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)

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

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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