Sanford Wadler, former general counsel of Bio-Rad. Photo credit: Jason Doiy/ALM

Bio-Rad Laboratories Inc. has appealed to the U.S. Court of Appeals for the Ninth Circuit to overturn the $11 million verdict that its former general counsel, Sanford Wadler, won in February in a whistleblower suit.

Wadler filed suit in 2015 following his firing from Bio-Rad. The former GC was fired soon after reporting to Bio-Rad's audit committee that the company may have engaged in bribery in China. A costly internal investigation found no bribery had occurred in the country.

Wadler's attorney, James Wagstaffe, partner and co-founder of Kerr & Wagstaffe in San Francisco, said in an interview Monday, “It is troubling that Bio-Rad wants to appeal this when the matter was resolved and the jury believed Sandy Wadler.”

In its appellate brief filed Oct. 16, Bio-Rad asks the court to overturn the verdict and dismiss the case, or at least to grant a new trial.

The filing cites four alleged trial errors that Bio-Rad claims occurred in the U.S. District Court for the Northern District of California. The 61-page brief, filed by Quinn Emanuel Urquhart & Sullivan partner Kathleen Sullivan, claims:

• No properly instructed jury could have found that Wadler's whistleblowing was protected by the Sarbanes-Oxley Act.

• Wadler failed to prove that he had an “objectively reasonable belief” of bribery or violations of the Foreign Corrupt Practices Act.

• The trial court barred Bio-Rad from presenting two pieces of evidence about Wadler, and these incidents represented “serious evidentiary errors.”

• The Dodd-Frank Act's whistleblowing provision, allowed by the trial court, does not apply to internal reporting.

In an amicus brief filed in support of Wadler at trial, the U.S. Securities and Exchange Commission argued for recognizing retaliation against a whistleblower under Dodd-Frank, even when the allegation is made internally and not to regulators.

The jury sided with Wadler and the SEC, and in February awarded him $2.9 million in back pay and stock compensation, which was doubled under the law, plus $5 million for punitive damages against Bio-Rad. The company also agreed to pay $3.5 million in attorney fees and costs.

Wagstaffe said his brief in response to Bio-Rad “will be very descriptive of what the jury found, that you have to be an honest and in good faith whistleblower, but you don't have to be right.”

He said the jury also found that the company was not telling the truth when it claimed a negative employment review was a “contemporaneous document” used when it fired Wadler. The computer data showed the document was written a month after Wadler left and was post-dated.

“The jury cared a great deal about the fabrication of evidence by Bio-Rad,” Wagstaffe said. “And the jury obviously believed Sandy Wadler was a whistleblower in good faith. That's not something to appeal; that's a finding of fact by the jury.”

Sanford Wadler, former general counsel of Bio-Rad. Photo credit: Jason Doiy/ALM

Bio-Rad Laboratories Inc. has appealed to the U.S. Court of Appeals for the Ninth Circuit to overturn the $11 million verdict that its former general counsel, Sanford Wadler, won in February in a whistleblower suit.

Wadler filed suit in 2015 following his firing from Bio-Rad. The former GC was fired soon after reporting to Bio-Rad's audit committee that the company may have engaged in bribery in China. A costly internal investigation found no bribery had occurred in the country.

Wadler's attorney, James Wagstaffe, partner and co-founder of Kerr & Wagstaffe in San Francisco, said in an interview Monday, “It is troubling that Bio-Rad wants to appeal this when the matter was resolved and the jury believed Sandy Wadler.”

In its appellate brief filed Oct. 16, Bio-Rad asks the court to overturn the verdict and dismiss the case, or at least to grant a new trial.

The filing cites four alleged trial errors that Bio-Rad claims occurred in the U.S. District Court for the Northern District of California. The 61-page brief, filed by Quinn Emanuel Urquhart & Sullivan partner Kathleen Sullivan, claims:

• No properly instructed jury could have found that Wadler's whistleblowing was protected by the Sarbanes-Oxley Act.

• Wadler failed to prove that he had an “objectively reasonable belief” of bribery or violations of the Foreign Corrupt Practices Act.

• The trial court barred Bio-Rad from presenting two pieces of evidence about Wadler, and these incidents represented “serious evidentiary errors.”

• The Dodd-Frank Act's whistleblowing provision, allowed by the trial court, does not apply to internal reporting.

In an amicus brief filed in support of Wadler at trial, the U.S. Securities and Exchange Commission argued for recognizing retaliation against a whistleblower under Dodd-Frank, even when the allegation is made internally and not to regulators.

The jury sided with Wadler and the SEC, and in February awarded him $2.9 million in back pay and stock compensation, which was doubled under the law, plus $5 million for punitive damages against Bio-Rad. The company also agreed to pay $3.5 million in attorney fees and costs.

Wagstaffe said his brief in response to Bio-Rad “will be very descriptive of what the jury found, that you have to be an honest and in good faith whistleblower, but you don't have to be right.”

He said the jury also found that the company was not telling the truth when it claimed a negative employment review was a “contemporaneous document” used when it fired Wadler. The computer data showed the document was written a month after Wadler left and was post-dated.

“The jury cared a great deal about the fabrication of evidence by Bio-Rad,” Wagstaffe said. “And the jury obviously believed Sandy Wadler was a whistleblower in good faith. That's not something to appeal; that's a finding of fact by the jury.”