Despite Privilege, GC May Pursue Whistleblower Retaliation Suit under SOX and Dodd–Frank

California’s USDC–ND ruled that Bio-Rad Laboratories’ former General Counsel may use privileged communications to prove his retaliatory-discharge case prosecuted under Sarbanes–Oxley and Dodd–Frank’s whistleblower provisions.  The privilege belongs to Bio-Rad, of course, but no matter in this case.

This important ruling departs from state-court decisions and involves in-house lawyers’ ethical duties, SOX preemption, a SEC amicus brief, and privilege-waiver issues.  Wadler v. Bio-Rad Laboratories, Inc., 2016 WL 7369246 (N.D. Cal. Dec. 20, 216).  It is well worth the read, which you can do here.

Background

Bio-Rad manufactures and sells medical-related products and must comply with the Foreign Corrupt Practices Act.  Sanford Wadler served as Bio-Rad’s General Counsel from 1989 until Bio-Rad fired him in June 2013.

Bio-Rad claims that it terminated Wadler due to poor performance, but Wadler claims his termination occurred because he reported alleged FCPA violations to the company’s Audit Committee.  Wadler filed suit asserting retaliatory-discharge claims under SOX and Dodd–Frank. (Read the Complaint here). More…

Important Choice-of-Privilege-Law Issue Unfolding in the Ninth Circuit 1

Resist the urge to stop reading when you see the phrase “choice of laws.”  There is an important choice-of-privilege-law issue brewing in the 9th Circuit that could have significant privilege repercussions in federal-court cases containing federal- and state-law claims.

Still reading?  Let’s discuss the situation in In re: TFT-LCD (Flat Panel) Antitrust Litig. (Sony Electronics, Inc. v. HannStar Display Corp.), No. 14–15916 (CTA9).

Background

Sony Electronics, Inc. possessed antitrust and related claims against HannStar Display Corporation (and others) arising from HannStar’s alleged conspiracy to fix prices and limit the output of LCD panels.  Sony and HannStar participated in a pre-suit mediation where it appeared, through confirming emails, that both parties agreed to a mediator’s proposal of $4.1M. More…

Court Rejects Privilege for In-House Lawyer’s Handwritten Notations

In a ruling that may puzzle in-house legal departments, the Arizona USDC ruled that the attorney–client privilege did not cover in-house attorneys’ handwritten notations on non-privileged documents.  The court’s primary reason was that the notations “were [n]ever communicated to anyone.”  Greyhound Lines, Inc. v. Viad Corp., 2016 WL 4703340 (D. Ariz. Sept. 8, 2016).  You may read the decision here.

Discovery Issue

In this federal-question case, Greyhound claims that Viad is responsible for environmental clean-up costs on properties that Viad sold to Greyhound.  During discovery, Viad produced a set of non-privileged documents, but redacted notations on these documents made by one or more of its in-house lawyers. More…