throbber
Case 1:10-cv-03824-DLC Doc #: 340 Filed 03/05/18 Page 1 of 36 Page ID #: 4230
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`10cv3824 (DLC)
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`OPINION AND ORDER
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`--------------------------------------
`
`JENNIFER SHARKEY,
`
`
`Plaintiff,
`
`
`
`-v-
`
`
`J.P. MORGAN CHASE & CO., JOE KENNEY,
`ADAM GREEN, and LESLIE LASSITER, in
`their official and individual
`capacities,
`
`Defendants.
`
`
`--------------------------------------
`
`For the plaintiff:
`Douglas H. Wigdor
`Michael J. Willemin
`Wigdor LLP
`85 Fifth Avenue
`5th Floor
`New York, New York 10003
`
`For the defendants:
`Michael D. Schissel
`Kathleen Reilly
`Arnold & Porter Kaye Scholer LLP
`250 West 55th Street
`New York, New York 10019
`
`DENISE COTE, District Judge:
`
`
`This Sarbanes-Oxley retaliation case has been pending for
`
`nearly nine years. After multiple dismissals and appeals, the
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`case was tried to verdict before a jury in November 2017. At
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`the conclusion of the five-day trial, the jury awarded plaintiff
`
`Jennifer Sharkey (“Sharkey”) $563,000 in back pay damages, and
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`an identical amount for her emotional distress. Neither amount
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`can be supported by the trial record. With reluctance, the
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`

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`Case 1:10-cv-03824-DLC Doc #: 340 Filed 03/05/18 Page 2 of 36 Page ID #: 4231
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`Court concludes that awards of damages of this magnitude reflect
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`a verdict infected by passion and prejudice. Defendants have
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`moved for post-verdict relief. For the reasons given below,
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`judgment as a matter of law is entered in the defendants’ favor
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`on a portion of the damages claim, a new trial is conditionally
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`ordered on that portion of the damages, and a new trial is
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`ordered on liability and the remainder of the plaintiff’s
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`request for damages.
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`
`
`PROCEDURAL BACKGROUND
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`Following her discharge in August 2009 by J.P. Morgan Chase
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`& Co. (“J.P. Morgan”), on October 22, 2009, Sharkey filed a
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`complaint with the Occupational Safety and Health Administration
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`(“OSHA”) alleging violations of Sarbanes-Oxley Act of 2002, 18
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`U.S.C. § 1514A (“SOX”). On or about April 12, 2010, OSHA issued
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`an order dismissing her complaint.
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`Sharkey then brought this action by filing a complaint on
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`May 10, 2010, alleging the same SOX claims. The case was
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`assigned to the Honorable Robert W. Sweet. Defendants moved to
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`dismiss the complaint, and on January 14, 2011, the motion was
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`granted with leave to replead. Sharkey v. J.P. Morgan Chase,
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`2011 WL 135026 (S.D.N.Y. Jan. 14, 2011). A subsequent motion to
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`dismiss the amended complaint was denied on August 19, 2011.
`
`Sharkey v. J.P. Morgan Chase, 805 F. Supp. 2d 45 (S.D.N.Y.
`
`
`
`2
`
`

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`Case 1:10-cv-03824-DLC Doc #: 340 Filed 03/05/18 Page 3 of 36 Page ID #: 4232
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`2011).
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`On December 12, 2013, Judge Sweet granted the defendants’
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`motion for summary judgment. Sharkey v. J.P. Morgan Chase, 2013
`
`WL 10796833 (S.D.N.Y. Dec. 12, 2013). The Second Circuit
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`vacated and remanded that decision on October 9, 2014 for
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`reconsideration in light of Nielsen v. AECOM Tech. Corp., 762
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`F.3d 214, 221-22 (2d Cir. 2014) and Bechtel v. Admin. Review
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`Bd., 710 F.3d 443, 451 (2d Cir. 2013). Sharkey v. J.P. Morgan
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`Chase, 580 F. App’x 28 (2d Cir. 2014).
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`The defendants again moved for summary judgment, and on
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`October 9, 2015, the motion was granted on the basis that
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`Sharkey had failed to make a prima facie showing that any
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`protected activity under SOX was a contributing factor in her
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`firing. Sharkey v. J.P. Morgan Chase, 2015 WL 5920019 (S.D.N.Y.
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`Oct. 9, 2015). The Second Circuit then vacated and remanded
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`that finding, holding that the temporal proximity between the
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`protected activity and her discharge was sufficient to establish
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`a prima facie case. Sharkey v. JP Morgan Chase, 660 F. App’x 65
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`(2d Cir. 2016). The Second Circuit also declined to affirm on
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`the basis of the defendants’ alternative ground, that Sharkey
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`lacked a reasonable belief for her reports of fraud, holding
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`that the issue gave rise to disputes of fact, and did not compel
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`the conclusion that Sharkey lacked a reasonable belief of fraud.
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`
`
`3
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`

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`Case 1:10-cv-03824-DLC Doc #: 340 Filed 03/05/18 Page 4 of 36 Page ID #: 4233
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`Id.
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`After further proceedings before Judge Sweet, including
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`rulings on motions in limine on January 26, 2017, the case was
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`reassigned to this Court on April 20, 2017. This Court then
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`held conferences on May 5 and July 31, 2017, to determine if any
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`of Judge Sweet’s rulings merited reconsideration. At the July
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`31 conference, the Court declined to change any of Judge Sweet’s
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`rulings on the motions in limine. The case was tried over five
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`days between October 30 and November 6, 2017.
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`At the end of the plaintiff’s testimony, defendants made an
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`oral motion for a directed verdict as a matter of law on all
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`issues of liability. The Court reserved decision. After the
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`conclusion of the evidence, on November 4, 2017, the defendants
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`again made a motion for judgment as a matter of law. Both the
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`defendants and the plaintiff submitted briefs on the motion. On
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`November 6, the case was submitted to the jury, and on November
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`7, the jury returned a verdict.
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`The jury found that Sharkey had not proven her case as to
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`two of the defendants, Joe Kenney and Adam Green.1 As to
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`defendants Leslie Lassiter and J.P. Morgan, the jury found that
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`Sharkey had proven her claim of retaliation, and that Lassiter
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`
`1 At trial, Sharkey presented virtually no evidence that Green or
`Kenney were aware of any protected activity by Sharkey, much
`less that any protected activity was the cause of any decision
`they made to terminate her employment.
`4
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`
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`

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`Case 1:10-cv-03824-DLC Doc #: 340 Filed 03/05/18 Page 5 of 36 Page ID #: 4234
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`and J.P. Morgan had failed to prove their affirmative defense.
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`As to damages, the jury found that the defendants had not shown
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`that Sharkey failed to mitigate her damages and that she was
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`entitled to $563,000 in back pay. The jury also found that
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`Sharkey was entitled to emotional distress damages, and awarded
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`her the identical amount of damages for her emotional distress,
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`$563,000.
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`The defendants then renewed their motions as to J.P. Morgan
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`and Lassiter, and added a request in the alternative for a new
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`trial. The Court also made post-verdict comments on the record
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`generally indicating the Court’s inclination as to the post-
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`verdict motions. The motions became fully submitted on December
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`20, 2017.
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`TRIAL EVIDENCE
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`The undisputed and/or overwhelming weight of the trial
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`evidence established the following. Sharkey had worked in the
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`banking industry for approximate 12 years before joining J.P.
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`Morgan in November 2006 as a private banker. In 2008, J.P.
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`Morgan restructured certain of its services for its high-net-
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`worth clients. The restructuring placed one person in charge of
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`each client relationship, a person which J.P. Morgan called a
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`“Private Wealth Manager.” The wealth manager effectively served
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`as the face of the bank, and was the primary point of contact
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`
`
`5
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`

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`Case 1:10-cv-03824-DLC Doc #: 340 Filed 03/05/18 Page 6 of 36 Page ID #: 4235
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`for the client for all issues related to the banking
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`relationship. The position therefore required that individual
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`to be familiar with each aspect of the bank’s offerings to
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`effectively serve their clients. As part of the restructuring,
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`J.P. Morgan brought in Leslie Lassiter to run its New-York-City-
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`based operations.
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`When Lassiter arrived in New York City, she had to staff
`
`the new wealth manager positions. Lassiter had never worked
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`with Sharkey and did not know her, but she did interview Sharkey
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`and, based on Sharkey’s background and previous work, gave her
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`an opportunity to become a private wealth manager. This was a
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`promotion for Sharkey, and required Sharkey to become familiar
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`with banking services Sharkey had never handled before. Sharkey
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`began her work as a private wealth manager in August or
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`September of 2008.
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`Sharkey had some difficulties learning and performing her
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`new job. She failed the Series 7 securities examination twice.2
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`She was consistently tardy in conducting the due diligence
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`associated with the bank’s Know Your Client (“KYC”) obligations.
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`In conversations with Sharkey regarding her performance in April
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`and May 2009, Lassiter highlighted the deficiencies in Sharkey’s
`
`
`2 Sharkey excused one of her failures, claiming that she had to
`leave the exam early to respond to a call from Lassiter.
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`6
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`Case 1:10-cv-03824-DLC Doc #: 340 Filed 03/05/18 Page 7 of 36 Page ID #: 4236
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`performance, including poor performance with investments and
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`failure to complete KYCs in a timely manner. After a J.P.
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`Morgan biannual regional talent review meeting in June 2009, and
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`a national talent review in mid-July 2009, Sharkey’s employment
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`would have been near-termination but for Lassiter’s strong
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`support of Sharkey. Then, on July 21, Lassiter learned from
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`Sharkey’s largest client -- who was referred to at trial as
`
`Client H -- that Sharkey had lied to Lassiter about returning
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`the client’s calls.3 The client’s representative called Sharkey
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`a “phantom.” That day, Lassiter told Green about the incident.
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`Green then wrote to Kenney to inform him that there was an
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`incident, and that the incident was viewed as a dischargeable
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`offense. After consulting with her superiors and human
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`resources, Lassiter terminated Sharkey’s employment. Sharkey’s
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`employment ended on August 5, 2009. In her exit interview with
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`Steve Grande of the Human Resources department, Sharkey made no
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`reference whatsoever to a claim of retaliation. By contrast,
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`Grande informed her, as Sharkey admitted she was so informed by
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`both Lassiter and Grande, that she was discharged because of a
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`significant lapse in judgment regarding Client H.
`
`
`3 In the Fall of 2009, Lassiter learned that Sharkey had lied to
`her about contacting yet another client. The bank sought to
`admit this after-acquired evidence to establish that Sharkey
`would have in any event been fired by the Fall of 2009. The
`evidence was excluded for the defendants’ failure to give timely
`notice of this defense.
`
`
`
`7
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`

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`Case 1:10-cv-03824-DLC Doc #: 340 Filed 03/05/18 Page 8 of 36 Page ID #: 4237
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`Against the powerful documentary and testimonial evidence
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`which showed that Sharkey was not performing her job adequately
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`and that her employment was terminated because she lied to the
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`very supervisor who had recently promoted and defended her,
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`Sharkey offered a counter-narrative. Sharkey contended that her
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`employment was terminated because of retaliation when she
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`expressed concerns about a bank client known at trial as Client
`
`A.4
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`At trial, there was absolutely no evidence that Client A
`
`was engaged in any illegal activity and insufficient evidence to
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`permit anyone to form a reasonable belief that he was. Instead,
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`the primary issue was whether Client A was appropriately
`
`responsive to requests made of him in the course of the KYC
`
`inquiry. The bank’s risk compliance department had, in March
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`2009, compiled a list of items that needed to be gathered from
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`Client A as part of the bank’s KYC protocol.
`
`
`4 Because of the nature of the concerns raised regarding Client
`A, and because his testimony would have been largely irrelevant
`to the issues in the case, his testimony was excluded and he was
`referred to pseudonymously. The trial of this action confirmed
`that anything Client A would have testified to would be largely
`irrelevant, and certainly outweighed by the prejudice, burden
`and distraction of requiring him to testify. During the course
`of the trial, Client A’s name was inadvertently mentioned in
`open court, and the name of his business was reported in the
`press. Because Client A has already been effectively identified
`to the public, the parties and Client A will be given an
`opportunity to be heard on whether the redaction of his name
`should continue at the re-trial of this action.
`
`
`
`
`8
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`

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`Case 1:10-cv-03824-DLC Doc #: 340 Filed 03/05/18 Page 9 of 36 Page ID #: 4238
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`Client A was assigned to Sharkey in early April 2009.
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`Sharkey and others at the bank called Client A shortly
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`thereafter to obtain the items identified by the risk
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`department. The memorandum from this call recorded that Client
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`A had good explanations for nearly all of the concerns raised in
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`the risk department’s memorandum. The next day, Sharkey sent an
`
`e-mail to Client A, telling him that the information he provided
`
`on the call was very helpful, and formally requesting the
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`documentation they discussed. Within 8 days, Client A provided
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`the documents that responded to all but three of the requests.
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`Client A had explained in the telephone call and his responses
`
`that one of those three items was actually in the possession of
`
`Client A’s law firm, and the two remaining items were an ID card
`
`and a document related to one of Client A’s entities. There is
`
`no document or email reflecting that Sharkey or anyone working
`
`with Sharkey ever followed up with either Client A or his
`
`attorneys regarding the three items. While Sharkey testified
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`that she and a colleague attempted to call the law firm multiple
`
`times, she never testified that they tried to reach Client A to
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`obtain the two missing items in his possession. After Sharkey
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`was fired, her successor obtained the outstanding items with
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`little trouble.
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`At various points throughout the summer, Sharkey orally
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`9
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`

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`Case 1:10-cv-03824-DLC Doc #: 340 Filed 03/05/18 Page 10 of 36 Page ID #: 4239
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`recommended to Lassiter that Client A no longer be treated as a
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`private wealth management client. Lassiter pressed Sharkey to
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`explain why she was making this recommendation, and to put it in
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`writing. Sharkey finally put her recommendation in writing in a
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`July 24, 2009 e-mail. The key paragraphs in the e-mail read as
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`follows:
`
` As you are aware, all of the information that
`we have accumulated during the KYC remediation
`process feels uncomfortable regarding the
`[A/Client A] family relationship and the nature
`of its businesses as well as its related entities
`. . . . After many conversations with the
`client(s) and attempts to acquire the proper
`documentation, we still have not received all
`documentation and Identification [sic] needed to
`satisfy our standard Know Your Client
`requirements.
`
`
` Since this is a complicated and long-term
`relationship that we inherited, I recommend that
`we discuss a simple way to detach the
`relationship from the PWM metro business. I want
`to be mindful of the fact that other LOB’s5 within
`the firm have relationships with this client
`and/or its related entities and may wish to
`retain some or all of their business.
`
`
`(Emphasis supplied.)
`
`
`
`Notably, in this document, Sharkey expressed discomfort
`
`primarily because she had been unable to complete all the
`
`outstanding KYC issues with Client A. Sharkey does not accuse
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`Client A of engaging in illegality or recommend that the bank as
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`a whole cease doing business with Client A.
`
`
`5 “LOB’s” is an acronym for “Lines of Business.”
`10
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`

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`Case 1:10-cv-03824-DLC Doc #: 340 Filed 03/05/18 Page 11 of 36 Page ID #: 4240
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`
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`Nonetheless, after receiving this memorandum, Lassiter
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`began the process of terminating the entirety of the bank’s
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`relationship with Client A. Lassiter believed that if, as
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`Sharkey represented, Client A was not being forthcoming in the
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`KYC process, Client A should not be a customer of the bank, in
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`any capacity. It was only later, after Sharkey’s employment had
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`been terminated, when the bank obtained the missing three items,
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`and met with Client A in-person, that the bank reversed course
`
`and retained the relationship.
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`Sharkey’s retaliation claim rested on her testimony that
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`she believed and orally expressed to Lassiter that Client A may
`
`be engaged in illegal activity. But Sharkey’s testimony was
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`filled with contradictions and far from credible on this issue.
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`For instance, at one point she testified that she expressed her
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`concerns to Lassiter that Client A was engaged in violations of
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`each of the enumerated statutes of SOX by actually naming each
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`of those statutes in her conversation with Lassiter. That
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`testimony was effectively undermined by defense counsel’s
`
`examination of Sharkey.
`
`In addition, Sharkey did not identify new concerns about
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`Client A that she uncovered as a result of the KYC process. The
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`concerns she listed to the jury were essentially the items that
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`other bankers at J.P. Morgan had identified for Sharkey to
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`
`
`11
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`

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`Case 1:10-cv-03824-DLC Doc #: 340 Filed 03/05/18 Page 12 of 36 Page ID #: 4241
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`investigate as part of the KYC process.
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` In sum, not one document and no credible evidence linked
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`Sharkey’s firing to any report she voiced about Client A.
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`Instead, the documents and credible testimony showed that (1)
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`Sharkey was fired for her performance, capped by her lies
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`regarding Client H, (2) Sharkey never told Lassiter that she
`
`believed that Client A was engaged in fraud or that the bank
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`should terminate its relationship with him, and (3) it was
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`Lassiter who decided to exit the Client A relationship and that
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`Lassiter’s recommendation was accepted by Lassiter’s superiors.
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`Once a full investigation of the relationship was conducted,
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`J.P. Morgan concluded that Client A was not committing any
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`wrongdoing and kept the relationship.
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`
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`The overwhelming evidence is also against the award of back
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`pay in an amount of $563,000. At most, any award of back pay
`
`would reflect a payment through March 2010, which was roughly
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`eight months after Sharkey’s employment was terminated. Such a
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`payment would have been a fraction of the amount awarded by the
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`jury. The evidence at trial established that Sharkey stopped
`
`looking for new employment in March 2010. Indeed, the evidence
`
`strongly suggests that Sharkey never engaged in a serious job
`
`search after J.P. Morgan fired her. Since late 2009, Sharkey
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`had worked without salary for, and held herself out as the
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`
`
`12
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`

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`Case 1:10-cv-03824-DLC Doc #: 340 Filed 03/05/18 Page 13 of 36 Page ID #: 4242
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`President of, Mint Cars on Demand, a business run by her then-
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`fiancée, now husband. Then, after a family tragedy in early
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`2010, she also began assisting her father in his business
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`without compensation. It was undisputed at trial that Sharkey
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`left the work force altogether in 2012.
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`
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`While Sharkey kept a notebook recording her attempts to
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`find other employment, the last entry in that notebook was from
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`March 2010. The only documentary evidence touching on any job
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`search after that time consists of an abbreviated e-mail chain
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`from October 2010, in which a recruiter concludes that Sharkey
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`is not interested in talking to him.6
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`
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`Sharkey testified that she went about looking for work by
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`“[c]ontacting my friends in the industry and old employers and
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`recruiters and constantly asking was there anything that I could
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`do knowing that the lawsuit is out there and everybody has read
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`about it, because it was in the press.”7 But she did not testify
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`to an active job search, such as applying for jobs, making
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`appointments with recruiters, or other similar activities after
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`March 2010.
`
`
`6 Understandably, plaintiff’s counsel made no mention of this
`document in his summation.
`
`7 The testimony regarding the presence of the lawsuit was
`initially admitted under a limiting instruction preventing it
`from being used for the truth of the statement. Later in the
`trial, the ruling was reconsidered, and this portion of the
`testimony was stricken in its entirety.
`13
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`

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`Case 1:10-cv-03824-DLC Doc #: 340 Filed 03/05/18 Page 14 of 36 Page ID #: 4243
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`Similarly, the jury award of an equal amount of $563,000 in
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`emotional distress damages is without any basis in the record.
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`Sharkey’s evidence on her damages for her emotional distress
`
`consisted of approximately two transcript pages of her own
`
`testimony. That testimony, in its entirety, reads as follows:
`
`Q. Ms. Sharkey, have you suffered emotionally as
`a result of your termination?
`
`MR. SCHISSEL: Objection.
`
`THE COURT: Overruled.
`
`A. Definitely.
`
`Q. Can you describe to the jury how that is.
`
`A. I think anyone could understand. You're losing
`your job, being terminated for something you
`thought you were doing well. I had been in the
`field for 15 years. I had never had a situation
`at work with any supervisor. It's just very
`distressing, upsetting. You feel like your whole
`life is taken away from you.
`
`It was a career. It wasn't just a job for me. I
`had worked my way up from being an administrative
`assistant in the bank to being a VP at City [sic]
`and then moving on to two other organizations.
`Just feeling that it was all taken away from me
`just like that.
`
`Q. Did you have any physical symptoms that you
`believe were attributed to the termination?
`
`MR. SCHISSEL: Objection.
`
`THE COURT: Overruled.
`
`A. I had extreme anxiety and I was not sleeping
`whatsoever.
`
`
`
`
`14
`
`

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`Case 1:10-cv-03824-DLC Doc #: 340 Filed 03/05/18 Page 15 of 36 Page ID #: 4244
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`Q. At any point in time did you take any
`medication to help cope with that?
`
`A. Yes.
`
`Q. What was that and when?
`
`A. What medications?
`
`Q. Yes.
`
`A. Xanax and sleeping medications.
`
`Q. In what period of time?
`
`A. In '09 probably through 2010. Through 2010.
`
`
`No corroborative evidence, medical testimony, or other documents
`
`were presented. There was testimony, however, that Sharkey
`
`suffered a family tragedy in early February 2010 that could have
`
`independently caused or exacerbated these reported symptoms from
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`that day forward.
`
`
`
`DISCUSSION
`
`The standard for granting judgment as a matter of law under
`
`Rule 50, Fed. R. Civ. P. is well-established. “Judgment as a
`
`matter of law may not properly be granted under Rule 50 unless
`
`the evidence, viewed in the light most favorable to the opposing
`
`party, is insufficient to permit a reasonable juror to find in
`
`h[er] favor.” Stevens v. Rite Aid Corp., 851 F.3d 224, 228 (2d
`
`Cir. 2017) (citation omitted). This standard “mirrors the
`
`standard for” summary judgment under Rule 56, Fed. R. Civ. P,
`
`except based on the trial record rather than the summary
`
`
`
`15
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`

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`Case 1:10-cv-03824-DLC Doc #: 340 Filed 03/05/18 Page 16 of 36 Page ID #: 4245
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`judgment record. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
`
`250 (1986); see Piesco v. Koch, 12 F.3d 332, 341 (2d Cir. 1993).
`
`The standard for granting Rule 59 relief, Fed. R. Civ. P.,
`
`by contrast, grants far more discretion to the trial judge. “It
`
`is the judge’s right, and indeed duty, to order a new trial if
`
`it is deemed in the interest of justice to do so.” Charles Alan
`
`Wright and Arthur R. Miller, Fed. Prac. & Proc. § 2803 (3d ed.
`
`2017). Among the grounds on which a new trial may be granted is
`
`if the verdict is against the weight of the evidence. “A
`
`decision is against the weight of the evidence if and only if
`
`the verdict is (1) seriously erroneous or (2) a miscarriage of
`
`justice.” Raedle v. Credit Agricole Indosuez, 670 F.3d 411,
`
`417-18 (2d Cir. 2012) (citation omitted); see also DLC Mgmt.
`
`Corp. v. Town of Hyde Park, 163 F.3d 124, 134 (2d Cir. 1998) (“A
`
`court considering a Rule 59 motion for a new trial . . . should
`
`only grant such a motion when the jury’s verdict is egregious.”
`
`(citation omitted)).
`
`In evaluating a Rule 59 motion, “the trial judge may weigh
`
`the evidence and the credibility of witnesses and need not view
`
`the evidence in the light most favorable to the verdict winner.”
`
`Raedle, 670 F.3d at 418. “Where the resolution of the issues
`
`depended on assessment of the credibility of the witnesses, it
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`is proper for the court to refrain from setting aside the
`
`
`
`16
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`Case 1:10-cv-03824-DLC Doc #: 340 Filed 03/05/18 Page 17 of 36 Page ID #: 4246
`
`verdict.” Metromedia Co. v. Fugazy, 983 F.2d 350, 363 (2d Cir.
`
`1992).
`
`A special case of the general power to order relief under
`
`Rule 59 arises in the context of excessive verdicts. A trial
`
`judge has “‘discretion to grant a new trial if the verdict
`
`appears to the judge to be against the weight of the evidence .
`
`. . includ[ing] overturning verdicts for excessiveness and
`
`ordering a new trial without qualification, or conditioned on
`
`the verdict winner’s refusal to agree to a reduction
`
`(remittitur).’” Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 165
`
`(2d Cir. 1998) (quoting Gasperini v. Center for Humanities,
`
`Inc., 518 U.S. 415, 433 (1996)). The “calculation of damages is
`
`the province of the jury,” and a court may “not vacate or reduce
`
`a jury award merely because [it] would have granted a lesser
`
`amount of damages.” Turley v. ISG Lackawanna, Inc., 774 F.3d
`
`140, 162 (2d Cir. 2014) (citation omitted). Review of a jury’s
`
`verdict consists of determining “whether the award is so high as
`
`to shock the judicial conscience and constitute a denial of
`
`justice.” DiSorbo v. Hoy, 343 F.3d 172, 183 (2d Cir. 2003)
`
`(citation omitted).
`
`But, when juries grant large compensatory awards
`for intangible and unquantifiable injuries, such
`as emotional distress, pain, and suffering, we
`are required to subject the trial court’s
`discretion to substantial constraints. Awards
`for mental and emotional distress are inherently
`
`
`
`17
`
`

`

`Case 1:10-cv-03824-DLC Doc #: 340 Filed 03/05/18 Page 18 of 36 Page ID #: 4247
`
`speculative. There is no objective way to assign
`any particular dollar value to distress.
`Nonetheless, as we explained in discussing a
`claim of excessive punitive damages . . . a legal
`system has an obligation to ensure that such
`awards for intangibles be fair, reasonable,
`predictable, and proportionate.
`
`We must ensure proportionality, to control for
`the inherent randomness of jury decisions
`concerning appropriate compensation for
`intangible harm, and to reduce the burdensome
`costs on society of over-extensive damages
`awards. Stampf v. Long Island R.R. Co., 761 F.3d
`192, 205 (2d Cir. 2014) (noting that, if
`appellate courts regularly affirm large damages
`awards in the name of deference to the jury, the
`“baseline of reasonableness will be constantly
`forced upward”).
`
`
`Turley, 774 F.3d at 162 (citation omitted). Determination of
`
`what is fair, reasonable, predictable, and proportionate can
`
`rely upon a survey of damages awards in comparable cases.
`
`Stampf, 761 F.3d at 207.
`
`
`
`If a damages verdict is deemed excessive, the Court must
`
`determine whether the excessive amount is subject to remittitur,
`
`or whether a new trial must be granted without remittitur. “A
`
`remittitur should be granted only where the trial has been free
`
`of prejudicial error.” Ramirez v. New York City Off-Track
`
`Betting Corp., 112 F.3d 38, 40 (2d Cir. 1997). “[T]he size of a
`
`jury’s verdict may be so excessive as to be ‘inherently
`
`indicative of passion or prejudice’ and to require a new trial,”
`
`without remittitur. Id. (citing Auster Oil & Gas, Inc. v.
`
`
`
`18
`
`

`

`Case 1:10-cv-03824-DLC Doc #: 340 Filed 03/05/18 Page 19 of 36 Page ID #: 4248
`
`Stream, 835 F.2d 597, 603 (5th Cir. 1988)). “Influences such as
`
`caprice, passion, bias, and prejudice are antithetical to the
`
`rule of law. If there is a fixture of due process, it is that a
`
`verdict based on such influences cannot stand.” TXO Production
`
`Corp. v. Alliance Resources Corp., 509 U.S. 443, 475-76 (1993)
`
`(O’Connor, J., dissenting) (collecting cases). Prejudice may be
`
`found to exist where the appropriate amount of the remittitur
`
`“is totally out of proportion to the damages” awarded by the
`
`jury. Ramirez, 112 F.3d at 41.
`
`
`
`Calculation of the appropriate amount of a remittitur
`
`requires a judicial determination of the maximum amount of
`
`damages that the record can support. Earl v. Bouchard Transp.
`
`Co., 917 F.2d 1320, 1330 (2d Cir. 1990). Such amounts are
`
`frequently determined with reference to other verdicts and the
`
`experience of the Court. If, with the damages amount remitted,
`
`the verdict can be sustained, then a new trial motion may be
`
`denied conditioned on the plaintiff’s acceptance of the
`
`remittitur.
`
`
`
`Once a court makes a decision requiring a new trial on at
`
`least some issue in the case, the court must then determine
`
`whether a partial new trial is appropriate, or whether the whole
`
`case must be re-tried. In the event the jury’s verdict was the
`
`result of passion or prejudice, the whole matter must be re-
`
`
`
`19
`
`

`

`Case 1:10-cv-03824-DLC Doc #: 340 Filed 03/05/18 Page 20 of 36 Page ID #: 4249
`
`tried, as the prejudice that infected one aspect of the verdict
`
`may have affected the remainder of the verdict as well. See
`
`generally Wagenmann v. Adams, 829 F.2d 196, 216-17 (1st Cir.
`
`1987). If the jury’s verdict, although unsupportable in some
`
`aspects, was not incurably biased, the issue becomes whether the
`
`issues to be retried are separable. See generally Wright &
`
`Miller § 2814. For example, sometimes the amount of damages can
`
`be determined independently from the presentation of the
`
`evidence giving rise to liability. See Mertens v. Flying Tiger
`
`Line, Inc., 341 F.2d 851, 857-58 (2d Cir. 1965). In such a
`
`case, a retrial limited to damages is appropriate. But, when
`
`the issues are inextricably intertwined, such that a proper
`
`determination of the amount of damages requires an evaluation of
`
`the same evidence that gave rise to liability, any retrial must
`
`be on all issues. See Caskey v. Village of Wayland, 375 F.2d
`
`1004, 1009-1010 (2d Cir. 1967) (“Partial new trials should not
`
`be resorted to ‘unless it clearly appears that the issue to be
`
`retried is so distinct and separable from the others that a
`
`trial of it alone may be had without injustice.’” (quoting
`
`Gasoline Products Co. v. Champlin Refining Co., 283 U.S. 494,
`
`500 (1931)).
`
`Sharkey’s claim arises under 18 U.S.C. § 1514A, a portion
`
`of the much broader SOX statute. Section 1514A was passed in
`
`
`
`20
`
`

`

`Case 1:10-cv-03824-DLC Doc #: 340 Filed 03/05/18 Page 21 of 36 Page ID #: 4250
`
`2002, in the wake of financial crises, to help protect
`
`whistleblowers working at covered financial institutions from
`
`retaliation. “To accomplish this goal, § 1514A protects
`
`employees when they take lawful acts to disclose information or
`
`otherwise assist in detecting and stopping actions which they
`
`reasonably believe to be fraudulent.” Bechtel, 710 F.3d at 446
`
`(citation omitted).
`
`“To prevail under § 1514A, an employee must prove
`by a preponderance of the evidence that (1) she
`engaged in protected activity, (2) the employer
`knew that she engaged in the protected activity,
`(3) she suffered an unfavorable personnel action,
`and (4) the protected activity was a contributing
`factor in the unfavorable action.”
`
`Id. at 447 (citation omitted). Protected activity
`
`occurs when an employee:
`
`provides information, causes information to be
`provided, or otherwise assists in an
`investigation regarding any conduct with the
`employee reasonably believes constitutes a
`violation of section 1341 [mail fraud], 1343
`[wire fraud], 1344 [bank fraud], or 1348
`[securities fraud], any rule or regulation of the
`Securities and Exchange Commission, or any
`provision of Federal law relating to fraud
`against shareholders.
`
`
`Nielsen, 762 F.3d at 219 (2d Cir. 2014) (alterations in
`
`original) (citation omitted). “A reasonable belief contains
`
`both subjective and objective components.” Id. at 221.
`
`[T]he plaintiff must have a subjective belief
`that the challenged conduct violates a provision
`listed in § 1514A, and . . . this belief must be
`
`
`
`21
`
`

`

`Case 1:10-cv-03824-DLC Doc #: 340 Filed 03/05/18 Page 22 of 36 Page ID #: 4251
`
`objectively reasonable. . . . The objective
`component of the reasonable belief standard
`should be evaluated based on the knowledge
`available to a reasonable person in the same
`factual circumstances with the same training and
`experience as the aggrie

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