Brinker v. Axos Bank, 3:22-cv-00386

The case involves a dispute between Jennifer Brear Brinker (Plaintiff) and Axos Bank (Defendant), including counterclaims.
Defendant filed a motion for summary judgment, to which Plaintiff filed an opposition and Defendant replied.
Plaintiff sought leave to file a sur-reply, arguing Defendant raised new arguments in its reply brief regarding the SOX whistleblower retaliation claim.
The Plaintiff claimed the reply improperly introduced points concerning employer immunity during layoffs and the inapplicability of pretext analysis under SOX.
The Court evaluated whether the arguments raised by Defendant were truly new or simply elaborations in response to Plaintiff's opposition.
The procedural matter at hand was whether Plaintiff was entitled to file an additional brief (sur-reply), not the merits of the underlying claims.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Defendant raised new arguments in its reply	Defendant raised new points (immunity in layoffs, pretext in SOX)	Only responded to Plaintiff’s opposition points, not raising new theories	Not new arguments; sur-reply not allowed
Whether Murray v. UBS provides absolute immunity	Murray gives layoff-based immunity to employers in whistleblower cases	Cited Murray as part of established same-action defense	Reply's use of Murray was not new
Applicability of pretext analysis under SOX	Pretext analysis under other statutes not needed for SOX retaliation	SOX uses AIR-21 causation/burden standards, pretext not irrelevant	Pretext issue was not newly raised
Plaintiff entitled to sur-reply due to alleged misrepresentation	Misstatement of law by Defendant justifies additional briefing	Disagreement with law doesn't justify sur-reply	Alleged mischaracterization insufficient

Murray v. UBS Sec., LLC, 601 U.S. 23 (2024) (addressing burden-shifting and standards for whistleblower retaliation claims)