Sanford Wadler. Photo by: Jason Doiy/ALM.

Bio-Rad Laboratories Inc. has asked an appeals court to dismiss one claim and subtract about $2.6 million from the $11 million trial verdict awarded last year to its fired general counsel Sanford “Sandy” Wadler.

Kathleen Sullivan of the New York office of Quinn Emanuel Urquhart & Sullivan filed the memo Monday with the U.S. Court of Appeals for the Ninth Circuit. Sullivan declined to comment, but her memo cited a recent Supreme Court ruling in Digital Realty Trust v. Somers.

Tim Ernst, executive vice president and general counsel at Bio-Rad, said, “Bio-Rad is gratified that the Supreme Court's decision in Digital Realty Trust eliminates any basis for nearly $3 million of the lower court's judgment, and looks forward to presenting its arguments for reversing the remainder of the judgment.”

San Francisco firm Kerr & Wagstaffe, which is representing Wadler, declined comment.

Wadler had reported to Bio-Rad's audit committee that the company may have engaged in overseas bribery in China. A costly internal investigation found no bribery in China, and Wadler was dismissed a few days later.

He filed suit in 2015 and was awarded $11 million plus attorney fees when the jury found his firing was the result of retaliation. Bio-Rad appealed the verdict last October, citing four errors.

One of the alleged errors was that the trial court allowed the jury to apply the Dodd-Frank Act's whistleblowing provisions to Wadler. The brief argued that Dodd-Frank did not apply when the whistleblower only reported alleged misconduct internally, as Wadler did, and not to the U.S. Securities and Exchange Commission. Wadler and the SEC both disagreed.

But on Feb. 21, the U.S. Supreme Court took the same view as Bio-Rad, ruling in a different case that only an individual who reports wrongdoing to the SEC can qualify as a whistleblower under Dodd-Frank.

Bio-Rad had filed its reply brief two weeks earlier in the appeals court, so on Monday Sullivan filed a “citation of supplemental authorities” memo, adding the Supreme Court decision.

The high court ruling “requires reversal of the district court's judgment as to [Wadler's] retaliation claim under Dodd-Frank,” the memo said.

“Accordingly, the judgment on the Dodd-Frank claim, including the $2.96 million in damages attributable solely to that claim, should be reversed,” the memo concluded.

If the Ninth Circuit agrees with Bio-Rad, it is not clear if the court would remand the case back to the trial court,  or simply dismiss the Dodd-Frank claim and subtract an appropriate amount from Wadler's previous award.

If the latter, then Bio-Rad could still pursue its appeal of the remaining award.