Sharkey v. J.P. Morgan Chase & Co. et al

Filing 202

OPINION re: 159 MOTION in Limine to Preclude Defendants from Referencing or Introducing Evidence Related to Plaintiff's Personal or Family Wealth At Trial. filed by Jennifer Sharkey, 161 MOTION in Limine to Preclude De fendants from Curtailing Plaintiff's Ability to Present Her Claims to the Jury and/or Limiting the Public's Access to the Upcoming Trial. filed by Jennifer Sharkey, 166 LETTER MOTION to Compel Defendants to State Whether Defend ants Will Produce Witness to Testify at Trial In Person addressed to Judge Robert W. Sweet from Douglas H. Wigdor dated January 9, 2017. filed by Jennifer Sharkey, 157 MOTION in Limine to Preclude Defendants from Referencing or In troducing Evidence to Establish that Client A Did Not Violate a Statute Enumerated in the Sarbanes-Oxley Act. filed by Jennifer Sharkey, 163 MOTION in Limine to Preclude Defendants from Referencing or Introducing the April 12, 2010 Non -final Determination of OSHA Regarding This Matter. filed by Jennifer Sharkey. Based on the findings and conclusions set forth above, Client A and Defendants' motion to protect Client A's identity and quash his trial subpoena is granted in part and denied in part. Defendants' five unresolved motions in limine are granted in part and denied in part. (As further set forth in this Order.) (Signed by Judge Robert W. Sweet on 1/26/2017) (cf)

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Case 1:10-cv-03824-RWS Document 202 Filed 01/26/17 Page 1 of 12 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ----------------------------------------x JENNIFER SHARKEY, Plaintiff, -against- 10 Civ. 3824 OPINION J.P. MORGAN CHASE & CO., JOE KENNEY, ADAM GREEN, and LESLIE LASSITER, in their official and individual capacities, Defendants. -----------------------------------------x A P P E A RA N C E S: Attorneys for Plaintiff WIGDOR LLP 85 Fifth Avenue New York, NY 10003 By: Douglas H. Wigdor, Esq. Lawrence M. Pearson, Esq. Michael J. Willernin, Esq. Attorneys for Defendants ARNOLD & PORTER LLP 399 Park Avenue New York, NY 10022-4690 By: Michael D. Schissel, Esq. Kathleen A. Reilly USDC SDNY DOCUMEā€¢IT A .., ELECTi\. ,, l"u'f c/'\. T Ty FILED .._, L D'JC #: D A 'E FiuED: -: ~~~T-17..,..~+--r---- Case 1:10-cv-03824-RWS Document 202 Filed 01/26/17 Page 2 of 12 Sweet, D.J. Client A, a non-party to this action, is joined by Defendants J.P. Morgan Case & Co. ("JPMCu), Joe Kenney ("Kenneyu), Adam Green ("Greenu) and Leslie Lassiter ("Lassiteru) (collectively, the "Defendantsu), in moving to protect Client A's identity at trial and quash the trial subpoena for Client A and certain of his family members. Upon the findings and conclusions set forth below, Client A and Defendants' motion is granted in part and denied in part. Defendants filed 10 motions in limine and Plaintiff filed four motions in limine. All of Plaintiff's motions were resolved at ora l argument on January 17, 2017 as were five of Defendants' motions. Defendants' remaining five motions in limine are granted in part and denied in part. Prior Proceedings The non-party, Client A, filed the instant motion to quash the trial subpoena on December 23 , 2016 and the motions in limine were filed on January 9, 2017. The motions were all heard and marked fully submitted on January 17, 20 17. 1 Case 1:10-cv-03824-RWS Document 202 Filed 01/26/17 Page 3 of 12 The Motion to Protect Client A's Identity and Quash Client A's Trial Subpoena is Granted in Part and Denied in Part Client A and Defendants moved to protect the names of Client A, other members of the A-Family, and affiliated entities from disclosure at trial and to quash the trial subpoenas. For the reasons that follow, Client A's identit y will be protected up until the time at which either of the parties can make an in camera showing that Client A's testimony will be relevant during trial. The motion to quash the subpoenas is denied. Under Federa l Rule of Evidence 401, testimony is relevant if "it has any tendency to make a fact more or less probable than it would be without the evidence." Fed. R. Evict. 40 1. Here, the only relevant inquiry is whether Plaintiff's belief that she was whist leblowing about potentially illegal conduct was reasonable at the time of her employment and whether her whistleblowing led to her termination. The parties dispute whether Client A's testimony will help to determine the reasonableness of Plaintiff's determination. Plaintiff argues that Client A did not willingly comply with the Know Your Client requirements and that Client A's deposition testimony was inconsistent with other testimony from JPMC witnesses. 2 However, Case 1:10-cv-03824-RWS Document 202 Filed 01/26/17 Page 4 of 12 Plaintiff will need to demonstrate to the Court in camera during trial why Client A's testimony will be relevant. If the Plaintiff can make a showing of relevance, then the question becomes whether the Court will protect Client A's identity. Client A and Defendants warn of the harm that Client A would suffer harm to his business if his identity were revealed and he was required to testify, whereas Plaintiff argues that she has a right to Client A's live testimony. The Second Circuit has a "presumption of access" to live witnesses though cases dispute whether this presumption is "especially strong" requiring "extraordinary circumstances to justify restrictions" United States v. Myers Broadcasting Co.), 635 F.2d 945, 952 (In re Nat'l (2d Cir. 1980), while other courts weigh the presumption as merely "one of the interests" that may bow before "good reasons" to deny the requested access. Bel o Broadcasting Corp. v. Clark, 654 F.2d 423, 434 (5th Cir. Unit A 1981); see also, United States v. Amodeo, 71 F.3d 1044, 1048 (2d Cir. 1995) ("Amodeo II"). 3 Case 1:10-cv-03824-RWS Document 202 Filed 01/26/17 Page 5 of 12 Against this presumption of access to testimony, courts must weigh the "two countervailing factors: (i) the danger of impairing law enforcement or judicial efficiency and (ii) the privacy interests of those resisting disclosure." F.3d at 1050. Amodeo II, 71 Client A does not argue that there are any dangers to law enforcement or substantial savings to judicial efficiency. Instead, Client A argues that his privacy interests outweigh the presumption in favor of disclosure. Courts have held that "[t]he privacy interests of innocent third parties . equation." Amodeo II, Newsday, Inc. 1990)) . . should weigh heavily in a court's balancing 71 F.3d at 1050 (quoting Gardner v. (In re Newsday, Inc.), 895 F.2d 74, 79-80 (2d Cir. Courts will not allow public access to information simply to "gratify private spite or promote public scandal," and have "refused to permit their files to serve as reservoirs of libelous statements for press consumption." Amodeo II, at 1051 (quoting Nixon v. Warner Communications, Inc., 71 F.3d 435 U.S. 589, 598, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978)). Amodeo II provided examples of the kinds of records that should be protected from public disclosure such as "[f]inancial 4 Case 1:10-cv-03824-RWS Document 202 Filed 01/26/17 Page 6 of 12 records of a wholly owned business, family affairs, illnesses, [and] embarrassing conduct with no public ramifications." Amodeo II, 71 F.3d at 1051. Further, "The nature and degree of injury must also be weighed" including "the sensitivity of the information." Id. Here, the mere disclosure of Client A's identity does not amount to the kind and nature of the records Amodeo II intended to protect. His identity is not the same as disclosure about sensitive financial information, illnesses, or trade secrets. Instead Client A's counsel asserts that connecting Client A's identity with Plaintiff's accusations of wrongdoing would amount to defamation per se. However, the potential defamation claim is not before this Court and if Client A's testimony is shown to be relevant, he will not be permitted to shield his identity merely to advance his privacy interests. Defendants and Client A have not advanced an explanation for differentiated treatment for Client A and the absence of any explanation may cause jury confusion and concern on a peripheral issue. 5 Case 1:10-cv-03824-RWS Document 202 Filed 01/26/17 Page 7 of 12 Defendants' Motion in Lim.ine 1 is Granted in Part and Denied in Part Defendants' first motion in limine concerns the date from which Plaintiff may calculate back pay. The Second Circuit has held that plaintiffs are not entitled to back pay "to the extent they "fail[] to remain in the labor market" because they "may not simply abandon [their] back pay." job search and continue to recover Kirsch v. Fleet Street, 148 F.3d 149, 168 (2d Cir. 1998) . Here, the last document showing Plaintiff looked for work is in October 2010. In her deposition she testified that she continued to seek employment through December 2011. Her claims for back pay will end at the date at which the jury determines she stopped actively applying for jobs and seeking empl o yment. Merely maintaining contact with industry professionals will not suffice, and hearsay evidence regarding her search for employment offered for the truth of out of court statements will not be permitted. At that date, back pay will cease because Sharkey "made no reasonable efforts to seek such employment" when she was still capable of employment and failed to mitigate 6 Case 1:10-cv-03824-RWS Document 202 Filed 01/26/17 Page 8 of 12 her damages . Greenway v. Buffalo Hilton Hotel, 143 F.3d 47, 54 (2d Cir. 1998). Plaintiff also seeks front pay, which is awarded "where reinstatement is inappropriate and the plaintiff has been unable to find another j ob ." 1170, 11 82 Reed v. A.W. Lawrence & Co ., (2d Cir . 1996). 95 F.3d However, that concept is inapplicable here as Plaintiff could have found a job had she conducted a more thorough search than applying to j obs between her termination and October 2010 with additional contacts to Plaintiff has also not made any industry professionals in 2011 . showing that reinstatement is not possible. Evidence of front pay will not be permitted . Defendants' Motion in Limine 2 is Denied Defendants' second motion in limine concerns whether Plaintiff may provide evidence regarding her speculat i ve bonuses, benefits, or salary increases. denied. Defendants' motion is Plaintiff can make any claims for back pay and may try t o convince the jury that she is deserv ing of these additional categories of pay. However, this ca l cu lati on of back pay wil l on l y be permitted through th e last date at which Plaintiff 7 Case 1:10-cv-03824-RWS Document 202 Filed 01/26/17 Page 9 of 12 applied for a job or can demonstrate through non-hearsay evidence that was actively seeking employment. Defendants' Motion in Limine 3 is Denied Defendants' third motion in limine seeks to have the Court determine the amount of damages instead of the jury. Previous decisions in this District have allowed juries to determine the calculation of compensatory back pay, but the Court has determined equitable relief in Sarbanes-Oxley Act of 2002 ("SOX") whistleblower cases. Inc., No. 10 Civ. 08278 Aug. 30, 2016) . See Perez v. Progenies Pharm., (LAP), 2016 WL 4533398, at *14 Here, the same rule will be applied. (S.D.N.Y. The jury will be asked to determine the proper amount of back pay based on when Plaintiff stopped actively applying for jobs and searching for work. The Defendants' motion is denied. Defendants' Motion in Limine 4 is Denied Defendants' fourth motion in limine seeks to prohibit Plaintiff from introducing evidence regarding reputational damage, harm to career, and emotional distress. Defendants cite Perez v. Progenies Parm., Inc. for the proposition that it was proper in a motion in limine to "preclud[e] evidence regarding 8 Case 1:10-cv-03824-RWS Document 202 Filed 01/26/17 Page 10 of 12 damages for loss of reputation, emotional distress, depression, and psychological injuries" because those conditions were "not covered under Sarbanes-Oxley." (S.D.N.Y. Apr. 2, 2015). 2015 WL 10846076, at *2 However, this decision is not consistent with the majority of authority in this area. More recently, the Honorable William H. Pauley I I I held that "With respect to damages for emotional distress, every circuit court to address the issue holds that such damages may be recoverable pursuant to SOX's language stating that a prevailing employee 'shall be entitled to all relief necessary to make the employee whole.'" Feldman-Boland v. Stanley, No. 15 Civ. 3826285, at *6 (S.D.N.Y. July 13, 2016) language). 6698, 2016 WL (citing the statutory Consistent with the reasoning in Feldman-Boland, other Courts have found that reputational injury is also compensable under SOX. "When reputational injury caused by an employer's unlawful discrimination diminishes a plaintiff's future earnings capacity, [she] cannot be made whole without compensation for the lost future earnings [she] would have received absent the employer's unlawful activity." KeySpan Corp., No. 04 CV 554 Mahony v. (SJ), 2007 WL 805813, at *7 (S.D.N.Y. March 12, 2007). 9 Case 1:10-cv-03824-RWS Document 202 Filed 01/26/17 Page 11 of 12 However, the admissibility of any particular evidence advancing this theory has not been the subject of consideration on this motion. Accordingly, these categories of evidence will be admissible at trial, though only if presented through otherwise admissible evidence. Defendants' motion in limine 4 is denied. Defendants' Motion in Limine 8 is Granted Defendants' eighth motion in limine seeks to preclude Plaintiff from introducing Exhibits 210, 211, and 222 as well as any other evidence of settlements, investigations, reports, orders, or other lawsuits. Defendants seek to preclude these documents on the basis that under Federal Rule of Evidence 403 "its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, [and] misleading the jury." Fed. R. Evid. 403. Any probative value would be far outweighed by the risk of confusion and prejudice by introducing settlements and consent orders from other unrelated cases. This is particularly true because of the risk of prejudice by Plaintiff introducing an unrelated document describing issues JPMC experienced in connection with the Bernie Madoff fraud. 10 Case 1:10-cv-03824-RWS Document 202 Filed 01/26/17 Page 12 of 12 -. Conclusion Based on the findings and conc lusi ons set forth above, Client A and Defendants' motion to protect Client A's identity and quash his trial subpoena is granted in part and denied in part. Defendants' five unresolved motions in limine are granted in part and denied in part. It is so ordered. New York, NY January~,, 2017 U.S.D.J. 11

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