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Wadler v. BioRad

(San Francisco, California, February 7, 2017). A unanimous federal jury in San Francisco found that Bio-Rad Laboratories, Inc. illegally fired its former General Counsel in retaliation for blowing the whistle on what he reasonably believed were violations of the Foreign Corrupt Practices Act. The jury awarded Wadler $2.96 million in back pay (which is doubled under the Dodd-Frank Act for a total of $5.92 million) and an additional $5 million in punitive damages.  This notable case was featured in GC Magazine.

Bio-Rad is a Fortune 1000 company, based in the San Francisco Bay Area, with over 8,000 employees worldwide. Wadler was Bio-Rad’s General counsel for over 26 years, and had recently received a highly positive, annual performance review, which the CEO characterized as reflecting “A++” work. Less than two months later (in February 2013) Wadler submitted a memo to the Audit Committee of Bio-Rad’s Board of Directors, alleging that Bio-Rad was likely violating the Foreign Corrupt Practices Act in China. Within two days after learning of Wadler’s protected disclosure, Bio-Rad CEO Norman Schwartz sought to put Wadler on “administrative leave.” Shortly thereafter, handwritten notes from Norman Schwartz and the Chair of the Audit Committee Louis Drapeau identified Wadler as a “whistleblower threat” and “loose cannon.”

Wadler was terminated on June 7, 2013. In the ensuing litigation before the U.S. Department of Labor and in federal court, Bio-Rad executives swore under penalty of perjury that Wadler was fired for “poor performance.” To explain away the exceptionally positive performance review Wadler had just received, Bio-Rad pointed to another, highly negative performance review that it claimed was written shortly before his termination but just never delivered to him. During the lawsuit, however, Bio-Rad’s attorneys were able to determine through examination of computer metadata that this critical document was not created until one month after Wadler was terminated.

“I have never seen anything like this: A Fortune 1000 CEO fires an employee and then creates a performance review a month after the firing to try to justify it,” Wadler’s attorney James M. Wagstaffe of WVBR said.

During the trial, Bio-Rad claimed Wadler came “unglued” in his final months at Bio-Rad, and that repeated outbursts and delays prompted his termination. Bio-Rad also claimed that Wadler had no basis for his Audit Committee memo, and that Wadler tried to set the company up to prevent a meeting with the government about Bio-Rad’s “tone at the top” in connection with prior FCPA violations.

Ultimately, the nine-person jury disagreed with Bio-Rad, and found after less than three hours of deliberation that Bio-Rad fired Wadler for his report to the Audit Committee.

“Whistleblowers like Wadler should be revered, not retaliated against,” Wagstaffe added. “We are hopeful that this verdict will send a strong message to protect other whistleblowers in the future.”

Wadler was represented by a team led by James M. Wagstaffe and Michael von Loewenfeldt.

Bio-Rad and Norman Schwartz were represented by John Potter, Jim Asperger, and Karin Kramer of Quinn Emanuel Urquhart & Sullivan, LLP.

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