The following is the third blog in a three-part series detailing my story about being a Bank of America/Countrywide Financial Corporation whistleblower. The first piece detailed the numerous violations I witnessed at the company. Yesterday’s piece shows how I prevailed in a court of law.
Over two years after our legal victory (called “overwhelming” by the trial judge), the jury verdict was “tossed out.” On what grounds? There was no new evidence. My winning jury verdict was reversed on the same day and time as I was presenting at a Government Accountability Project conference on whistleblowing in Florida.
In early 2011, 12 jurors listened and watched the trial for nearly one month, and then deliberated for two and a half days, returning a verdict finding serious violations of the law. A learned and highly experienced trial judge, after hearing and seeing the same evidence, concluded there was, indeed, legally sufficient evidence to support the jury’s verdict.
After the verdict was announced and the trial concluded, at least six jurors approached and hugged me and said very flattering things about courage, integrity and doing the right thing.
Then in 2013, on a demonstrably “cold case,” three justices on the Appellate Court claimed they found no evidence and that judgment should accordingly be rendered against the verdict. This is just factually untrue. They then said that Bank of America (BofA) was not responsible for Countrywide’s misdeeds. This is also factually untrue.
Just what happened? The process the Appellate Court applied to my case was deeply-flawed. Appellate documents were pushed back and forth between my counsel and BofA/Countrywide. Three times each. With each successive receipt, more and more of the evidence that the jury relied upon in my case was deleted. Vanished into thin air. Thus, this Appellate court decision seems based upon sound bites, half-truths, untruths, edited or radically-depleted records. I was not present at the hearing. Neither was a court reporter. This was the only one of dozens of hearings in my matter in which a court reporter was not present.
I was shocked at the reversal; absolutely stunned. I also just learned that my case-in-chief had been surreptitiously reclassified as a “wrongful termination” case. However, my primary case was always a retaliation case, not a wrongful termination case. Sure, I was terminated a month after BofA took over and I had a meritorious claim. That said, my case was about the ongoing, relentless, egregious retaliation that took place at least once monthly (usually multiple times) from August 2006 until termination in July 2008.
Wrongful termination was only the last of over 80 adverse employment actions. The case-in-chief we filed and pled was “Retaliation in violation of public policy.” The wrongful termination claim is much narrower and is not what we argued. The term was never even used during trial until the jurors were asked, after rendering their verdict, to initial a “special verdict form.” The defendant’s egregious retaliatory conduct is a common law tort in the State of California and is against public policy. The bulk of the evidence, both testimonial and documentary, supported the allegation of retaliation. Many witnesses testified to retaliation.
But now, the Appellate Court had changed the game. It was now a narrow, limited claim for wrongful termination. I did not file such a claim. Further, as a result of this reclassification, the Court was now ruling that all evidence of retaliation except wrongful termination was to be disregarded.
This can’t be legal. My constitutional rights are being trampled in this process. Is this a symptom of what is meant by “too-big-to-fail?”
A prominent California attorney, Cliff Palefsky, recently went on the record regarding actions taken by the Appellate Court: “This never happens … it isn’t legal … The appeals court is not supposed to go back and cherry-pick through the evidence the way this court did. And if there is any doubt about a case, they are legally bound to uphold the jury’s verdict.”
Palefsky should know. He has been included as one of the Best Lawyers in America every year since that survey’s inception in 1986, and was named Best Lawyer of the Year in the San Francisco Labor and Employment Law category in 2011. He received his J.D. from Georgetown University in 1977, and has been called one of the “Most Feared Lawyers” by Human Resources Magazine and the San Francisco Business Journal. In 2010 he received the California Lawyer Magazine Attorney of the Year Award for his work as part of a litigation team that obtained a $78.5 million settlement – the largest settlement in the history of the U.S. Department of Education. Chambers USA described him as “the leading plaintiff side employment lawyer in California” and named McGuinn, Hillsman & Palefsky as the leading plaintiff employment firm in the state.
If it is true, as Palesky asserts, that the Court is “legally bound to uphold the jury’s verdict,” I need a lawyer to enforce this for me. The Appellate reversal felt totally contrived, like the product of an unholy alliance between the legal system and a too-big-to-fail bank.
Another prominent attorney told me the Appellate Court made a “draconian move. They did it deliberately. You got shafted. You had sufficient evidence to prevail with the Appellate Court. They should have affirmed the jury verdict. They deliberately circumvented your options. Their decision was not judicious.”
So why would a court suppress rather than enforce my rights?
The opinion written by the Court seemed eerily similar to the initial Appellate Brief written by BofA’s lawyers. I found this very worrisome. The Court of Appeal seemed to be attempting to rewrite history. They edited evidence, re-sequenced evidence, misinterpreted evidence and deleted crucial evidence. They re-weighed the evidence though this is not allowed. They failed to credit the overwhelming jury verdict to me though they are required to do so. It appeared that the Chief Justice gave BofA the benefit of the doubt in virtually every instance. Yet, the law requires that such benefit go to me, the person who won the jury verdict. Why would Justices show such bias?
Further, instead of fully crediting the jury verdict, the court fashioned some form of additional de facto direct-evidence requirement of what was said behind closed doors. In doing this, they have denied me of rights granted all citizens under the U.S. Constitution.
According to an amicus brief filed by GAP to the California Supreme Court, and signed by Senior Counsel Richard Condit:
“The Court of Appeal carved out an exception to the longstanding rule of law leaving matters of credibility, the drawing of inferences, and making judgments concerning the weight of evidence to the jury. Instead, the Court of Appeal nullified the jury’s determinations and substituted its assessment of the record for those of the jury and trial judge. Such a departure from well-established principles of law creates a conflict among the Courts of Appeals and conflicts with the prior rulings of this Court…
“Respect for the jury’s determinations is the rule in California and likewise the rule in the federal system … This result is contrary to and in conflict with California precedent and prevailing federal precedent in whistleblower cases.” (emphasis added)
Further, a noted attorney declared that the Appellate Court not only re-weighed the evidence, but pretended not to. He noted the Court gave full credit to BAC/CFC testimony (which was proven to be fraught with countless lies on issues material to my case). He opined that the Court gave virtually no credit to me for getting the jury verdict. This is unlawful. Many others concur.
Still further, according to the Trial Judge, Hon. Bert Glennon Jr., when denying BofA’s claim for a Judgment Notwithstanding Verdict and supporting my victory, “there was a great deal of evidence that was provided to the jury in making their decision, and they went about it very carefully and took their time. As this Court has noted, trial judges have the unique opportunity to consider the evidence in the living courtroom context, while appellate judges see only the cold paper record.” This, too, is on the record.
Given the above, how is reversal even possible? The precedent this sets is too dangerous to go unchallenged.
The facts speak for themselves. So did the jury, which voted overwhelmingly in my favor and gave me the verdict. The weight of the evidence supported the jury verdict. Thus, while the Appellate Court states they “scoured the record” and found no support for the claim, the record actually shows abundant evidence. In fact, our evidence was so overwhelming that the trial judge informed us twice that we had met the sufficiency criterion and instructed us to submit no further evidence as the Judge and jury had heard and seen more than enough. It is on the record. In fact, based upon the Trial Judge’s advice, we dismissed our next witness, Scott Mumby, who had already arrived in the courthouse and was ready to testify. Two additional witnesses, Gayane Zakarian and Charles Benedict, scheduled for the following day, were also dismissed based upon the Trial Judge’s instruction.
The real story isn’t the damage done to my person through this unbelievable ruling. It is that the Appeal Court can manipulate facts, law and legal issues to justify the conclusions they want to reach. I have learned firsthand that the case one reads about in the published opinion can bear little resemblance to the case actually presented to the lower court. To make matters worse, judges have absolute immunity to any suit seeking remedy for grossly erroneous decisions, no matter how negligent, reckless or malicious the judge acts in depriving a deserving party of a just judgment.
This is almost farcical. Who judges the judges?
I am advised that this occurrence – a high profile case in which a seven-figure verdict was reversed on appeal with no option for remand or retrial – is extremely rare. Then the California Supreme Court declined my petition for certification. Case closed. This is rarer still.
I can refute with evidence virtually every conclusion reached by the Appellate Court. In most instances, the opposite was true.
This must not stand. If it does, it will set precedent and happen indiscriminately to others.
- We (my team) defeated their Motion for Summary Judgment.
- We defeated their motion claiming lack of standing.
- We successfully defeated their Motions in Limine. As a result, testimony was compelled from the top five Countrywide officers.
- We won a jury verdict after a nearly month-long trial.
- The victory was affirmed and referred to as “overwhelming” by the Trial Judge.
- We defeated their Motion for Judgment Notwithstanding Verdict (JNOV).
- Over two years later, the Appellate Court re-evaluated the evidence, fully crediting BAC/CFC testimony, which was deemed to be not credible by the jury. The Appellate Court did NOT credit my favorable jury verdict. I am told this is against the law and unconstitutional.
- We petitioned for Rehearing by the Appellate Court. They refused.
- We petitioned for Hearing by the California Supreme Court. They denied.
The jury system was created to prevent judicial bias and influence peddling by the rich, connected and powerful. The idea was to achieve balance by introducing the perspectives of a jury of 12 of one’s peers. Instructions to the jury in my case in January and February 2011 advised them that they were “the sole and exclusive judges of the believability of the witnesses and the weight to be given the testimony of each witness.” The instructions added: “A witness, who is willfully false in one material part of his or her testimony, is to be distrusted in others.” The role of juror was stated to jurors by the trial judge as “trier of fact and determiner of fact.”
The jury in my case deliberated long and carefully for 2½ days. After a process spanning nearly a month, the jury rendered their verdict in my favor. They concluded I did the right things and told the truth about them. Further, they concluded, BofA/CFC did the wrong things and lied to cover them up. Thus, the jury had spoken. Why convene a jury only to totally ignore its verdict?
The American system is based upon respecting, not usurping, the jury verdict. In fact, the Los Angeles County Appellate Court’s own website affirms that it must accept the jury’s findings as fact. And that the Appellate Court cannot retry or renegotiate facts: “On an appeal from a judgment after a trial, the appellate court will reverse the judgment only if it finds the trial court committed legal errors that were prejudicial during the trial.”
However, legal errors were not committed. Clearly, the evidence was reevaluated and re-interpreted by the Appellate Court. This reweighing of the evidence is specifically not allowed by the Appellate Court (“An appeal is not a retrial. Trial courts resolve both legal and factual disputes, but appellate courts consider only legal questions. They do not reweigh the evidence, and they do not reassess witness credibility”). Reviewing the evidence is the charter of the Trial Court only. By failing to follow these well-established legal standards, the Appellate Court judges were breaking the law they have sworn to defend. I am filled with worry, not only for my case but also for our country. Why are the rules being violated by Justices who are expected to follow them? How can we ensure a court free of bias? Will this decision thwart the seating of future juries when they learn their time, talent and opinion can so easily be “tossed?”
In the face of fraud, abuse and wrongdoing, will anyone stand up and speak truth to power when a jury verdict broadly vindicating their actions is so easily cancelled? This is bound to have a chilling effect on whistleblowers everywhere.
My worry intensifies. Why are the justices not focused on the real issues in this case? We documented hundreds of lies by witnesses for the defense … deliberate, egregious, blatant … and no one has been held to account. Are BofA and Countrywide above the law? Is the reversal of the jury verdict and court ruling just another example of unwillingness to punish too-big-to-fail firms? The Untouchables, indeed.
Because the facts in this case were so frequently misstated by defendants, my appellate lawyer requested a waiver, which he has only done twice before in his 40-year career. A harbinger of things to come … the request was denied by the appellate court. Thereafter, every single lawyer with whom I consulted advised me that the Appellate Court reweighed the evidence, leaned in the direction of the appellant, instead of the verdict as required and deprived me of due process and rights guaranteed by the constitution.
There is something very wrong here. The institutions set up to protect us and punish wrongdoers have instead protected wrongdoers and punished us. The wrongdoers must be held accountable. I am seeking a strong legal advocate to help me achieve justice.
In late May, 2014, famed journalist Yves Smith published an article about my case. She came up with an interesting sub-title, “How an Appellate court ran roughshod over bedrock principles of judicial review to reverse a decisive victory by a Countrywide whistleblower.” Relevant to this issue is the question raised by noted attorney Doris L. Sassower who asked, “Where do you go when Judges break the law? Her answer? “You go public.” I believe this is good advice. I am taking it.
Whistleblowers inherently face risks of standing up to authority and the status quo, along with very real dangers to their reputations, jobs, careers, and relationships. The Court of Appeal’s decision, especially because it is being so closely watched, sends a message to would-be whistleblowers that a jury’s verdict can ultimately mean nothing and that even when justice is achieved, it can – with seeming arbitrariness – be taken away.