hush money to his victims and incentive cash to his recruiters of underage girls. But instead of Boies including what would be the very critical information against JPMorgan Chase that was obtained in discovery in last year’s cases, the bank’s name is not mentioned once in the 85-page court filing. The heart of the case against Indyke and Kahn is that they were “personally essential to the Epstein Enterprise’s success—among other things, they helped structure Epstein’s bank accounts and cash withdrawals to give Epstein and his associates access to large amounts of cash in furtherance of sex trafficking.” How a lawyer can prove this case without naming the bank that played a central role in the scheme from at least 1998 through 2013 is beyond our comprehension. Unless, of course, the strategy is to just grab another settlement. Below is a sampling of the gut-wrenching charges that Boies made against JPMorgan Chase just last year in the victims’ case against the bank: “To access the large amount of cash needed to maintain his active sexual abuse of young women, it was essential that the financial institution where he banked be complicit in his operation, and more specifically that Epstein bank at a financial institution that would allow him to constantly withdraw cash from his accounts without following anti-money laundering and reporting laws. To put it plainly, Epstein needed a bank that knew he was engaging in illegal activity and did not care, which Epstein had in JP Morgan.” “Epstein’s aptitude as a sex-trafficker and appetite as a sexual abuser did not suffer because of his Florida incarceration in 2008. Even while he was in jail in Florida, Epstein brazenly continued to sexually abuse young girls and women from his work-release office.” “At all relevant times, Epstein maintained numerous apartment units at 301 East 66th Street in New York City, where Epstein’s co-conspirators often stayed and which operated as stash houses where numerous victims were kept over the years.” “JP Morgan knew of the 301 East 66th Street Epstein properties and knew that these units operated as victim stash houses.” “In 2006, Jeffrey Epstein was arrested in Florida after state and federal law enforcement discovered that he had sexually abused more than 30 children in his Palm Beach, Florida mansion…As a consequence of the Florida investigation, Epstein pled guilty to two felonies, was permanently labeled a ‘Registered Sex Offender,’ and was jailed in 2008. Epstein also entered into a non-prosecution agreement with the U.S. Attorney’s Office for the Southern District of Florida barring his prosecution (and prosecution of his known and unknown co-conspirators) for violations of the TVPA [Trafficking Victim Protection Act] and other sex offenses in Florida. When the U.S. Attorney’s Office entered into that non-prosecution agreement with Epstein, it had not received reports from JP Morgan about vast sums of cash that it was providing Epstein. Nor did JP Morgan provide any other assistance in the investigation.” “JP Morgan chose not to cooperate with law enforcement and other investigations into Epstein’s sex trafficking, because it knew it would be exposed as assisting in Epstein’s scheme.” “As Epstein’s criminal sex trafficking venture expanded, he needed more protection and support from JP Morgan. Through [Jes] Staley and others, Epstein became more deeply involved with JP Morgan, providing JP Morgan with more financial benefits. And, as a quid pro quo, JP Morgan allowed Epstein to transfer massive amounts of hush money to his victims and recruiters. JP Morgan allowed Epstein to withdraw hundreds of thousands of dollars in cash so that all the payments were not traceable (the most obvious red flag for any criminal enterprise).” “…JP Morgan failed to file with the federal government the required SARs that financial institutions must file with the Financial Crimes Enforcement Network (‘FinCEN’) whenever there is a suspected case of money laundering or fraud. Timely filing of these reports is required by the Bank Secrecy Act and related laws and regulations. These reports are tools that the federal government uses to detect and prosecute, among other illegal activities, sex trafficking in violation of the TVPA. While JP Morgan was providing Epstein vast sums of cash each year, it was required to timely file SARs about Epstein’s suspicious and unusual cash transactions. JP Morgan’s failure to timely file SARs about Epstein’s sex-trafficking venture, in spite of numerous red flags, was wrongful and purposeful.” This is what passes for “justice” in the United States of America, circa 2024. Related Articles: JPMorgan and Jeffrey Epstein Explained: Twisted Banking Taps into Sex Fiend’s Network Jamie Dimon Is Desperate to Pin the Jeffrey Epstein Scandal on Jes Staley; Bloomberg News Is Carrying His Water — Again New Court Documents Suggest the Justice Department Under Four Presidents Covered Up Jeffrey Epstein’s Money Laundering at JPMorgan Chase Mainstream Media Is Avoiding the Big Story on Jeffrey Epstein and Sealed Court Documents 17 Attorneys General and Two Claimants File Objections to JPMorgan Chase’s Tricked Up Settlement with Jeffrey Epstein Victims

1 0

RE: #F23,205 Open Records # 2024-040-00099 Ref. Social Media lawsuit
by Gunnar Larson 28 Feb '24

28 Feb '24

Dear Dana: Thank you for your email. Have a great day. Thank you, Gunnar -- Gunnar Larson xNY.io - Bank.org 917-580-8053 On Tue, Feb 27, 2024, 12:31 PM Nieves Dana <DNieves10(a)schools.nyc.gov> wrote: > Please see attached in reference to the above FOIL request. > > Please continue to submit all communications concerning this request to > FOIL(a)schools.nyc.gov using the subject-referenced number. > > > > Thanks, > > > > *Dana Nieves* > > Records Access Unit Coordinator: FOIL Unit > > New York City Department of Education > > Office of the General Counsel > > DNieves10(a)schools.nyc.gov > > > > >

2 1

Anti-suit Injunctions - Cyprus Injunctions - Trials & Appeals & Compensation - Cyprus
by Gunnar Larson 28 Feb '24

28 Feb '24

https://www.mondaq.com/cyprus/trials--appeals--compensation/1429386/anti-su… Anti-suit injunctions: The courts have the power to issue interim injunctions prohibiting a Party from bringing court or arbitration proceedings. In general and where there is the element of foreign parallel proceedings, anti-suit injunctions are intended to prevent "forum shopping" or the bringing of proceedings in a "forum non conveniens" or where the foreign proceedings have been issued in bad faith and thus have an oppressive or vexatious effect. Such injunctions are issued in personam, so that they are compatible with the need for comity between different countries and their court systems. General Criteria for issuing anti-suit injunctions: Any type of injunction under Cyprus Law must satisfy the general principles for issuing Court orders under Section 32 of the Court of Justice Act (14/1960), in which the power is conferred to grant injunctions in all cases in which it appears to the Court just or convenient to do so. These are explained in a separate article that can be found below. In short, the general rules of course are that: "(a) there needs to be a serious question arises to be tried at the hearing. (b) There appears to be "a probability" that the plaintiff is entitled to relief and, lastly, (c) it shall be difficult or impossible to do complete justice at a later stage without granting an interlocutory injunction." Non-exhaustive Examples of circumstances in which anti-suit injunctions may be issued: 1. For the protection of existing proceedings within the jurisdiction of the Court : - e.g. where there are pending bankruptcy proceedings or liquidation proceedings, or where a Party has initiated two proceedings and the Applicant in the anti-suit proceedings seeks to compel the other Party to choose or be limited to a single jurisdiction. In deciding whether to prohibit a Party from proceeding in a foreign jurisdiction the court shall take into consideration (a) whether it serves the interests of justice; (b) the order is in personam against a Party and not against a foreign Court (c) that in issuing such an injunction, utmost care to protect comity must be exercised since it is inevitable that such orders indirectly affect foreign courts and their jurisdiction to try a case. 2. Exclusive jurisdiction clause: - In cases where there is an exclusive jurisdiction clause for referring the dispute to a specific jurisdiction or arbitration. The injunction may be requested by the Applicant either to oblige the Respondent to comply with the jurisdiction clause. In such cases, in order for an anti-suit injunction to be issued, the Respondent must be within the jurisdiction of the court and the Applicant must prove that he has basis of claim and or right to prevent the Respondent from using the foreign court, e.g. contractual right/obligation to use the courts of Cyprus. 3. Where parallel foreign proceedings have an oppressive or vexatious effect: - In cases where a jurisdiction clause is not exclusive, an order may be issued if proved that a Party is acting oppressively, vexatious or in bad faith by instituting foreign proceedings. 4. Where there are restrictive international treaties/regulations: - In cases where there are specific European or international treaties / regulations, which regulate the jurisdiction and or the effect of jurisdiction / arbitration clauses. However given the inevitable effect on a foreign jurisdiction and possible interference with the comity of states, in addition to the very restrictive nature of an anti-suit injunction which affects the core of the constitutional right to access to justice, the Cypriot Courts are hesitant to issue such orders and shall only do so in exceptional circumstances where all criteria are met and where it is just and convenient in the interests of justice.

1 0

Consumers Face Big Setback In ?10B Mastercard Class Action
by Gunnar Larson 28 Feb '24

28 Feb '24

Consumers Face Big Setback In £10B Mastercard Class Action <https://www.law360.com/banking/articles/1806678?nl_pk=feb6bbba-7878-4d39-be…> By Nadia Dreid Britain's antitrust court dealt a blow to consumers Monday in a £10 billion ($12.68 billion) class action over Mastercard's fees by ruling that the credit card titan's European interchange fees didn't influence its domestic rate in the United Kingdom. Read full article » <https://www.law360.com/banking/articles/1806678?nl_pk=feb6bbba-7878-4d39-be…> | Save to favorites » <https://www.law360.com/banking/articles/1806678?nl_pk=feb6bbba-7878-4d39-be…>

1 0

Bankman-Fried Urges No More Than 6.5 Years For FTX Fraud
by Gunnar Larson 28 Feb '24

28 Feb '24

Bankman-Fried Urges No More Than 6.5 Years For FTX Fraud <https://www.law360.com/fintech/articles/1807156?nl_pk=d2b3e7ef-ab62-4a62-80…> By Lauren Berg and Rachel Scharf FTX founder Sam Bankman-Fried asked a Manhattan federal judge late Tuesday for a sentence that releases him "promptly" after his conviction for stealing billions from customers of the now-collapsed crypto exchange, arguing that federal sentencing guidelines recommend no more than six-and-a-half years in prison. 9 documents attached | Read full article » <https://www.law360.com/fintech/articles/1807156?nl_pk=d2b3e7ef-ab62-4a62-80…> | Save to favorites » <https://www.law360.com/fintech/articles/1807156?nl_pk=d2b3e7ef-ab62-4a62-80…>

1 0

Cleary And Vladeck Raskin Must Face Cuomo's Subpoena Bid
by Gunnar Larson 28 Feb '24

28 Feb '24

Cleary And Vladeck Raskin Must Face Cuomo's Subpoena Bid <https://www.law360.com/newyork/articles/1807304?nl_pk=ac5a3855-e47c-4403-be…> By Jack Karp Former New York Gov. Andrew Cuomo can continue his effort to force Cleary Gottlieb Steen & Hamilton LLP and Vladeck Raskin & Clark PC to turn over information about the women whose sexual misconduct accusations forced him to resign, a New York federal judge has said. Order attached | Read full article » <https://www.law360.com/newyork/articles/1807304?nl_pk=ac5a3855-e47c-4403-be…> | Save to favorites » <https://www.law360.com/newyork/articles/1807304?nl_pk=ac5a3855-e47c-4403-be…>

1 0

U.S. Supreme Court Endorses Low Burden Of Proof For Whistleblowers - Whistleblowing - United States
by Gunnar Larson 28 Feb '24

28 Feb '24

https://www.mondaq.com/unitedstates/whistleblowing/1428262/us-supreme-court… In a landmark unanimous ruling late last week, Murray v. UBS Securities, LLC, et al. 601 U. S. ____ (2024), the U.S. Supreme Court held that whistleblowers do not need to prove their employer acted with "retaliatory intent" to be protected under the Sarbanes-Oxley Act. Instead, all whistleblower plaintiffs need to prove is that their protected activity was a "contributing factor" in the employer's unfavorable personnel action. Background The Sarbanes-Oxley Act is a federal law that was passed in 2002 with the goal of improving auditing and public disclosure in response to several accounting scandals which shook financial markets. In recognition of the role whistleblowers played in exposing the accounting scandals of the early-2000s, Congress passed Section 806, codified at 18 U.S.C. § 1514A, which prohibits publicly-traded companies from retaliating against whistleblowing employees. The U.S. Supreme Court in Lawson v. FMR, 571 U.S. 429 (2014), thereafter extended the whistleblower protections in § 1514A to employees of non-public contractors and subcontractors of a public company. The language of the Sarbanes-Oxley Act at issue in the Murray v. UBS Securities, LLC case was no employer subject to Sarbanes-Oxley "may 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 protected whistleblowing. Many statutes dealing with employment discrimination and retaliation apply a relatively high bar for employee-plaintiffs, requiring the plaintiff to show that the protected activity was a substantial factor in, or the "but-for cause" of the adverse employment action. Ruling The case involved the termination, in 2012, of a research strategist working for a New York securities firm, UBS Securities, LLC ("UBS"). After his termination, the research analyst filed a lawsuit against his former employer claiming his termination was retaliatory. The case went to trial and the jury found in favor of the plaintiff and issued an advisory verdict on damages, recommending that the plaintiff receive nearly $1 million. The court then adopted the jury's advisory verdict on damages and awarded an additional $1.769 million in attorney's fees. UBS appealed the decision to the Second Circuit, which vacated the jury's verdict and remanded for a new trial. The appellate court identified the central question as whether the Sarbanes-Oxley Act's antiretaliation provision requires a whistleblower-employee to prove retaliatory intent, and concluded that the answer was yes. The Second Circuit's opinion, requiring whistleblowers to prove retaliatory intent, placed that Circuit in conflict with the Fifth and Ninth Circuits, which had rejected such requirement; therefore, the U.S. Supreme Court decided to "resolve the disagreement." In a 9-0 decision, the U.S. Supreme Court reversed the decision of the Second Circuit and remanded, holding that a plaintiff does not need to prove retaliatory intent to prevail on a retaliation claim under the Act. A whistleblower who invokes 18 U.S.C. §1514A only bears the burden to prove that his protected activity "was a contributing factor in the unfavorable personnel action alleged in the complaint." If a plaintiff makes this showing, the burden then shifts to the defendant to show, by clear and convincing evidence, that it "would have taken the same unfavorable personnel action in the absence of " the protected activity. The U.S. Supreme Court left no doubt as to the employee-friendly nature of its decision. Justice Sotomayor, who authored the Opinion of the Court, wrote: "To be sure, the contributing-factor framework that Congress chose here is not as protective of employers as a motivating-factor framework. That is by design. Congress has employed the contributing-factor framework in contexts where the health, safety, or well-being of the public may well depend on whistleblowers feeling empowered to come forward. This Court cannot override that policy choice by giving employers more protection than the statute itself." While the decision relieves plaintiffs of having to show retaliatory intent, the Court nonetheless asserted that Sarbanes-Oxley's burden-shifting framework does serve as a "mechanism for getting at intent" by allowing an employer to respond to an employee's circumstantial evidence with its own. This, says the Court, provides the "full picture" that allows the factfinder to make the ultimate determination as to whether differential treatment was intentional and based on protected activity. Why Is This Important? After this decision, there is no longer any doubt as to the burden of proof in whistleblower lawsuits under the Sarbanes-Oxley Act. While the burden for employees is to prove that their whistleblowing contributed, even tangentially, to the unfavorable personnel decision (which includes termination, demotion, transfer, etc.), in order to defend against such claims, an employer must prove by clear and convincing evidence, that it would have taken the same unfavorable personnel action in the absence of the protected behavior. In a nutshell, this is a high bar for employers to meet. In practice, employers should act with caution in considering personnel decisions if they are aware of a complaint or report that might qualify as a protected activity under the Sarbanes-Oxley Act (or other anti-retaliation statutes). Employers should also review their policies and practices regarding internal reporting mechanisms to ensure visibility into such complaints or report. This decision further serves to remind employers of the importance of documenting legitimate workplace performance issues.

1 0