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