Winston's job was terminated. He sued, and in one of the few positive outcomes for any white-collar whistleblower anywhere in the post-financial-crisis universe, won a$3.8 million wrongful termination suit against Bank of America last February.Well, just weeks after the PBS documentary aired, the Court of Appeals in the state of California suddenly took an interest in Winston's case. Normally, a court of appealscan only overturn a jury verdict in a case like this if there is a legal error. It's notsupposed to relitigate the factual evidence.Yet this is exactly what happened: The court decided that the evidence that Winstonwas wrongfully terminated was insufficient, and then from there determined that the"legal error" in the original Winston suit against Bank of America and Countrywidewas that the judge in the case failed to throw out the jury's verdict:
In short, having scoured the record for evidence supporting the jury's verdict on theissue of causation, we have found none. It follows that the trial court erred in denying defendants' motion for judgment notwithstanding the verdict.
"I was flabbergasted," Winston says now. "Think of all the hard work the jury did, and[the court] overturns it just like that."While it's impossible to say just exactly what a fair financial award should be for a person who reports bad corporate activity to the public, it's certainly true that whenthese whistleblower suits end in failure, it has a chilling effect on other peoplethinking about coming forward. Not many people are willing to risk their jobs if theythink it will cost them every last dime in the end. This is just one more example of how hard it is for whistleblowers to come out even, even if they win jury trials.That decision came down on February 19th, and is the first of the two interesting post-
footnotes.The other involves some of the comments made by the head of the JusticeDepartment's Criminal Division, Lanny Breuer, who said (as he has on other occasions, including after the recent non-prosecutions of HSBC and UBS for major scandals) that his Justice Department has to weigh the financial consequences of bringing prosecutions. Quoting from the PBS show, Breuer explained:
But in any given case, I think I and prosecutors around the country, being responsible, should speak to regulators, should speak to experts, because if I bring acase against institution A, and as a result of bringing that case, there's some hugeeconomic effect - if it creates a ripple effect so that suddenly, counterparties and other