Erhart v. Bofi Holding Inc.

Filing 40

ORDER Granting in Part and Denying in Part Bofl Federal Bank's Motion for Summary Adjudication of Charles Matthew Erhart's Twelfth Through Twenty-Fourth Affirmative Defenses. Erhart's 14th, 15th, 21st and 22nd Affirmative Defenses fail as a matter of law. Court summarily adjudicates these defenses in Bofl's favor. Court strikes Erhart's 17th and 18th Affirmative Defenses from his Answer because these defenses are redundant of Erhart's other defenses. Court denies Bofl's request for summary adjudication of Erhart's 12th, 13th, 16th, 19th, 20th, 23rd, and 24th Affirmative Defenses. Signed by Judge Cynthia Bashant on 2/14/2017. (Motion filed as ECF No. 45 in 15cv2353-BAS(NLS)) (jah)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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CHARLES MATTHEW ERHART,
Plaintiff,

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Case No. 15-cv-02287-BAS-NLS
consolidated with
15-cv-02353-BAS-NLS
ORDER GRANTING IN PART
AND DENYING IN PART BOFI
FEDERAL BANK’S MOTION
FOR SUMMARY
ADJUDICATION OF CHARLES
MATTHEW ERHART’S
TWELFTH THROUGH
TWENTY-FOURTH
AFFIRMATIVE DEFENSES

v.
BOFI HOLDING, INC.,

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Defendant.

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[ECF No. 45 (in 15-cv-02353)]
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BOFI FEDERAL BANK,
Plaintiff,

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v.
CHARLES MATTHEW ERHART,
Defendant.

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15cv2287

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I.

INTRODUCTION

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These consolidated actions revolve around whistleblower protections under

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federal and state law. BofI Federal Bank employed Charles Matthew Erhart as an

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internal auditor at its headquarters in San Diego, California. After Erhart discovered

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conduct he believed to be wrongful, he reported it to the United States Department

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of the Treasury’s Office of the Comptroller of the Currency—BofI’s principal

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regulator. He later filed an action against BofI under federal and state law

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whistleblower protection provisions alleging BofI retaliated against him for reporting

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unlawful conduct to the government.

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The next day, The New York Times published an article titled Ex-Auditor Sues

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Bank of Internet. The share price of BofI’s publicly-traded holding company

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plummeted thirty percent. A few days later, BofI brought a countersuit against Erhart

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alleging he violated California state law and the Computer Fraud and Abuse Act by

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publishing BofI’s confidential information and deleting hundreds of files from his

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company-issued laptop. The Court consolidated BofI’s countersuit with Erhart's

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whistleblower retaliation action.

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BofI now moves in its countersuit for summary adjudication of thirteen of

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Erhart’s affirmative defenses, all of which relate to whistleblower protections. (ECF

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No. 45.)1 Erhart opposes. (ECF No. 67.) After hearing oral argument, the Court

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GRANTS IN PART and DENIES IN PART BofI’s motion for the following

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reasons.

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II.

BACKGROUND

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A.

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BofI is a financial services company headquartered in San Diego, California.

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(Tolla Decl. ¶ 3, ECF No. 7-4.) On September 23, 2013, Erhart started working for

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Confidentiality Clause

The parties briefed BofI’s motion before the Court consolidated BofI’s countersuit with
Erhart’s whistleblower retaliation action. Therefore, unless otherwise noted, the Court’s Electronic
Case Filing citations are to documents filed in BofI’s countersuit—Case No. 15-cv-02353.
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15cv2287
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BofI as an internal auditor. (Durrans Decl. ¶ 5, ECF No. 7-5; Erhart Decl. ¶ 5, ECF

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No. 67-5.) As an internal auditor, Erhart had access to information BofI treated as

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proprietary and confidential. (Tolla Decl. ¶ 6, ECF No. 7-4.) This information

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included consumer banking information, nonpublic communications between BofI

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and its regulators, communications between BofI’s attorneys and its agents, internal

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audit findings, and BofI’s employees’ personal information. (Id.)

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To safeguard this information, BofI required Erhart to execute an Employee

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Confidentiality, Non-Disclosure, and Non-Recruitment Agreement (“Confidentiality

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Agreement”) as a condition of his employment. (Joint Statement of Undisputed Facts

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(“JSUF”) ¶ 15; Confidentiality Agreement, BofI’s App. Exs., Ex. 6, ECF No. 7-14.)

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This agreement forbids the unauthorized disclosure of BofI’s “Trade Secrets” and

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“Confidential Information.” (Confidentiality Agreement § 2.) The Confidentiality

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Agreement defines “Trade Secrets” by incorporating California law,2 whereas

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“Confidential Information” is defined as information that is “proprietary and

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confidential in nature.” (Id.) For these two types of information, Erhart agreed that:

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[A]t any time during [his] term of employment or following the
termination of [his] employment with BofI, whether voluntary or
involuntary, [he] shall not, except as required in the conduct of BofI’s
business or as authorized in writing by BofI, use, publish or disclose any
of BofI’s Trade Secrets and/or Confidential Information in any manner
whatsoever.

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(Id. § 2.E.)

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Further, Erhart agreed that if his employment with BofI was terminated for any

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reason, he would promptly:

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//

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California, which has adopted the Uniform Trade Secrets Act, defines a “trade secret” as
“information, including a formula, pattern, compilation, program, device, method, technique, or
process, that: (1) Derives independent economic value, actual or potential, from not being
generally known to the public or to other persons who can obtain economic value from its
disclosure or use; and (2) Is the subject of efforts that are reasonable under the circumstances to
maintain its secrecy.” Cal. Civ. Code § 3426.1(d).
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Inform BofI of and deliver to BofI all records, files, electronic data . . .
and the like in [his] possession, custody or control that contain any of
BofI’s Trade Secrets or Confidential Information which [Erhart]
prepared, used, or came in contact with while employed by BofI . . . .
(Id. § 7.A.)

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Erhart’s Use of BofI’s Information

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B.

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In the course of performing his work as an internal auditor, Erhart claims he

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repeatedly encountered conduct he believed to be wrongful. (See generally Erhart

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Decl. ¶¶ 9–75, ECF No. 67-5.) One instance of believed wrongdoing involved a

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subpoena BofI received from the Securities and Exchange Commission (“SEC”). (Id.

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¶ 26.) Erhart believed the bank failed to disclose information to the SEC when it

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responded to the subpoena. (Id. ¶ 27.) On January 14, 2015, Erhart contacted the SEC

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regarding the subpoena. (JSUF ¶ 1.) He did so “to be sure it was aware of the

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situation.” (Erhart Decl. ¶ 29, ECF No. 67-5.) Further, on February 20, 2015, Erhart

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contacted the SEC regarding a BofI loan customer. (JSUF ¶ 2; see also Erhart E-mail,

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Towill Reply Decl. ¶ 2, Ex. A, ECF No. 72-2.) Erhart contacted the SEC because he

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believed the “suspicious” loan customer was operating as an unregistered investment

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advisor. (Erhart Decl. ¶ 31, ECF No. 67-5.) In doing so, he disclosed confidential

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information about the customer to the SEC. (See Erhart E-mail, Towill Reply Decl.

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¶ 2, Ex. A, ECF No. 72-2.)

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Further, during his employment as an internal auditor, “Erhart used his

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personal g-mail account to e-mail files containing confidential BofI information that

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was stored on BofI electronic media to his personal g-mail address.” (JSUF ¶ 3.) He

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also “printed copies of BofI documents, including customer bank account

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information and internal audit reports.” (Id. ¶ 4.) In addition, Erhart “downloaded to

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his personal computer BofI files, including [supervisory communications from

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BofI’s principal regulator], audit communications, audit reports and backup

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information, law enforcement and SEC inquiries regarding a BofI customer, account
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information, wire transfer details, account lists, and portions of loan files.” (Id. ¶ 5.)

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Approximately sixteen months after he joined BofI, Erhart believed his job

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was in jeopardy. (Erhart Decl. ¶ 47, ECF No. 67-5.) In a recent performance

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evaluation, Erhart’s rating had been downgraded, with his bonus adversely affected.

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(Id. ¶ 25.) BofI identified Erhart’s practice of preserving audit findings in writing as

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a performance issue. (Id.) Erhart states BofI had repeatedly directed internal audit

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staff to not create written evidence of believed non-compliance and illegal conduct.

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(Id. ¶¶ 15, 24.) One of BofI’s senior vice presidents walked by Erhart’s workstation

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and stated, in the presence of others, “If [Erhart] continues to turn over rocks,

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eventually he is going to find a snake and he’s going to get bit.” (Id. ¶ 47.)

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Then, on March 5, 2015, BofI’s Vice President-Internal Audit—Erhart’s

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supervisor—resigned abruptly. (Ball Decl. ¶ 8, ECF No. 22; Erhart Decl. ¶ 51, ECF

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No. 67-5.) The next day, Erhart “felt very unwell” and “called off sick.” (Erhart Decl.

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¶ 53, ECF No. 67-5.) Erhart requested, and was granted by BofI, an unpaid leave of

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absence pursuant to the Family Medical Leave Act and the California Family Rights

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Act beginning on March 6, 2015. (Durrans Decl. ¶ 15, ECF No. 7-5.)

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At this time, Erhart “became extremely concerned that the Bank would try to

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destroy the records of wrongdoing that [he] had placed on the Bank’s computers.”

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(Erhart Decl. ¶ 55, ECF No. 67-5.) On March 6, 2015, Erhart sent an e-mail to his

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mother that included “a spreadsheet that contained BofI customer social security

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numbers.” (JSUF ¶ 6.) He states he sent the information to her for safekeeping.

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(Erhart Decl. ¶ 77, ECF No. 67-5.) Erhart’s mother briefly accessed the e-mail, but

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she did not forward it or otherwise share it with anyone. (Pamela Erhart Dep. 36:8–

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24, 58:2–15, ECF No. 67-7.)

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Erhart also contacted the Denver Regional Office of the United States

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Department of the Treasury’s Office of the Comptroller of the Currency (“OCC”)—

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BofI Federal Bank’s principal regulator. (Erhart Decl. ¶ 55, ECF No. 67-5.) After

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Erhart spoke with the OCC by phone, (id. ¶ 65), he later “provided documentary
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15cv2287

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evidence to the OCC that he claims supports his allegations of wrongdoing by BofI,”

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(JSUF ¶ 7). Further, on March 12, 2015, “Erhart downloaded to a personal USB drive

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BofI files, including OCC supervisory information, audit findings, draft audit

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committee meeting minutes, wire transfer details, and bank account information.”

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(Id. ¶ 8.) Erhart also used his live-in girlfriend’s computer to “access some BofI

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documents.” (Erhart Decl. ¶ 3, ECF No. 67-3.) He used her computer because it had

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software that he did not have installed on his computer. (Id.) Erhart’s girlfriend never

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viewed any of the BofI information placed on her computer, and she did not forward

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the information to anyone. (Cornell Decl. ¶ 2, ECF No. 67-2.)

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C.

Procedural History

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On April 14, 2015, Erhart filed a whistleblower protection complaint with the

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Occupational Safety and Health Administration. (JSUF ¶ 9.) Several months later,

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Erhart commenced his whistleblower retaliation action in this Court. (ECF No. 1 in

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Case No. 15-cv-02287.) In his Complaint, Erhart alleges BofI retaliated against him

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for reporting conduct he believed to be wrongful to the government. (Id.) Several

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days later, BofI filed its countersuit against Erhart. (ECF No. 1.) In its First Amended

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Complaint, BofI brings claims against Erhart for: (1) breach of contract; (2)

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conversion; (3) breach of the duty of loyalty; (4) negligence; (5) fraud; (6) violation

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of California Penal Code Section 502; (7) violation of the Computer Fraud and Abuse

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Act, 18 U.S.C. § 1030(a)(5); and (8) unfair business practices in violation of

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California Business & Professions Code Section 17220. (ECF No. 12.) On January

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4, 2016, Erhart answered BofI’s amended complaint, raising fifty-two affirmative

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defenses. (ECF No. 23.) The present motion concerns thirteen of these fifty-two

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affirmative defenses. (ECF No. 45.)

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15cv2287

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III.

LEGAL STANDARD

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“A party may move for summary judgment, identifying each claim or

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defense—or the part of each claim or defense—on which summary judgment is

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sought.” Fed. R. Civ. P. 56(a). Summary judgment is appropriate where the moving

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party demonstrates the absence of a genuine issue of material fact and entitlement to

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judgment as a matter of law. Id.; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322

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(1986). A fact is material when, under the governing substantive law, it could affect

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the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

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A dispute about a material fact is genuine if “the evidence is such that a reasonable

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jury could return a verdict for the nonmoving party.” Id.

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A party seeking summary judgment always bears the initial burden of

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establishing the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323.

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The moving party can satisfy this burden in two ways: (1) by presenting evidence

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that negates an essential element of the nonmoving party’s case; or (2) by

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demonstrating that the nonmoving party failed to make a showing sufficient to

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establish an element essential to that party’s case on which that party will bear the

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burden of proof at trial. Id. at 322–23. “Disputes over irrelevant or unnecessary facts

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will not preclude a grant of summary judgment.” T.W. Elec. Serv., Inc. v. Pac. Elec.

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Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987).

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If the moving party meets this initial burden, the nonmoving party cannot

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defeat summary judgment merely by demonstrating “that there is some metaphysical

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doubt as to the material facts.” Matsushita Electric Indus. Co. v. Zenith Radio Corp.,

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475 U.S. 574, 586 (1986); see also Triton Energy Corp. v. Square D Co., 68 F.3d

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1216, 1221 (9th Cir. 1995) (citing Anderson, 477 U.S. at 252) (“The mere existence

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of a scintilla of evidence in support of the nonmoving party’s position is not

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sufficient.”). Rather, the nonmoving party must “go beyond the pleadings and by . .

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. the ‘depositions, answers to interrogatories, and admissions on file,’ designate

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‘specific facts showing that there is a genuine issue for trial.’” Celotex, 477 U.S. at
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15cv2287

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324 (quoting former Fed. R. Civ. P. 56(e)).

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When making this determination, the court must view all inferences drawn

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from the underlying facts in the light most favorable to the nonmoving party.

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Matsushita, 475 U.S. at 587. “Credibility determinations, the weighing of the

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evidence, and the drawing of legitimate inferences from the facts are jury functions,

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not those of a judge, [when] he [or she] is ruling on a motion for summary judgment.”

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Anderson, 477 U.S. at 255.

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IV.

ANALYSIS

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BofI seeks to extinguish thirteen of Erhart’s affirmative defenses—all of

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which relate to whistleblower protections. (Mot. 1:1–13, ECF No. 45-1.) These

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defenses invoke a variety of statutes, including the Sarbanes–Oxley Act of 2002, the

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Fair Credit Reporting Act, and California Labor Code Section 1102.5. (Answer ¶¶

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111–123, ECF No. 23.) For each defense, Erhart alleges he cannot be held liable on

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BofI’s claims because he was engaged in protected activity as a whistleblower under

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the identified statute. (Id.) Several of these defenses, however, are based on statutes

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that do not contain whistleblower protections. Further, two of Erhart’s defenses are

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redundant of his other defenses. The Court addresses these sets of defenses first. The

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Court then turns to Erhart’s remaining whistleblower defenses.

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A.

Nonexistent Defenses

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Erhart’s Fourteenth, Fifteenth, Twenty-First, and Twenty-Second Affirmative

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Defenses allege his actions “constituted protected activity as a whistleblower” under

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the following authority: (1) laws and regulations administered by the OCC, (2) laws

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and regulations administered by the Internal Revenue Service, (3) the Gramm–

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Leach–Billey Act, and (4) the Fair Credit Reporting Act. (Answer ¶¶ 113–114, 120–

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121.) BofI argues these defenses fail as a matter of law because the identified

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authorities do not contain express whistleblower protections. (Mot. 19:5–21:13.) At
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oral argument, Erhart agreed. Accordingly, the Court will grant BofI’s request for

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summary adjudication of Erhart’s Fourteenth, Fifteenth, Twenty-First, and Twenty-

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Second Affirmative Defenses.

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B.

Redundant Defenses

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Erhart’s Thirteenth Affirmative Defense alleges his conduct “constituted

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protected activity as a whistleblower under the Dodd–Frank Act.” (Answer ¶ 112.)

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The Dodd–Frank Wall Street Reform and Consumer Protection Act created a

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whistleblower protection and reward program that the SEC is responsible for

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administering. 15 U.S.C. §78u-6. A separate defense, Erhart’s Eighteenth

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Affirmative Defense, seeks protection under the same authority by referencing laws

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and regulations administered by the SEC. (Answer ¶ 117.) Thus, Erhart’s Eighteenth

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Affirmative Defense is redundant.

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In addition, in his Sixteenth Affirmative Defense, Erhart alleges his conduct

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“constituted protected activity as a whistleblower” under laws and regulations

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administered by the Consumer Financial Protection Bureau. (Answer ¶ 115.) His

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Seventeenth Affirmative Defense invokes the same authority. (Id. ¶ 116.) Therefore,

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Erhart’s Seventeenth Affirmative Defense is also redundant.

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BofI recognizes these defenses are redundant, but it does not seek to dispose

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of them on that basis. (See Mot. 14:24–27, 15:25–27.) That said, this Court may “act

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on its own” to “strike from a pleading . . . any redundant . . . matter.” See Fed. R.

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Civ. P. 12(f)(1). Because Erhart’s Seventeenth and Eighteenth Affirmative Defenses

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are redundant, the Court concludes it is appropriate to strike them from his Answer.

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See id.

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15cv2287

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C.

Whistleblower Protection Defenses

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The remaining defenses BofI challenges share a common characteristic: each

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defense invokes a law that contains or incorporates protections for whistleblowers.3

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The Court construes Erhart’s defenses as invoking the following laws and anti-retaliation
provisions:
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Defense
No.

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Sarbanes–Oxley Act
of 2002

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Dodd–Frank Wall
Street Reform and
Consumer Protection
Act

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Identified Law

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Anti-Retaliation
Provision

General Description

Prohibits retaliation against a covered
person who reports conduct reasonably
18 U.S.C. § 1514A believed to be, inter alia, mail fraud,
wire fraud, bank fraud, or securities
fraud
Prohibits retaliation against a covered
person who reports conduct reasonably
15 U.S.C. § 78u-6 believed to be a possible securities law
violation or makes disclosures under
Sarbanes–Oxley’s provision

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Consumer Financial
Protection Bureau
Administered Laws
and Regulations
(Consumer Financial
Protection Act)

12 U.S.C. § 5567

Prohibits retaliation against a covered
person who reports violations of laws
subject to the Consumer Financial
Protection Bureau’s jurisdiction or
violations of its regulations

31 U.S.C. § 5328

Prohibits retaliation against a covered
person who reports violations of bank
recordkeeping and reporting
requirements and anti-money
laundering provisions

12 U.S.C. § 1831j

Prohibits retaliation against a covered
person who reports a possible violation
of law, “gross mismanagement, a gross
waste of funds, an abuse of authority,
or a substantial and specific danger to
public health or safety”

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Bank Secrecy Act

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Federal Deposit
Insurance Corporation
Administered Laws
and Regulations
(Financial Institutions
Reform, Recovery,
and Enforcement Act)

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California Labor Code
Section 1102.5

Cal. Labor Code §
1102.5(b)

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Common Law

Not Applicable

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Prohibits retaliation against a covered
person who reports violations of state
or federal law
May prohibit imposing tort or contract
liability on a whistleblower where
doing so would be against public
policy
15cv2287

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BofI argues all of these defenses fail because at least some of Erhart’s conduct

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cannot be considered protected whistleblower activity as a matter of law.

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Whether Erhart’s defenses fail necessarily depends on the claims they are

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being asserted against. Although BofI asserts a variety of tort, contract, and statutory

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claims against him, Erhart mainly focuses on demonstrating that his defenses may

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defeat BofI’s first claim for breach of contract in his opposition. (See Opp’n 1:18–

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27, 4:2–5:8, 8:17–22.) The Court will primarily analyze Erhart’s defenses in the

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context of this claim because it provides a framework for addressing the public

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policy issues raised by Erhart.

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1.

Breach of the Confidentiality Agreement

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BofI’s first claim for breach of contract is based on the Confidentiality

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Agreement executed by Erhart at the start of his employment. (First Am. Compl. ¶¶

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47–53.) It is undisputed that California state law governs this agreement.

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(Confidentiality Agreement § 12.) To prevail on a claim for breach of contract under

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California law, “the plaintiff must prove (1) the contract, (2) the plaintiff’s

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performance of the contract or excuse for nonperformance, (3) the defendant’s

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breach, and (4) the resulting damage to the plaintiff.” Richman v. Hartley, 224 Cal.

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App. 4th 1182, 1186 (2014).

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Erhart’s whistleblower defenses allege Erhart cannot be held liable on BofI’s

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claim because the law protects Erhart’s conduct. Stated differently, these defenses

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allege enforcing the Confidentiality Agreement in these circumstances would be

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illegal. If “the illegality of a contract does not appear from the face of the complaint

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it becomes a matter of affirmative defense . . . . And in such case the burden of proof

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is on the defendant.” Fellom v. Adams, 274 Cal. App. 2d 855, 863 (1969) (quoting

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Eaton v. Brock, 124 Cal. App. 2d 10, 13 (1954)); see also Sweeney v. KANS, Inc.,

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247 Cal. App. 2d 475, 480 (1966) (“Defendant’s contention of illegality is, of course,

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an affirmative defense. The burden of establishing this defense was, therefore, on
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the defendant.”). Here, the illegality of the Confidentiality Agreement does not

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appear on the face of BofI’s First Amended Complaint. (See First Am. Compl. ¶¶ 7–

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46.) For instance, BofI does not allege that it is seeking to enforce the agreement

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despite that Erhart was using BofI’s confidential information to support his reports

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of believed wrongdoing to the government. (See id.) Thus, the Court construes

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Erhart’s whistleblower defenses as each raising a variation of the affirmative defense

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of illegality—the position that enforcing the Confidentiality Agreement would be

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against public policy.

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“The law has a long history of recognizing the general rule that certain

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contracts, though properly entered into in all other respects, will not be enforced, or

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at least will not be enforced fully, if found to be contrary to public policy.” Kashani

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v. Tsann Kuen China Enter. Co., 118 Cal. App. 4th 531, 540 (2004) (alteration

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omitted) (quoting 15-79 Corbin on Contracts § 79.1 (2003)); see also Lee On v.

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Long, 37 Cal. 2d 499, 502 (1951) (“No principle of law is better settled than that a

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party to an illegal contract cannot come into a court of law and ask to have his illegal

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objects carried out[.]”). To determine whether a contract is unenforceable based on

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public policy, California courts “essentially engage in a weighing process, balancing

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the interests of enforcing the contract with those interests against enforcement.”

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Rosen v. State Farm Gen. Ins. Co., 30 Cal. 4th 1070, 1082 (2003). Accordingly, “the

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question of whether a contract provision is illegal or contrary to public policy ‘is a

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question of law to be determined from the circumstances of each particular case.’”

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Brisbane Lodging, L.P. v. Webcor Builders, Inc., 216 Cal. App. 4th 1249, 1256–57

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(2013) (quoting Jackson v. Rogers & Wells, 210 Cal. App. 3d 336, 349–350 (1989)).

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However, California courts have cautioned that the “power to void a contract should

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be exercised only where the case is free from doubt.” Kaufman v. Goldman, 195 Cal.

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App. 4th 734, 746 (2011) (citing City of Santa Barbara v. Superior Court, 41 Cal.

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4th 747, 777 n.53 (2007)).

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In making this determination under California law, courts have often relied on

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Section 178 of the Restatement (Second) of Contracts. See, e.g., Kashani, 118 Cal.

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App. 4th at 551; Cariveau v. Halferty, 83 Cal. App. 4th 126, 131–32 (2000); Bovard

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v. Am. Horse Enters., Inc., 201 Cal. App. 3d 832, 840 (1988). This section states: “A

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promise or other term of an agreement is unenforceable on grounds of public policy

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if legislation provides that it is unenforceable or the interest in its enforcement is

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clearly outweighed in the circumstances by a public policy against the enforcement

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of such terms.” Restatement (Second) of Contracts § 178 (1981). The Restatement

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lists a series of factors to be considered when making this determination, including

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“any special public interest in the enforcement of the particular term” and the

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strength of the public policy against enforcement of the term “as manifested by

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legislation or judicial decisions.” Id.

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The public policy advanced to prevent the enforcement of a contract term may

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be based on a variety of sources. E.g., Kashani, 118 Cal. App. 4th at 542 (“For

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purposes of illegality, the ‘law’ is a broad term.”). It may be based on the “policy

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expressed in a statute” or “may be implied from the language of such statute[.]”

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Cariveau, 83 Cal. App. 4th at 132. A public policy may also “be enunciated in

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administrative regulations that serve the statutory objective.” Green v. Ralee Eng’g

19

Co., 19 Cal. 4th 66, 80 (1998). In addition, “California law includes federal law.”

20

Kashani, 118 Cal. App. 4th at 543 (citing People v. Sischo, 23 Cal. 2d 478, 491

21

(1943)). Thus, California courts have refused to enforce contract terms in light of

22

public policies that are based on federal statutes, regulations, and rules. See

23

generally, Green, 19 Cal. 4th 66 (Federal Aviation Administration regulations);

24

Cariveau, 83 Cal. App. 4th 126 (federal securities law and rules); Kashani, 118 Cal.

25

App. 4th 531 (executive orders promulgated under the International Emergency

26

Economy Powers Act, 50 U.S.C. § 1701).

27

//

28

//
– 13 –

15cv2287

1

For example, a settlement agreement’s confidentiality clause that prohibits a

2

securities customer “from discussing the selling agent’s misconduct with regulatory

3

authorities” is unenforceable on grounds of federal public policy. Cariveau, 83 Cal.

4

App. 4th at 128. In Cariveau, a securities agent subject to the rules of the National

5

Association of Securities Dealers, Inc. (“NASD”) recommended inappropriate

6

investments to an investor. Id. at 128. As a condition to returning the investor’s

7

money, the agent required the investor to enter into a settlement agreement providing

8

that “the underlying events resulting in the negotiation of this Agreement shall

9

remain . . . confidential . . . and shall not be disclosed . . . to any public or private

10

person or entity, or to any administrative, law enforcement or regulatory agency.”

11

Id. at 129. The investor later wrote a letter to the agent’s employer, which led to the

12

agent’s termination, an NASD investigation, and NASD sanctions against the agent.

13

Id. at 130. The agent responded by suing the investor for breach of contract based

14

on the investor’s disclosure of information in violation of the settlement agreement’s

15

confidentiality clause. Id.

16

“The trial court refused to enforce the clause on grounds of public policy,”

17

and the California Court of Appeal affirmed. Cariveau, 83 Cal. App. 4th at 128. In

18

doing so, the court looked to the former NASD Rules of Fair Practice, which “are

19

derived from, and carry out the purposes of, the Securities Exchange Act of 1934.”

20

Id. at 133. These rules “require[d] reporting outside business activities to a member’s

21

employer so that the employer can maintain effective oversight of the activities. The

22

rules also encourage[d] aggrieved investors to report wrongdoing so that the

23

integrity of the system is preserved.” Id. Because these rules served statutory

24

objectives, they were “a valid source of public policy.” Id. at 134. In weighing the

25

interest in enforcing the settlement agreement against the public policy, the court

26

noted “[t]he only interest appellant identifies in support of the contract term is the

27

general policy in favor of promoting the settlement of disputes.” Id. at 136.

28

Balancing against this interest was “the policy of maintaining an honest and fair
– 14 –

15cv2287

1

national marketplace in securities,” which “has been declared as a ‘national public

2

interest’ in the Securities Exchange Act of 1934.” Id. (citing 15 U.S.C. § 78b). After

3

applying the factors in Section 178 of the Restatement (Second) of Contracts and

4

reasoning that the “inclusion of a restrictive confidentiality clause in the [Settlement]

5

Agreement . . . is an instance of misconduct in itself,” the court concluded the

6

agreement was unenforceable on grounds of public policy. Id. at 137–38.

7

Here, as mentioned above, Erhart argues his affirmative defenses should

8

survive summary adjudication because the Confidentiality Agreement is

9

unenforceable on public policy grounds. (Opp’n 4:1–5:28.) Accordingly, the Court

10

considers the interest in enforcing the Confidentiality Agreement, the public policy

11

against enforcement, and whether the public policy clearly outweighs the interest in

12

favor of enforcement.

13

a.

14

Interest in the Enforcement of the Confidentiality
Agreement

15
16

The Court starts by weighing “the interest in the enforcement” of the

17

Confidentiality Agreement. See Restatement (Second) of Contracts § 178 (1981).

18

The Court finds there is a strong interest in enforcing the Confidentiality Agreement

19

because it serves several legitimate interests. First, enforcing the Confidentiality

20

Agreement supports the “longstanding established public policy in California which

21

respects and promotes the freedom of private parties to contract.” Brisbane Lodging,

22

216 Cal. App. 4th at 1262; see also Carma Developers (Cal.), Inc. v. Marathon Dev.

23

Cal., Inc., 2 Cal. 4th 342, 363 (1992) (citing In re Garcelon’s Estate, 104 Cal. 570,

24

591 (1894)) (“[I]f there is one thing which more than another public policy requires,

25

it is that [persons] of full age and competent understanding shall have the utmost

26

liberty of contract, and that their contracts when entered into freely and voluntarily

27

shall be held sacred, and shall be enforced by courts of justice.”).

28

//
– 15 –

15cv2287

1

Second, enforcing the Confidentiality Agreement furthers the “significant

2

government interests” promoted by legal protection of trade secrets. See DVD Copy

3

Control Ass’n, Inc. v. Bunner, 31 Cal. 4th 864, 885 (2003). These interests include

4

promoting the sharing of knowledge, incentivizing innovation, and maintaining

5

commercial ethics. Id. at 880–81. Although trade secret and contract law provide

6

separate remedies, see Cal. Civ. Code § 3426.7(b), the two are often intertwined. To

7

obtain trade secret protection, information must be “the subject of efforts that are

8

reasonable under the circumstances to maintain its secrecy.” Cal. Civ. Code §

9

3426.1(d). One reasonable step to ensure secrecy is to require “employees to sign

10

confidentiality agreements” because they can be used to prevent the disclosure of

11

trade secret information. See Whyte v. Schlage Lock Co., 101 Cal. App. 4th 1443,

12

1454 (2002) (citing MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511, 521

13

(9th Cir.1993)); see also Alan J. Tracey, The Contract in the Trade Secret Ballroom-

14

A Forgotten Dance Partner?, 16 Tex. Intell. Prop. L.J. 47, 48–51 (2007)

15

(summarizing the value of non-disclosure agreements in connection with the

16

Uniform Trade Secrets Act). Here, at least some of BofI’s files taken by Erhart, such

17

as BofI’s Fiscal 2015 Strategic Plan, contain information likely entitled to trade

18

secret protection. See, e.g., Whyte, 101 Cal. App. 4th at 1456 (holding company’s

19

strategic plan documents are trade secrets under California law). Thus, allowing BofI

20

to enforce the Confidentiality Agreement where Erhart has appropriated documents

21

with trade secret information furthers the interests promoted by legal protection of

22

trade secrets.

23

Third, enforcing the Confidentiality Agreement serves the government

24

interest in protecting nonpublic personal information possessed by BofI. Under 15

25

U.S.C. § 6801, “[i]t is the policy of Congress that each financial institution has an

26

affirmative and continuing obligation to respect the privacy of its customers and to

27

protect the security and confidentiality of those customers’ nonpublic personal

28

information.” It is undisputed that Erhart appropriated files containing customers’
– 16 –

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1

nonpublic personal information. He sent an e-mail from his personal e-mail account

2

to a third party, his mother, containing a spreadsheet with BofI customers’ social

3

security numbers. (JSUF ¶ 6.) Thus, enforcing the Confidentiality Agreement

4

furthers this interest.

5

Fourth, BofI has an interest in protecting other confidential business

6

information that may not qualify for trade secret protection. See O’Day v. McDonnell

7

Douglas Helicopter Co., 79 F.3d 756, 763 (9th Cir. 1996) (recognizing an

8

employer’s “strong interest” in discouraging an employee from taking sensitive

9

personnel documents, “copying those documents and showing them to a co-worker”

10

in the context of a retaliation claim under the Age Discrimination in Employment

11

Act); see also Winston Research Corp. v. Minn. Mining & Mfg. Co., 350 F.2d 134,

12

138 (9th Cir. 1965) (“Unless protection is given against unauthorized disclosure of

13

confidential business information by employees, employee-employer relationships

14

will be demoralized [and] employers will be compelled to limit communication

15

among employees with a consequent loss in efficiency . . . .”). Enforcing the

16

Confidentiality Agreement furthers this interest as well.

17
18

Based on the foregoing, the Court concludes there is a significant interest in
the enforcement of the Confidentiality Agreement.

19
20
21

b.

Public Policy against Enforcement of the
Confidentiality Agreement

22

Next, the Court weighs the “public policy against enforcement” of the

23

Confidentiality Agreement. See Restatement (Second) of Contracts § 178 (1981).

24

Both California state and federal law, including those laws specifically identified by

25

Erhart’s defenses, reflect the strong public policy in favor of protecting

26

whistleblowers. California Labor Code Section 1102.5(b), invoked by Erhart’s

27

Twenty-Third Affirmative Defense, is “California’s general whistleblower statute.”

28

Carter v. Escondido Union High Sch. Dist., 148 Cal. App. 4th 922, 933 (2007). It
– 17 –

15cv2287

1

forbids retaliation against an employee who discloses “information to a government

2

or law enforcement agency, where the employee has reasonable cause to believe that

3

the information discloses a violation of state or federal statute, or a violation or

4

noncompliance with a state or federal rule or regulation.” Cal. Labor Code §

5

1102.5(b). “This provision reflects the broad public policy interest in encouraging

6

workplace whistle blowers to report unlawful acts without fearing retaliation.”

7

Green, 19 Cal. 4th at 77.

8

This policy is similarly reflected in federal law invoked by Erhart’s other

9

whistleblower defenses. Under Sarbanes–Oxley’s anti-retaliation provision, raised

10

by Erhart’s Twelfth Affirmative Defense, no covered company may retaliate against

11

an employee who provides certain information to “a Federal regulatory or law

12

enforcement agency” or “a person with supervisory authority over the employee . . .

13

.” 18 U.S.C. § 1514A; see also Lawson v. FMR LLC, 134 S. Ct. 1158, 1161 (2014)

14

(discussing the public purpose underlying Sarbanes–Oxley and its anti-retaliation

15

provision). This provision demonstrates the “public policy in favor of

16

whistleblowers in securities cases.” See In re JDS Uniphase Corp. Sec. Litig., 238

17

F. Supp. 2d 1127, 1136 (N.D. Cal. 2002). Dodd–Frank’s whistleblower protection

18

program, 15 U.S.C. § 78u–6, which contains an “anti-retaliation provision [that]

19

appears to sweep more broadly” than Sarbanes–Oxley’s provision and is identified

20

in Erhart’s Thirteenth Affirmative Defense, also reflects the strong public policy in

21

favor of protecting whistleblowers. See Wadler v. Bio-Rad Labs., Inc., 141 F. Supp.

22

3d 1005, 1014 (N.D. Cal. 2015). Regulations promulgated under Dodd–Frank

23

expressly preclude parties, including employers, from interfering with Dodd–

24

Frank’s whistleblower program. Specifically, Rule 21F-17(a) states:

25
26
27
28

No person may take any action to impede an individual from
communicating directly with the [SEC] staff about a possible securities
law violation, including enforcing, or threatening to enforce, a
confidentiality agreement . . . with respect to such communications.
17 C.F.R. § 240.21F-17; see also Richard Moberly et al., De Facto Gag Clauses:
– 18 –

15cv2287

1

The Legality of Employment Agreements That Undermine Dodd-Frank’s

2

Whistleblower Provisions, 30 ABA J. Lab. & Emp. L. 87, 87–92 (2014) (discussing

3

Dodd–Frank’s whistleblower program and SEC Rule 21F-17).

4
5

Accordingly, both federal and state law reflect a strong public policy in favor
of whistleblowing and protecting whistleblowers from retaliation.

6
7

c.

Balancing the Enforcement Interest and Public Policy

8

Last, the Court considers whether the interest in the enforcement of the

9

Confidentiality Agreement is “clearly outweighed in the circumstances by a public

10

policy against the enforcement” of the agreement. See Restatement (Second) of

11

Contracts § 178 (1981). In these circumstances, Erhart engaged in a variety of

12

conduct where he used information that he gained access to during his employment.

13

Hence, the Court considers separately below whether the public policy in favor of

14

whistleblower protection clearly outweighs the interest in the enforcement of the

15

Confidentiality Agreement as to Erhart’s conduct in (1) providing information to the

16

government, (2) appropriating BofI’s files, (3) sending BofI’s information to his

17

mother and placing BofI’s information on his live-in girlfriend’s computer, (4)

18

purportedly providing information to the press, and (5) disclosing information in his

19

publicly-filed whistleblower retaliation complaint.

20
21

Erhart’s Communications with the Government

22

The Court first considers Erhart’s conduct in providing information to the

23

government—the SEC and the OCC. (See JSUF ¶¶ 1, 2, 7.) Erhart disclosed BofI’s

24

information to the government in reporting believed wrongdoing at the bank. (See

25

id. ¶¶ 1, 2.) Viewing the evidence in the light most favorable to Erhart, this conduct

26

qualifies for protection under one or more of the whistleblower protection provisions

27

relied upon by the Court as sources of public policy. See, e.g., Cal. Lab. Code §

28

1102.5(b). In addition, any attempt to enforce the agreement as to this conduct would
– 19 –

15cv2287

1

violate the SEC’s rule prohibiting BofI from “enforcing, or threatening to enforce, a

2

confidentiality agreement” to impede Erhart from communicating with the SEC. See

3

17 C.F.R. § 240.21F-17. Consequently, as to these actions, the public policy in favor

4

of whistleblower protection clearly outweighs the interest in the enforcement of the

5

agreement, and the agreement is unenforceable. See Cariveau, 83 Cal. App. 4th at

6

138; see also Green, 19 Cal. 4th at 77.

7

Erhart’s Appropriation of BofI’s Files

8
9

Next, the Court considers Erhart’s conduct in appropriating various files from

10

BofI. (See JSUF ¶¶ 3–5, 7.) In light of the strong interests in favor of enforcing

11

confidentiality agreements and the public policy of whistleblower protection, courts

12

are split on whether confidentiality agreements should be enforced in contexts

13

involving comparable conduct.4 For example, in JDS Uniphase Corp. v. Jennings,

14

473 F. Supp. 2d 697, 702 (E.D. Va. 2007), the court applied California law and

15

enforced a confidentiality agreement despite the employee’s counterclaim for

16

whistleblower retaliation under Sarbanes–Oxley. The court reasoned that the public

17

policy in favor of whistleblowing cannot “fairly be said to authorize disgruntled

18

employees to pilfer a wheelbarrow full of an employer’s proprietary documents in

19

violation of their contract merely because it might help them blow the whistle on an

20

employer’s violations of law, real or imagined.” Id. In the court’s view:

21
22
23
24
25
26
27
28

Endorsing such theft or conversion would effectively invalidate most
confidentiality agreements, as employees would feel free to haul away
proprietary documents, computers, or hard drives, in contravention of
their confidentiality agreements, knowing they could later argue they
needed the documents to pursue suits against employers under a variety
4

Compare Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1062 (9th
Cir. 2011); Zahodnick v. Int’l Bus. Machines Corp., 135 F.3d 911, 915 (4th Cir. 1997); and JDS
Uniphase Corp. v. Jennings, 473 F. Supp. 2d 697, 702 (E.D. Va. 2007); with Shmushkovich v.
Home Bound Healthcare, Inc., No. 12 C 2924, 2015 WL 3896947, at *1 (N.D. Ill. June 23, 2015);
Siebert v. Gene Sec. Network, Inc., No. 11-CV-01987-JST, 2013 WL 5645309, at *8 (N.D. Cal.
Oct. 16, 2013); and U.S. ex rel. Ruhe v. Masimo Corp., 929 F. Supp. 2d 1033, 1039 (C.D. Cal.
2012).
– 20 –
15cv2287

of statutes protecting employees from retaliation for publicly reporting
wrongdoing, such as Sarbanes–Oxley (18 U.S.C. § 1514A), the False
Claims Act (31 U.S.C. § 3730), . . . or other statutes prohibiting retaliation
for activity in opposition to discrimination.

1
2
3
4

Id.

5

Other courts, particularly in the context of actions brought under the False

6

Claims Act, have refused to enforce a confidentiality agreement on public policy

7

grounds. In Ruhe, the district court declined to strike exhibits appended to the

8

relators’ complaint that the defendant argued were taken and disclosed in violation

9

of non-disclosure agreements. Ruhe v. Masimo Corp., 929 F. Supp. 2d 1033, 1038–

10
11
12
13
14
15

39 (C.D. Cal. 2012). The court explained that:
Relators sought to expose a fraud against the government and limited
their taking to documents relevant to the alleged fraud. Thus, this taking
and publication was not wrongful, even in light of nondisclosure
agreements, given “the strong public policy in favor of protecting
whistleblowers who report fraud against the government.” Obviously, the
strong public policy would be thwarted if [the defendant] could silence
whistleblowers and compel them to be complicit in potentially fraudulent
conduct.

16
17

Id. at 1039 (citation omitted) (quoting United States v. Cancer Treatment Ctrs. of

18

Am., 350 F. Supp. 2d 765, 773 (N.D. Ill. 2004)); see also Siebert v. Gene Sec.

19

Network, Inc., No. 11-CV-01987-JST, 2013 WL 5645309, at *8 (N.D. Cal. Oct. 16,

20

2013) (“The Court agrees that any alleged obligation by [the relator] not to retain or

21

disclose the confidential documents that form the basis of this action is

22

unenforceable as a matter of public policy because it would frustrate Congress’

23

purpose in enacting the False Claims Act.”).

24

In Cafasso, United States ex rel. v. General Dynamics C4 Systems Inc., 637

25

F.3d 1047, 1062 (9th Cir. 2011), the Ninth Circuit stated there is “some merit” in a

26

public policy exception to a confidentiality agreement. There, the relator Cafasso

27

executed a confidentiality agreement at the start of her employment that contained a

28

confidentiality provision similar to that agreed to by Erhart. See id. at 1061. After
– 21 –

15cv2287

1

Cafasso copied various documents and instituted a False Claims Act (“FCA”) case

2

against her former employer after her termination, the employer counterclaimed that

3

Cafasso’s “appropriation of electronic documents and files” violated the

4

confidentiality agreement. Id. The district court granted summary judgment in favor

5

of the employer. Id.

6

On appeal, Cafasso, like Erhart, admitted to appropriating files covered by the

7

confidentiality agreement but, also like Erhart, argued for a public policy exception

8

to the enforcement of the contract. Cafasso, 637 F.3d at 1061–62. The Ninth Circuit

9

declined to decide whether to adopt an exception, but, in recognizing that a public

10

policy exception had “some merit,” the Ninth Circuit forecasted that “[e]ven were

11

we to adopt such an exception, it would not cover Cafasso’s conduct given her vast

12

and indiscriminate appropriation” of files. Id. at 1062. The court noted that “Cafasso

13

copied nearly eleven gigabytes of data—tens of thousands of pages,” and “she

14

scanned only file names and ‘did not look at any individual documents at all.’” Id.

15

“An exception broad enough to protect the scope of Cafasso’s massive document

16

gather in this case would make all confidentiality agreements unenforceable as long

17

as the employee later files a qui tam action.” Id. (citing JDS Uniphase Corp, 473 F.

18

Supp. 2d at 702). In affirming the district court, the Ninth Circuit provided the

19

following guidance:

20
21
22
23
24
25
26

Were we to adopt a public policy exception to confidentiality agreements
to protect relators—a matter we reserve for another day—those asserting
its protection would need to justify why removal of the documents was
reasonably necessary to pursue an FCA claim . . . . The need to facilitate
valid claims does not justify the wholesale stripping of a company’s
confidential documents. Although courts perhaps should consider in
particular instances for particular documents whether confidentiality
policies must give way to the needs of FCA litigation for the public’s
interest, Cafasso’s grabbing of tens of thousands of documents here is
overbroad and unreasonable, and cannot be sustained by reference to a
public policy exception.

27

Id.; see also Richard Moberly et al., De Facto Gag Clauses: The Legality of

28

Employment Agreements That Undermine Dodd-Frank’s Whistleblower Provisions,
– 22 –

15cv2287

1

30 ABA J. Lab. & Emp. L. 87, 113 (2014) (citing In re JDS Uniphase Corp. Secs.

2

Litig., 238 F. Supp. 2d 1127, 1136 (N.D. Cal. 2002)) (noting courts “recognize that

3

the federal interest in whistleblowing can trump employers’ otherwise legitimate

4

desire to protect confidential documents when there is a reasonable connection

5

between the documents and the alleged securities violation”).

6

Here, the Court concludes there is merit to a public policy exception to

7

confidentiality agreements to protect whistleblowers who appropriate company

8

documents. As discussed above, the Court recognizes the strong interest in the

9

enforcement of confidentiality agreements like the one signed by Erhart. But at the

10

same time, whistleblowers often need documentary evidence to substantiate their

11

allegations. As several commentators have noted in the context of whistleblower tips

12

submitted to the SEC:

13

Relevant documents taken from an employer not only can provide
potentially valuable evidence of a possible securities violation, but also
can help the SEC confirm the veracity of the whistleblower’s information
and better distinguish between tips that warrant significant attention and
those that do not. This is a critical function because the SEC received over
3,200 tips through the SEC Whistleblower Program in fiscal year 2013
alone, and receives tens of thousands of other tips and referrals through
other means, such as investor complaints.

14
15
16
17
18
19
20

Richard Moberly et al., De Facto Gag Clauses: The Legality of Employment

21

Agreements That Undermine Dodd-Frank’s Whistleblower Provisions, 30 ABA J.

22

Lab. & Emp. L. 87, 115 (2014). Allowing a whistleblower to appropriate documents

23

supporting believed wrongdoing also mitigates the possibility that evidence of the

24

wrongdoing will be destroyed before an investigation can be conducted. Cf. United

25

States v. Arthur Andersen, LLP, 374 F.3d 281, 286 (5th Cir. 2004) (discussing

26

accounting firm Arthur Andersen’s shredding of two tons of documents on the eve

27

of the SEC’s investigation into Enron), reversed on other grounds at 544 U.S. 696.

28

//
– 23 –

15cv2287

1

Further, the qualified approach forecasted by the Ninth Circuit strikes an

2

appropriate balance between these interests. This type of “more nuanced approach”

3

focuses on “the nexus between the confidential documents in question and the

4

misconduct alleged by the whistleblower.” See Richard Moberly et al., De Facto

5

Gag Clauses: The Legality of Employment Agreements That Undermine Dodd-

6

Frank’s Whistleblower Provisions, 30 ABA J. Lab. & Emp. L. 87, 110 (2014). Under

7

this approach, the burden is on the party seeking to invoke the public policy

8

exception “to justify why removal of the documents was reasonably necessary” to

9

support the allegations of wrongdoing. See Cafasso, 637 F.3d at 1062. In this Court’s

10

view, this determination is a question of fact, but one that can be made as a matter

11

of law when a reasonable jury could only reach one conclusion. See id. (“Even were

12

we to adopt such an exception, it would not cover Cafasso’s conduct given her vast

13

and indiscriminate appropriation of [company] files.”).

14

In this case, Erhart states he “was very careful in [selecting] the information

15

[he] accessed and turned over. Each document was specifically related to one of the

16

allegations of wrongdoing [he] had discussed with [his supervisor] and then reported

17

to federal law enforcement.” (Erhart Decl. ¶ 79, ECF No. 67-5.) Further, Erhart

18

states “every document” he used was one he “had properly accessed in the course of

19

performing [his] work as an internal auditor,” as directed by his immediate

20

supervisor. (Id.) The Court, having previously reviewed lists of files taken by Erhart,

21

notes many do appear to be related to his allegations of believed wrongdoing. (See

22

ECF No. 21.)

23

Viewing the evidence in the light most favorable to Erhart, summary

24

adjudication of his defenses based on this conduct is not warranted. BofI has not

25

demonstrated Erhart engaged in a “wholesale stripping of [BofI]’s confidential

26

documents”—or that his appropriation of its files was “vast and indiscriminate.” See

27

Cafasso, 637 F.3d at 1062. Thus, it is possible that a public policy exception may

28

cover Erhart’s conduct, and there is a genuine issue for trial as to whether Erhart’s
– 24 –

15cv2287

1

removal of documents was “reasonably necessary” to support his allegations of

2

wrongdoing. See Cafasso, 637 F.3d at 1062. This issue may also be inextricably

3

intertwined with whether a jury concludes Erhart’s beliefs of wrongdoing were

4

reasonable. In sum, to the extent BofI’s claim is predicated on Erhart’s appropriation

5

of files to support his allegations of believed wrongdoing, his whistleblower

6

defenses survive BofI’s request for summary adjudication.

7
8

Erhart’s Transmission of Confidential

9

Information to His Mother and Use of Live-in

10

Girlfriend’s Computer

11

The Court turns to Erhart’s conduct in e-mailing confidential information to

12

his mother and using his live-in girlfriend’s computer to access BofI documents.

13

(JSUF ¶¶ 6, 13–14.) In a different procedural context, the Fourth Circuit discussed

14

analogous conduct in Deltek, Inc. v. Department of Labor, Administrative Review

15

Board, 649 F. App’x 320, 324 (4th Cir. 2016). There, the plaintiff alleged she was

16

terminated in violation of Sarbanes–Oxley’s whistleblower protection provision, 18

17

U.S.C. § 1514A. Id. at 322. The defendant employer discovered that the plaintiff had

18

e-mailed company documents to her home e-mail account, which was shared by her

19

husband, in violation of her employment contract and company policies. Id. at 332.

20

Thus, the company argued the after-acquired evidence doctrine applied. Id. at 331.

21

This doctrine allows an employer in a retaliation case to limit its liability if evidence

22

discovered after termination would have led to the termination had the company

23

known of the evidence earlier. Id.; see also McKennon v. Nashville Banner Pub. Co.,

24

513 U.S. 352, 361–62 (1995). The Administrative Law Judge (“ALJ”) rejected the

25

defendant’s argument, however, and the Department of Labor’s Administrative

26

Review Board affirmed. Deltek, 649 Fed. App’x at 332.

27

Under the deferential substantial evidence standard, the Fourth Circuit

28

affirmed. Deltek, 649 Fed. App’x at 331–33. The court noted that the ALJ made
– 25 –

15cv2287

1

“specific findings, affirmed by the Board, that [the plaintiff] forwarded to her home

2

account only documents that were relevant to her whistleblowing reports; that when

3

she did so, she had a reasonable concern that the documents might be shredded by

4

[company] employees or otherwise destroyed; and that [the plaintiff’s] motivation

5

for forwarding the documents was ‘to support her [Sarbanes–Oxley] allegations.’”

6

Id. at 332 (third alteration in original). The court also noted the plaintiff, after

7

complaining of retaliation to the company’s general counsel, had been directed to

8

gather information to support her internal complaint. Id. “[I]n light of the specific

9

factual findings of the ALJ and the Board,” the Fourth Circuit agreed that the

10

plaintiff’s “effort to protect select relevant documents” would not have justified her

11

termination, and it affirmed. Id.

12

The Ninth Circuit’s decision in O’Day v. McDonnell Douglas Helicopter Co.,

13

79 F.3d 756, 763 (9th Cir. 1996), discussed contrasting circumstances in another

14

context. In that case, the plaintiff brought suit alleging employment discrimination

15

under the Age Discrimination in Employment Act (“ADEA”). Id. at 765. He “was

16

convinced he had been denied [a] promotion and laid off because of his age.” Id. at

17

758. “The evening after he was denied the promotion,” the plaintiff “searched his

18

supervisor’s office. Ostensibly, he was looking for his own personnel file (to which

19

access was restricted), but while he was rummaging through his supervisor’s desk,

20

[the plaintiff] came across other documents he found interesting, including his

21

supervisor’s promotion recommendations and a handwritten list ranking employees

22

for layoff (a so-called ‘totem’ list).” Id. The plaintiff “photocopied the handwritten

23

‘totem’ list along with several other documents, and later showed them to another

24

employee who had been slated for layoff.” Id.

25

After the defendant discovered these actions in discovery, the company,

26

similar to the defendant in Deltek, argued the plaintiff’s later-discovered misconduct

27

“absolved the company of all liability for its alleged discrimination.” O’Day, 79 F.3d

28

at 758. In response, the plaintiff claimed he was engaged in protected activity under
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the ADEA’s opposition clause, which “protects reasonable attempts to contest an

2

employer’s discriminatory practices.” Id. at 763. In applying a balancing test, the

3

court concluded the plaintiff’s conduct was not protected activity. Id. It reasoned the

4

plaintiff “committed a serious breach of trust, not only in rummaging through his

5

supervisor’s office for confidential documents, but also in copying those documents

6

and showing them to a co-worker.” Id. Further, although the plaintiff had an interest

7

in preserving evidence of the defendant’s unlawful employment practices, that

8

interest did not “explain why he showed the purloined documents to a co-worker

9

who had been slated for lay-off, or why he felt compelled to preserve evidence of

10

[the defendant’s] lay-off decisions,” given that he had not yet been laid off. Id. Thus,

11

the court rejected the plaintiff’s protected activity argument. Id. at 764.

12

Here, it is undisputed that Erhart sent an e-mail to his mother that included a

13

spreadsheet containing BofI customers’ social security numbers. (JSUF ¶ 6.)

14

Although this e-mail was briefly accessed by his mother, she did not print it, forward

15

it, or otherwise provide it to anyone. (Pamela Erhart Dep. 36:8–24, 58:2–15, ECF

16

No. 67-7.) In his declaration, Erhart states he was “fearful that the Bank would delete

17

or alter material information, based on what [he’d] seen management do in the past.”

18

(Erhart Decl. ¶ 76, ECF No. 67-5.) In addition, Erhart states he was informed that

19

the bank was breaking into the locked cabinets and computer at his workstation,

20

where he had documented instances of believed wrongdoing. (Id. ¶¶ 46, 55–56.)

21

Further, around this time, Erhart states he “feared upper management had accessed

22

[his] work laptop remotely.” (Id. ¶ 57.) Thus, Erhart states he sent his mother “a copy

23

of some information to hold for safekeeping because [he] was fearful, in case

24

something happened to [him] or that information.” (Id. ¶ 77.) Viewing the evidence

25

in the light most favorable to Erhart, the Court concludes a factfinder could

26

determine that the information transmitted by Erhart was relevant to his

27

whistleblower reports, that this information was transmitted because he had a

28

reasonable concern the information might be destroyed, and that Erhart’s motivation
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for forwarding the information was to support his allegations of wrongdoing. See

2

Deltek, 649 Fed. App’x at 331–32. Moreover, unlike the circumstances in O’Day,

3

where the plaintiff showed a confidential layoff list to an employee who was slated

4

to be laid off, there is no evidence of a competing motive for Erhart’s transmission

5

of confidential bank information to his mother—she had no reason to personally

6

benefit from receiving this information.

7

If the jury concludes Erhart’s conduct was to protect relevant information

8

from what he reasonably perceived was a risk of destruction, then the public policy

9

in favor of whistleblowing clearly outweighs the interest in enforcement of the

10

Confidentiality Agreement in these specific circumstances—rendering the

11

agreement unenforceable. If, however, the opposite determination is reached, the

12

calculus shifts in favor of enforcement, and BofI may recover for breach of the

13

Confidentiality Agreement.

14

Further, it is undisputed that Erhart used his live-in girlfriend’s computer to

15

access BofI documents. (JSUF ¶ 13.) Erhart used the computer, which was in his

16

home, “to access some BofI documents.” (Erhart Decl. ¶ 3, ECF No. 67-3.) His

17

girlfriend never looked at any BofI information Erhart “may have placed on [her]

18

computer for his viewing purposes.” (Cornell ¶ 2.) She did not share the information

19

with anyone. (Id.) The Court similarly concludes Erhart has made a sufficient

20

showing that his use of the computer to access BofI documents as part of his

21

reporting of believed wrongdoing may be found to be protected activity.

22

Accordingly, because Erhart has made a sufficient showing that this conduct

23

may be protected, the Court will not summarily adjudicate Erhart’s whistleblower

24

defenses on this basis.

25

//

26

//

27

//

28

//
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Erhart’s and His Counsel’s Purported

2

Disclosures to the Press

3

BofI also argues Erhart disclosed confidential information to The New York

4

Times prior to his counsel transmitting a copy of his whistleblower retaliation

5

complaint. (See Mot. 9:8–17.) In Tides v. Boeing Co., 644 F.3d 809, 811 (9th Cir.

6

2011), the Ninth Circuit held “[l]eaks to the media” are not protected by Sarbanes–

7

Oxley’s anti-retaliation provision—the statute invoked in Erhart’s Twelfth

8

Affirmative Defense. The putative-whistleblower plaintiffs in Tides argued that their

9

disclosures to the Post-Intelligencer were protected by Sarbanes–Oxley “because

10

reports to the media may eventually ‘cause information to be provided’ to members

11

of Congress or federal law enforcement or regulatory agencies.” Id. at 815. The court

12

“decline[d] to adopt such a boundless interpretation of the statute.” Id. It reasoned

13

that Sarbanes–Oxley’s anti-retaliation provision “protects employees of public

14

companies from retaliation only when they” provide information to “one of three

15

individuals or entities: (1) a federal regulatory or law enforcement agency, (2) a

16

member or committee of Congress, or (3) a supervisor or other individual who has

17

the authority to investigate, discover or terminate such misconduct.” Id. (citing 18

18

U.S.C. § 1514A(a)(1)). “Members of the media are not included. If Congress wanted

19

to protect reports to the media under § 1514A(a)(1), it could have listed the media

20

as one of the entities to which protected reports may be made. Or, it could have

21

protected ‘any disclosure’ of specified information[.]” Id. This conclusion is in

22

contrast to a government whistleblower statute that was not implicated in Tides, the

23

Whistleblower Protection Act, 5 U.S.C. § 2302, which protects any disclosure of

24

specified information. Id. Thus, “[w]hen Congress wants to protect the disclosure of

25

any information to any entity, it knows how to do so.” Id.

26

Although the plain meaning of the statute was dispositive, the Ninth Circuit

27

also noted “we can sleep well knowing” that the legislative history of Sarbanes–

28

Oxley’s anti-retaliation provision reinforces the conclusion that disclosures to the
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media are not protected. Tides, 644 F.3d at 816. The Senate Judiciary Committee

2

“explained that the whistleblower provision was intended to protect ‘employees . . .

3

who report acts of fraud to federal officials with the authority to remedy the

4

wrongdoing or to supervisors or appropriate individuals within their company.” Id.

5

(quoting S. Rep. No. 107–146, at 5 (2002)). The provision “protects employees

6

‘when they take lawful acts to disclose information or otherwise assist . . . federal

7

regulators, Congress, or their supervisors . . . .” Id. (quoting S. Rep. No. 107–146, at

8

18–19 (2002)). Thus, disclosures to the media are not protected. Id.

9

The plain meaning reasoning in Tides is equally applicable to all of the other

10

whistleblower protection provisions invoked by Erhart. Consequently, none of these

11

provisions protects disclosures to the press.

12

Here, however, BofI has not established that it is undisputed that Erhart or his

13

counsel provided confidential information to the press. BofI only submits evidence

14

demonstrating Erhart and his counsel communicated with a reporter—not that they

15

disclosed confidential information to the reporter. Further, Erhart and his counsel

16

dispute BofI’s claim. (Gillam Decl. ¶ 9, ECF No. 67-1, Erhart Decl. ¶ 13, ECF No.

17

67-6.) Thus, at this point, Erhart is not relying on his whistleblower protection

18

defenses to protect any alleged disclosures to the press. That said, if BofI establishes

19

Erhart disclosed confidential information to the press, Erhart will not be able to raise

20

these whistleblower defenses as to this conduct because leaks to the media are not

21

protected. See Tides, 644 F.3d at 810–11.

22
23

Erhart’s Disclosure of BofI’s Information in His

24

Whistleblower Retaliation Complaint

25

Last, BofI argues Erhart disclosed its confidential information in his publicly-

26

filed whistleblower retaliation complaint. (Mot. 7:13–8:23.) After hearing oral

27

argument on this point, the Court concludes this issue turns on whether it was

28

reasonably necessary for Erhart to disclose this information in his complaint to
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pursue his whistleblower retaliation claims.

2

Erhart’s whistleblower retaliation action relies upon, among others, Sarbanes–

3

Oxley’s and Dodd–Frank’s provisions that authorize a private right of action against

4

employers that retaliate against whistleblowers. See 15 U.S.C. § 78u-6(h)(1)(B); 18

5

U.S.C. § 1514A(b). To proceed under these provisions, Erhart must plausibly allege

6

that he engaged in protected activity under the respective statutes. See, e.g., Tides,

7

644 F.3d at 814; 17 C.F.R. § 240.21F-2. Meaning, for Sarbanes–Oxley’s provision,

8

Erhart must allege that he “provide[d] information . . . regarding any conduct which

9

[he] reasonably believe[d] constitutes a violation of section 1341 [mail fraud], 1343

10

[wire fraud], 1344 [bank fraud], or 1348 [securities or commodities fraud], any rule

11

or regulation of the Securities and Exchange Commission, or any provision of

12

Federal law relating to fraud against shareholders . . . .” See 18 U.S.C. § 1514A.

13

Similarly, for Dodd–Frank’s provision, Erhart must allege that he had a “reasonable

14

belief that the information [he was] providing relate[d] to a possible securities law

15

violation . . . or . . . a possible violation of the provisions” enumerated in Sarbanes–

16

Oxley’s anti-retaliation provision. See 17 C.F.R. § 240.21F-2.

17

Accordingly, Erhart must include factual allegations regarding his believed

18

wrongdoing in his complaint to state a claim for whistleblower retaliation under

19

Sarbanes–Oxley and Dodd–Frank. Yet, the broad provisions in the Confidentiality

20

Agreement appear to apply to much of the information Erhart relies upon for his

21

allegations. In the Court’s view, these confidentiality obligations must give way to

22

allow Erhart enough leeway to allege and pursue his whistleblower retaliation

23

claims. At the same time, Erhart should not be able to disclose any of BofI’s

24

information in his complaint simply because he is pursuing a whistleblower

25

retaliation claim. Rather, like the approach taken by the Court with Erhart’s

26

appropriation of BofI’s documents, Erhart should be permitted to disclose BofI’s

27

information in his complaint if doing so was “reasonably necessary” to pursue his

28

retaliation claim. See Cafasso, 637 F.3d at 1062; see also Ruhe, 929 F. Supp. 2d
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1033, 1039 (citing Cancer Treatment Ctrs. of Am., 350 F.Supp.2d at 773) (noting in

2

a False Claims Act case that the publication of confidential documents in the

3

relator’s complaint “was not wrongful, even in light of nondisclosure agreements,

4

given ‘the strong public policy in favor of protecting whistleblowers who report

5

fraud against the government’”); cf. Wadler v. Bio–Rad Labs., Inc., --- F. Supp. 3d -

6

--, 2016 WL 7369246, at *14 (N.D. Cal. 2016) (concluding former general counsel

7

was permitted to rely on privileged communications and confidential information

8

that was “reasonably necessary” to his claims and defenses in his whistleblower

9

retaliation action).

10

Ultimately, this determination, like Erhart’s appropriation of files, turns on

11

issues of fact. BofI argues Erhart disclosed confidential information to inflict

12

maximum damage on the company and “benefit short sellers at the Bank’s expense,”

13

not simply to pursue his whistleblower retaliation claims. (See Reply 3:6–8.)

14

However, BofI has not met its initial burden of demonstrating there is no genuine

15

issue of material fact as to this conduct. Therefore, summary adjudication of Erhart’s

16

whistleblower defenses on this basis is not appropriate.

17
18

2.

Remaining Claims

19

Thus far, the Court’s analysis has focused on considering Erhart’s public

20

policy arguments in the context of BofI’s breach of contract claim. Summarily

21

adjudicating Erhart’s defenses in the context of this claim is not appropriate, and the

22

Court reaches the same conclusion for BofI’s remaining claims. For example, BofI

23

asserts various tort claims against Erhart, including conversion and breach of the

24

duty of loyalty. For these claims, the Court construes Erhart’s defenses as raising a

25

defense of justification or privilege. “A privileged act is by definition one for which

26

the actor is absolved of any tort liability, whether premised on the theory of

27

negligence or of intent.” Gilmore v. Superior Court, 230 Cal. App. 3d 416, 421

28

(1991); see also Restatement (Second) of Torts § 890 (1979) (defining “privilege”
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1

as denoting “the fact that conduct that under ordinary circumstances would subject

2

the actor to liability, under particular circumstances does not subject him to the

3

liability”). “When the correlation between justifiability and privilege is

4

acknowledged, it inevitably follows that [a] plaintiff’s cause of action cannot be

5

sustained.” Id. at 420. A privilege or justification may arise by statute. See, e.g., 2

6

Cal. Affirmative Def. § 41:1 (2d ed.).

7

It is implicit in the various whistleblower protection provisions that if an

8

employee is permitted to provide information regarding believed wrongdoing to the

9

government, including documents, the employer cannot then seek to impose tort

10

liability on the employee for the same conduct. The public policy considerations

11

underpinning the Court’s contract analysis would similarly influence its analysis

12

under tort law.5 Consequently, for the same reasons discussed above, the Court

13

concludes summary adjudication of Erhart’s defenses in the context of BofI’s

14

remaining claims is not warranted.

15
16

V.

CONCLUSION

17

In light of the foregoing, the Court GRANTS IN PART and DENIES IN

18

PART BofI’s motion for summary adjudication of thirteen of Erhart’s affirmative

19

defenses. (ECF No. 45 in Case No. 15-cv-02287.) Erhart’s Fourteenth, Fifteenth,

20

Twenty-First, and Twenty-Second Affirmative Defenses fail as a matter of law.

21

These defenses invoke protections for whistleblowers, but Erhart concedes these

22

protections do not exist. Therefore, the Court summarily adjudicates these defenses

23

in BofI’s favor. In addition, the Court strikes Erhart’s Seventeenth and Eighteenth

24
BofI also brings a claim under the Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C.
§ 1030. (First Am. Compl. ¶¶ 89–95). Because neither party substantively addresses this claim, the
Court does not wade into the potential issues arising from the intersection of this claim and Erhart’s
whistleblower defenses. See, e.g., United States v. Nosal, 844 F.3d 1024, 1032 (9th Cir. 2016)
(discussing CFAA generally); see also Connor C. Turpan, Whistleblower? More Like
Cybercriminal: The Computer Fraud and Abuse Act As Applied to Sarbanes-Oxley Whistleblowers,
42 Rutgers Computer & Tech. L.J. 120, 121–23 (2016) (discussing employers’ use of the CFAA to
deter whistleblower retaliation claims).
– 33 –
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5

25
26
27
28

1

Affirmative Defenses from his Answer because these defenses are redundant of

2

Erhart’s other defenses. Further, the Court denies BofI’s request for summary

3

adjudication of Erhart’s Twelfth, Thirteenth, Sixteenth, Nineteenth, Twentieth,

4

Twenty-Third, and Twenty-Fourth Affirmative Defenses.

5

IT IS SO ORDERED.

6
7

DATED: February 14, 2017

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