Petition for Writ of Certiorari — Jackie Hosang Lawson, Petitioner v. FMR LLC, dba Fidelity Investments, et al.

Supreme Court briefMay 29, 2019

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APPENDIX

APPENDIX A

United States Court of Appeals

For the First Circuit

No. 17-2220

JACKIE HOSANG LAWSON, Plaintiff, Appellant, v.

FMR LLC, d/b/a Fidelity Investments; FMR CORP.,

d/b/a Fidelity Investments; FIDELITY

BROKERAGE SERVICES, LLC, d/b/a Fidelity

Investments, Defendants, Appellees.

Before

Howard, Chief Judge,

Torruella and Thompson, Circuit Judges.

JUDGMENT

Entered: March 18, 2019

Plaintiff-appellant Jackie Hosang Lawson

appeals from a judgment in favor of defendants on her

claims of retaliatory termination for whistleblowing

activities. Following a two-week trial, a jury returned

a verdict in favor of defendants FMR, Inc., Fidelity

Investments, and various other Fidelity entities.

Many of the issues Lawson raises are raised for the

first time on appeal, which means our review is for

plain error only. That is an especially difficult test to

meet in civil cases, and we are not persuaded that

Lawson has met that standard here. See Rosa-Rivera

v. Dorado Health. Inc.. 787 F.3d 614, 620 (1st Cir.

2015) (“A finding of plain error is a rarity in civil

cases.”). Nor do we conclude that the district court

abused its discretion or otherwise erred with respect

to the claims that were raised below. After a careful

review of the entire record, the submissions of the

parties, and those arguments Lawson sufficiently

develops in her opening brief, we affirm.

First, Lawson challenges the district court’s

denial of a motion to compel discovery. We have

considered the claim carefully and conclude that the

ruling did not mark an abuse of discretion by the

district court and, moreover, did not prejudice

Lawson, who was invited to submit narrower

document requests but declined, for the most part, to

do so. See Pina v. Children’s Place. 740 F.3d 785, 790 ,

(1st Cir. 2014) (standard of review).

Second, Lawson’s claim that the district court

erred by excluding the testimony of her expert

witness, which is reviewed for abuse of discretion, see

Rodriguez v. SmithKline Beecham. 224 F.3d 1, 8-9

(1st Cir. 2000), is unconvincing. The district court

supportably found that the proffered testimony,

where not irrelevant to the issues presented by the

case, improperly impinged upon the role of the court

in instructing jurors on the applicable legal

standards.

Third, we find no error, plain or otherwise, in

the statements made by defendant’s counsel in closing

argument. The challenged statements were supported

by testimony or documents presented at trial, and

Lawson has failed to demonstrate that they were

improper. In any event, even “improper remarks

made during closing arguments rarely are so serious

as to constitute reversible error.” Venson v.

Altamirano. 749 F.3d 641, 657 (7th Cir. 2014). The

comments challenged in this appeal do not rise to that

level.

Fourth, we discern no error in the court’s

decision to omit certain jury instructions requested by

the plaintiff, a claim not raised below and therefore

also reviewed for plain error. See Rosa-Rivera. 787

F.3d at 618-19. Similarly, we discern no error, plain

or otherwise, in the format of the verdict slip provided

to the jury.

Fifth, we find unconvincing Lawson’s claim

that the verdict was unsupported by the evidence

presented at trial. As an initial matter, Lawson did

not lodge any objection to the jury’s verdict or seek a

new trial on any ground at the end of proceedings

below. As such, this claim is waived. Puerto Rico

Aqueduct & Sewer Auth. v. Constructora Lluch, Inc..

169 F.3d 68, 82 (1st Cir. 1999)(“A motion for a new

trial must be made in the first instance before the

trial court, particularly where the weight of the

evidence is at issue . . . The failure to move for a new

trial waives the issue on appeal.”); see also Travers v.

Flight Servs. & Svs.. Inc.. 808 F.3d 525, 537 (1st Cir.

2015) (explaining that, even if failure to raise

evidence-bound argument in new trial motion does

not effect waiver, such claim would be forfeited and

reviewed at most for plain error). In any event, even

if the claim were not waived, it is unconvincing. In

challenging the verdict, Lawson asks this court to

resolve factual disputes, weigh conflicting evidence,

and render credibility determinations in a manner

contrary to the manner in which the jury resolved

those issues. This is not a proper role for this court,

which “take[s] the record in the light most flattering

to the nonmoving party, without probing the veracity

of the witnesses, resolving conflicts in the testimony,

or assaying the weight of the evidence” and which

“may reverse . . . only if reasonable persons could not

have reached the conclusion that the jury embraced.”

Correa v. Host). San Francisco. 69 F.3d 1184, 1191

(1st Cir. 1995)(internal citations omitted).

Sixth, we discern no error or abuse of discretion

in the district court’s determination that Lawson was

not a “prevailing party” for purposes of recovering an

award of attorney’s fees. Lawson has failed to

demonstrate that obtaining an interlocutory ruling

permitting her to move forward with her case in the

face of a dismissal motion qualifies her as a

“prevailing party” for fee-shifting purposes. See

Hewitt v. Helms. 482 U.S. 755, 760 (1987) (holding

that a plaintiffs “interlocutory ruling that his

complaint should not have been dismissed for failure

to state a constitutional claim” is “not the stuff of

which legal victories are made” and, therefore, could

not ground prevailing party status for fee-shifting

purposes).

Finally, Lawson’s most recent motion to file a

supplemental appendix is denied for the reasons

provided by the court when rejecting similar motions

previously filed by Lawson. See United States v.

Rivera-Rosario. 300 F.3d 1, 9 (1st Cir. 2002) (a motion

under Fed. R. App. P. 10(e) “‘is designed to only

supplement the record on appeal so that it accurately

reflects what occurred before the district court’”)

(quoting Belber v. Linson. 905 F.2d 549, 551 n.l (1st

Cir. 1990)).

The judgment of the district court is affirmed.

Any remaining pending motions are denied as moot.

By the Court:

Maria R. Hamilton,

Clerk

cc:

Paul F. Kelly

James A.W. Shaw

Jackie Hosang Lawson

William H. Kettlewell

Victoria L. Steinberg

Alexandra G. Watson

APPENDIX B

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

JACKIE HOSANG LAWSON,

Plaintiff,

)

FMR LLC, dba FIDELITY INVESTMENTS,

)

FMR CORP., dba FIDELITY INVESTMENTS, )

and FIDELITY BROKERAGE SERVICES

)

LLC, dba FIDELITY INVESTMENTS,

)

Defendants.

)

CIVIL ACTION NO.

08-10466-DPW

JUDGMENT

WOODLOCK, District Judge

In accordance with the Jury Verdict returned

on November 14, 2017, it is hereby ORDERED,

ADJUDGED AND DECREED:

Judgment for the Defendants against the

Plaintiff.

BY THE COURT,

/s/ Barbara I. Beatty

Deputy Clerk

DATED: November 14, 2017

APPENDIX C

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

JACKIE HOSANG LAWSON,

Plaintiff,

)

FMR LLC, dba FIDELITY INVESTMENTS; )

FMR CORP., dba FIDELITY

)

INVESTMENTS; and FIDELITY

)

BROKERAGES SERVICES LLC, dba

)

FIDELITY INVESTMENTS

)

Defendants.

CIVIL ACTION NO.

08-10466-DPW

VERDICT

I.A

Has Ms. Lawson proven by a preponderance of

the evidence she had an actual subjective belief

that Fidelity’s conduct could constitute violation

of Federal law relating to fraud against

Fidelity’s Mutual Fund shareholders?

(ANSWER “YES” OR “NO”)

l.B

NO.

Has Ms. Lawson proven by a preponderance

of the evidence she had an objectively

reasonable belief that Fidelity’s conduct

could constitute violation of Federal law

relating to fraud against Fidelity’s Mutual

Fund shareholders?

(ANSWER “YES” OR “NO”)

NO.

If you have answered “NO” to either Question

1A or Question 1.B, answer no further questions

and sign, date the last page and return your Verdict.

Otherwise, turn to Question 2.

What is the earliest date Ms. Lawson has

proven by a preponderance of the evidence

Fidelity had notice she was engaged in the

protected activity of providing information

concerning her reasonable belief that

Fidelity’s conduct could constitute violation

of Federal law relating to fraud against

Fidelity’s Mutual Fund shareholders?

(ANSWER BY IDENTIFYING DATE, MONTH

and YEAR)

Answer only those questions in the subparts

of Section 3.A concerning activity occurring on or

after the date you have established in your

Answer to Question 2.

3.A

Has Ms. Lawson proven by a preponderance

of the evidence she suffered adverse

employment action by Fidelity in any one or

more of the following ways?

(i)

She was constructively discharged

from employment in September 2007.

(ANSWER “YES” OR “NO”)

_____.

(ii)

She undeservedly received no salary

increase in July 2007.

(ANSWER “YES” OR “NO”)

(iii)

She received a lower than deserved

bonus and no Chairman’s shares in

December 2006.

(ANSWER “YES” OR “NO”)

(iv)

She received a lower than deserved

salary increase in July 2006.

(ANSWER “YES” OR “NO”)

She received a lower than deserved

bonus and no Chairman’s shares in

December 2005.

(ANSWER “YES” OR “NO”)

(v)

(vi)

She received a lower than deserved

salary increase in July 2005.

(ANSWER “ YES” OR “NO”)

_____.

(vii)

She was subjected to harassment in

her workplace.

(ANSWER “YES” OR “NO”)

If you have answered “NO” to all Questions

in the subparts of Section 3.A, answer no further

questions and sign, date the last page and return

your Verdict. Otherwise, turn to Section 3.B.

Answer only those questions in the subparts

to Section 3.B parallel to those questions in the

subparts of Section 3 A. to which you have answered

“YES.”

3.B

Has Ms. Lawson proven by a preponderance of

the evidence that retaliation for engaging in

the protected activity of providing information

concerning her reasonable belief that

Fidelity’s conduct could constitute violation of

Federal law relating to fraud against

Fidelity’s Mutual Fund shareholders was a

contributing factor to any adverse

employment action you have found in your

answers to the questions posed in Section 3.A?

(i)

She was constructively discharged from

employment in September 2007.

(ANSWER “YES” OR “NO”)

____ .

(ii)

She undeservedly received no salary

increase in July 2007.

(ANSWER “YES” OR “NO”)

(iii)

She received a lower than deserved

bonus and no Chairman’s shares in

December 2006.

(ANSWER “YES” OR “NO “)

_____.

(iv)

She received a lower than deserved

salary increase in July 2006.

(ANSWER “YES” OR “NO”)

She received a lower than deserved

bonus and no Chairman’s shares in

December 2005.

(ANSWER “YES” OR “NO”)

(v)

(vi)

She received a lower than deserved

salary increase in July 2005.

(ANSWER “ YES” OR “ NO”)

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____ .

(vii)

She was subjected to harassment in her

workplace.

(ANSWER “YES” OR “NO”)

___

If you have answered “NO” to all questions

in the subparts of Section 3.B that you are

obligated to answer, then answer no further

questions and sign, date the last page and return

your Verdict. Otherwise, turn to Section 3.C.

Answer only those questions in the subparts

to Section 3.C parallel to those questions in the

subparts of Section 3.B to which you have

answered “YES.”

3.C

Has Fidelity has [si'c] proven by clear and

convincing evidence that it would have

taken the same adverse employment action

you have found retaliatory in response to

questions posed in Section 3.B with respect

to Ms. Lawson, regardless of Ms. Lawson’s

protected activity?

(i)

She was constructively discharged

from employment in September 2007.

(ANSWER “YES” OR “NO”)

_____.

(ii)

She undeservedly received no salary

increase in July 2007.

(ANSWER “YES” OR “NO”)

_____.

(iii)

She received a lower than deserved

bonus and no Chairman‘’s shares in

December 2006.

(ANSWER “YES” OR “ NO”)

_____.

11a

(iv)

She received a lower than deserved

salary increase in July 2006.

(ANSWER “YES” OR “NO”)

____

(v)

She received a lower than deserved

bonus and no Chairman’s shares in

December 2005.

(ANSWER “YES” OR “NO”)

____

(vi)

She received a lower than deserved

salary increase in July 2005.

(ANSWER “YES” OR “NO”)

____

(vii)

She was subjected to harassment in

her workplace.

(ANSWER “YES” OR “NO”)

____

If you have answered “YES” to all

questions that you are obligated to answer in

the subparts to Section 3.C, answer no

further questions and sign, date the last page

and return your Verdict. Otherwise, turn to

the instructions for Question 4.A(i).

Answer Question 4.A(i) only if you have answered

“NO” to any one or more of Questions 3.C(ii)-(vii)

you were obligated to answer. Otherwise, turn to

the instructions for Question 4.A(ii)(a).

4.A

(i) What dollar amount of damages, if any,

has Ms. Lawson proven by a preponderance

of the evidence Fidelity owes her as lost

wages and other economic benefits through

the date of this trial as a result of

retaliatory adverse employment action she

received while she was employed by

Fidelity?

12a

Answer in Dollars(“$”) OR “NONE.”

Answer Question 4.A(ii)(a) only if you have

answered “NO” to Question 3.C(i).

(ii) (a) Has Fidelity proven by a

preponderance of the evidence that Ms.

Lawson failed to mitigate her damages for

lost wages and other economic benefits

after she left Fidelity’s employ?

(ANSWER “YES” OR “NO”)

If you have answered “YES” to Question 4.A(ii)(a),

you may include in any damage amount you

determine in your answer to Question 4.A(ii)(b)

below only damages for any time period, after her

employment with Fidelity and up to the date of

your verdict, during which you find Ms. Lawson

used reasonable diligence under the

circumstances to reduce her damages.

(ii) (b) What dollar amount of damages, if

any, has Ms. Lawson proven by a

preponderance of the evidence Fidelity owes

her as lost wages and other economic

benefits after she left Fidelity’s employ

through the date of this trial?

Answer in Dollars (“$”) OR “NONE.”

4.B.

What dollar amount of damages, if any, has

Ms. Lawson proven by a preponderance of

the evidence Fidelity owes her for emotional

13a

distress as a result of the retaliatory

employment action you have found?

Answer in Dollars (“$”) OR “NONE.”

Ip 1/■

r//

/FOREPERSON

11/14/17

DATE

14a

APPENDIX D

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

JACKIE HOSANG LAWSON,

Plaintiff,

FMR LLC, dba FIDELITY INVESTMENTS;

FMR CORP., dba FIDELITY

INVESTMENTS; and FIDELITY

BROKERAGES SERVICES LLC, dba

FIDELITY INVESTMENTS

Defendants.

)

CIVIL ACTION NO.

08-10466-DPW

MEMORANDUM AND ORDER

July 12, 2018

Along the path to an unsuccessful jury verdict

with respect to her claim of alleged illegal retaliation

by her employer Fidelity Investments, the plaintiff,

Jackie Hosang Lawson, achieved an important

interlocutory victory in the Supreme Court affirming

the right to pursue such a theory under the SarbanesOxley Act, 18 U.S.C. § 1514A. Lawson v. FMR LLC,

571 U.S. 429, 134 S.Ct 1158, 188 L.Ed.2d 158 (2014).1

1 The instant case was one of two separate matters —

this one brought by Ms. Lawson, the other by Jonathan Zang,

15a

Ms. Lawson now seeks a partial award of attorney

fees for that interlocutory success.

Ms. Lawson’s right to attorney fees turns on

whether she may be termed a prevailing party in a

case where judgment on the merits of her substantive

claims ultimately entered for the defendant. Hewitt v.

Helms, 482 U.S. 755, 759, 107 S.Ct. 2672, 96 L.Ed.2d

654 (1987) (“In order to be eligible for attorney’s fees

. . . a litigant must be a ‘prevailing party.’”). She

asserts she is a prevailing party to the degree of her

interlocutory victory because the first of the prayers

she made for relief in her complaint was for a

declaration that the defendant “Fidelity Investments,

as a contractor and/or a subcontractor to Fidelity

Mutual Funds, is a covered employer under 18 U.S.C.

§ 1514A.” That is the legal issue as to which she was

successful in the Supreme Court.

As a formal procedural predicate for attorney

fees on this basis, Ms. Lawson seeks to amend the

judgment in this case to recognize by means of a

Zang v. Fidelity Management & Research Co., No. 08-cv-10758DPW — in which by a consolidated memorandum I declined to

grant a motion to dismiss Sarbanes-Oxley whistleblower claims

against Fidelity entities. Lawson v. FMR LLC, 724 F. Supp. 2d

141 (D. Mass. 2010). I certified my decision for interlocutory

appeal. Lawson v. FMR LLC, 724 F. Supp. 2d 167 (D. Mass.

2010). On appeal, the First Circuit reversed my underlying

decision with respect to the applicability of the Sarbanes-Oxley

whistleblower claims. Lawsonv. FMR LLC, 670 F.3d 61 (1st Cir.

2012). The Supreme Court in turn reversed the decision of the

First Circuit. Lawsonv. FMR LLC, 571 U.S. 429, 134 S.Ct. 1158,

188 L.Ed.2d 158 (2014). Mr. Zang thereafter settled his case with

Fidelity. Ms. Lawson proceeded to trial where the jury rejected

her Sarbanes-Oxley claim on the merits. She is pursuing an

appeal prose. Lawsonv. FMR LLC, appeal docketed No. 17-2220

(1st Cir. Dec. 19, 2017).

16a

separate declaration her interlocutory procedural

victory. I decline to engage in that sleight of hand. The

core purpose of a declaratory judgment is the

termination of the case or controversy before the court

on the basis of largely undisputed facts. 28 U.S.C.

§ 2201(a) (authorizing federal courts to “declare the

rights and other legal relations of any interested

party seeking such declaration, whether or not

further relief is or could be sought” and noting that

“[a]ny such declaration shall have the force and effect

of a final judgment or decree”); see Hewitt, 482 U.S.

at 760-63 (noting that a declaratory judgment is a

form of “[rjedress . . . sought through the court, but

from the defendant” and concluding that “a favorable

judicial statement of law in the course of litigation

that results in judgment against the plaintiff does not

suffice to render him a ‘prevailing party’” because a

favorable statement of law that has no impact on the

relationship between the plaintiff and the defendant

is not equivalent to a declaratory judgment)

(emphasis in original). This case was never in that

posture. I would not in the ordinary course enter a

declaratory judgment that did not serve the core

purpose of the declaratory judgment procedure. To do

otherwise would be to issue an advisory opinion.

More specifically, I conclude that in the context

of this litigation, the declaration sought in Ms.

Lawson’s prayer for relief does not exist as a

standalone claim. Rather, it is a procedural

dimension to the substantive claim Ms. Lawson

unsuccessfully pursued. Achieving an interlocutory

procedural victory in a case where final judgment

enters for the opposing party, does not confer

prevailing party status upon the party against whom

final judgment enters. See Buckhannon Bd. & Care

17a

Home, Inc. v. West Virginia Dep’t ofHealth & Human

Res., 532 U.S. 598, 603, 121 S.Ct. 1835, 149 L.Ed.2d

855 (2001) (“a 'prevailing party’ is one who has been

awarded some relief by the court.”); Hewitt, 482 U.S.

at 760 (noting that a plaintiff must “receive at least

some relief on the merits of his claim before he can be

said to prevail” and that “an interlocutory ruling that

[a plaintiffs] complaint should not have been

dismissed for failure to state a constitutional claim

... is not the stuff of which legal victories are made”);

Hanrahan v. Hampton, 446 U.S. 754, 758-59, 100

S.Ct. 1987, 64 L.Ed.2d 670 (1980) (“Congress

intended to permit the interim award of counsel fees

only when a party has prevailed on the merits of at

least some of his claims,” and “procedural or

evidentiary rulings . . . were . . . not matters on which

a party could ‘prevail.’”); Gay Officers Action League

v. Puerto Rico, 247 F.3d 288, 293 (1st Cir. 2001) (“a

plaintiff prevails when actual relief on the merits of

his claim materially alters the legal relationship

between the parties by modifying the defendant’s

behavior in a way that directly benefits the plaintiff.”)

(quoting Farrar v. Hobby, 506 U.S. 103, 111-12, 113

S.Ct. 566, 121 L.Ed.2d 494 (1992)) (internal quotation

marks omitted).

The fully and vigorously litigated trial of this

case on the merits underscores that Ms. Lawson’s

success in establishing a right to pursue her claims

was only one hurdle to resolution on the merits. While

grounding that right in the Sarbanes-Oxley Act was a

necessary condition to prevailing status for her, it was

not sufficient. Artificially restyling the basis for

pursuing the claim as a separate declaratory

judgment does not transform ultimate lack of success

into a partial victory entitled to recognition as a basis

18a

for establishing prevailing party status under the law

of attorney fees.

Accordingly, I hereby DENY both the motion

(#378) to alter judgment and the motion (#380) for

attorney fees.

/s/Douglas P. Woodlock

DOUGLAS P. WOODLOCK

UNITED STATES DISTRICT JUDGE

19a

APPENDIX E

STATUTES AND REGULATIONS

INVOLVED

18 U.S. Code § 1512. Tampering with a witness,

victim, or an informant

(a)

(1) Whoever kills or attempts to kill another

person, with intent to—

(A) prevent the attendance or testimony of

any person in an official proceeding;

(B) prevent the production of a record,

document, or other object, in an official

proceeding; or

person to a law enforcement officer or

judge of the United States of information

relating to the commission or possible

commission of a Federal offense or a

violation of conditions of probation,

parole, or release pending judicial

proceedings; shall be punished as

provided in paragraph (3).

(2) Whoever uses physical force or the threat

of physical force against any person, or

attempts to do so, with intent to—

(A) influence, delay, or prevent the

testimony of any person in an official

proceeding;

(B) cause or induce any person to—

20a

(i) withhold testimony, or withhold a

record, document, or other object,

from an official proceeding;

(ii) alter, destroy, mutilate, or conceal

an object with intent to impair the

integrity or availability of the object

for use in an official proceeding;

(iii) evade legal process summoning

that person to appear as a witness, or

to produce a record, document, or

other object, in an official proceeding;

(iv) be absent from an official

proceeding to which that person has

been summoned by legal process; or

communication to a law enforcement

officer or judge of the United States of

information relating to the commission or

possible commission of a Federal offense

or a violation of conditions of probation,

supervised release, parole, or release

pending judicial proceedings; shall be

punished as provided in paragraph (3).

(3) The punishment for an offense under this

subsection is—

(A) in the case of a killing, the punishment

provided in sections 1111 and 1112;

(B) in the case of—

(i) an attempt to murder; or

(ii) the use or attempted use of

physical force against any person;

21a

imprisonment for not more than 30

years; and

physical force against any person,

imprisonment for not more than 20 years.

(b) Whoever knowingly uses intimidation,

threatens, or corruptly persuades another person,

or attempts to do so, or engages in misleading

conduct toward another person, with intent to—

(1) influence, delay, or prevent the testimony

of any person in an official proceeding;

(2) cause or induce any person to—

(A) withhold testimony, or withhold a

record, document, or other object, from an

official proceeding;

(B) alter, destroy, mutilate, or conceal an

object with intent to impair the object’s

integrity or availability for use in an

official proceeding;

person to appear as a witness, or to

produce a record, document, or other

object, in an official proceeding; or

(D) be absent from an official proceeding

to which such person has been summoned

by legal process; or

(3)

hinder,

delay,

or prevent the

communication to a law enforcement officer or

judge of the United States of information

relating to the commission or possible

commission of a Federal offense or a violation

of conditions of probation [1] supervised

22a

release,, [1] parole, or release pending judicial

proceedings; shall be fined under this title or

imprisoned not more than 20 years, or both.

(1) alters, destroys, mutilates, or conceals a

record, document, or other object, or attempts

to do so, with the intent to impair the object’s

integrity or availability for use in an official

proceeding; or

(2) otherwise obstructs, influences, or

impedes any official proceeding, or attempts

to do so, shall be fined under this title or

imprisoned not more than 20 years, or both.

(d) Whoever intentionally harasses another

person and thereby hinders, delays, prevents, or

dissuades any person from—

(1) attending

proceeding;

testifying

official

(2) reporting to a law enforcement officer or

judge of the United States the commission or

possible commission of a Federal offense or a

violation of conditions of probation

supervised release,,1 parole, or release

pending judicial proceedings;

(3) arresting or seeking the arrest of another

person in connection with a Federal offense;

(4) causing a criminal prosecution, or a parole

or probation revocation proceeding, to be

sought or instituted, or assisting in such

prosecution or proceeding; or attempts to do

23a

so, shall be fined under this title or

imprisoned not more than 3 years, or both.

(e) In a prosecution for an offense under this

section, it is an affirmative defense, as to which

the defendant has the burden of proof by a

preponderance of the evidence, that the conduct

consisted solely of lawful conduct and that the

defendant’s sole intention was to encourage,

induce, or cause the other person to testify

truthfully.

(f) For the purposes of this section—

(1) an official proceeding need not be pending

or about to be instituted at the time of the

offense; and

(2) the testimony, or the record, document, or

other object need not be admissible in

evidence or free of a claim of privilege.

(g) In a prosecution for an offense under this

section, no state of mind need be proved with

respect to the circumstance—

(1) that the official proceeding before a judge,

court, magistrate judge, grand jury, or

government agency is before a judge or court

of the United States, a United States

magistrate judge, a bankruptcy judge, a

Federal grand jury, or a Federal Government

agency; or

(2) that the judge is a judge of the United

States or that the law enforcement officer is

an officer or employee of the Federal

Government or a person authorized to act for

or on behalf of the Federal Government or

24a

serving the Federal Government as an

adviser or consultant.

(h) There is extraterritorial Federal jurisdiction

over an offense under this section.

(i) A prosecution under this section or section

1503 may be brought in the district in which the

official proceeding (whether or not pending or

about to be instituted) was intended to be affected

or in the district in which the conduct constituting

the alleged offense occurred.

(j) If the offense under this section occurs in

connection with a trial of a criminal case, the

maximum term of imprisonment which may be

imposed for the offense shall be the higher of that

otherwise provided by law or the maximum term

that could have been imposed for any offense

charged in such case.

(k) Whoever conspires to commit any offense

under this section shall be subject to the same

penalties as those prescribed for the offense the

commission of which was the object of the

conspiracy.

18 U.S. Code § 1514A. Civil action to protect against

retaliation in fraud cases

(a)Whistleblower Protection for of Publicly Traded

Companies.—No company with a class of securities

registered under section 12 of the Securities

Exchange Act of 1934 (15 U.S.C. 1S1), or that is

required to file reports under section 15(d) of the

Securities Exchange Act of 1934 (15 U.S.C. 78o(d))

including any subsidiary or affiliate whose financial

information is included in the consolidated financial

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statements of such company, or nationally recognized

statistical rating organization (as defined in section

3(a) of the Securities Exchange Act of 1934 (15 U.S.C.

78c), [1] or any officer, employee, contractor,

subcontractor, or agent of such company or nationally

recognized statistical rating organization, may

discharge, demote, suspend, threaten, harass, or in

any other manner discriminate against an employee

in the terms and conditions of employment because of

any lawful act done by the employee—

(1) to provide information, cause information to be

provided, or otherwise assist in an investigation

regarding any conduct which the employee

reasonably believes constitutes a violation of

section 1341, 1343, 1344, or 1348, any rule or

regulation of the Securities and Exchange

Commission, or any provision of Federal law

relating to fraud against shareholders, when the

information or assistance is provided to or the

investigation is conducted by—

(A) a Federal regulatory or law enforcement

agency;

(B) any Member of Congress or any committee

of Congress; or

the employee (or such other person working

for the employer who has the authority to

discover,

terminate

investigate,

misconduct); or

(2) to file, cause to be filed, testify, participate in,

or otherwise assist in a proceeding filed or about

to be filed (with any knowledge of the employer)

relating to an alleged violation of section 1341,

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1343, 1344, or 1348, any rule or regulation of the

Securities and Exchange Commission, or any

provision of Federal law relating to fraud against

shareholders.

(b) Enforcement Action.—

(l)In general.—A person who alleges discharge or

other discrimination by any person in violation of

subsection (a) may seek relief under subsection

(c), by—

(A) filing a complaint with the Secretary of

Labor; or

(B) if the Secretary has not issued a final

decision within 180 days of the filing of the

complaint and there is no showing that such

delay is due to the bad faith of the claimant,

bringing an action at law or equity for de novo

review in the appropriate district court of the

United States, which shall have jurisdiction

over such an action without regard to the

amount in controversy.

(2) Procedure.—

(A)In general.—

An action under paragraph (1)(A) shall be

governed under the rules and procedures set forth

in section 42121(b) of title 49, United States Code.

(B)Exception.—

Notification made under section 42121(b)(1) of

title 49, United States Code, shall be made to the

person named in the complaint and to the

employer.

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(C)Burdens of proof.—

An action brought under paragraph (1)(B) shall be

governed by the legal burdens of proof set forth in

section 42121(b) of title 49, United States Code.

(D)Statute of limitations.—

An action under paragraph (1) shall be

commenced not later than 180 days after the date

on which the violation occurs, or after the date on

which the employee became aware of the

violation.

(E)Jury trial.—

A party to an action brought under paragraph

(1)(B) shall be entitled to trial by jury.

(1)In general.—

An employee prevailing in any action under

subsection (b)(1) shall be entitled to all relief

necessary to make the employee whole.

(2)Compensatory damages.

Relief for any action under paragraph (1) shall

include—

(A) reinstatement with the same seniority

status that the employee would have had, but

for the discrimination;

(B) the amount of back pay, with interest; and

sustained as a result of the discrimination,

including litigation costs, expert witness fees,

and reasonable attorney fees.

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(d)Rights Retained by Employee.—

Nothing in this section shall be deemed to diminish

the rights, privileges, or remedies of any employee

under any Federal or State law, or under any

collective bargaining agreement.

(e) Nonenforceability of Certain Provisions Waiving

Rights and Remedies or Requiring Arbitration of

Disputes.—

(1)Waiver of rights and remedies.—

The rights and remedies provided for in this

section may not be waived by any agreement,

policy form, or condition of employment, including

by a predispute arbitration agreement.

(2)Predispute arbitration agreements.—

No predispute arbitration agreement shall be

valid or enforceable, if the agreement requires

arbitration of a dispute arising under this section.

Rule 702. Testimony by Expert Witnesses

A witness who is qualified as an expert by knowledge,

skill, experience, training, or education may testify in

the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other

specialized knowledge will help the trier of fact to

understand the evidence or to determine a fact in

issue;

(b) the testimony is based on sufficient facts or data;

and methods; and

(d) the expert has reliably applied the principles and

methods to the facts of the case.

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28 U.S. Code § 1254. Courts of appeals; certiorari;

certified questions

Cases in the courts of appeals may be reviewed by the

Supreme Court by the following methods:

(1)

By writ of certiorari granted upon the petition of any

party to any civil or criminal case, before or after

rendition of judgment or decree;

(2)

By certification at any time by a court of appeals of

any question of law in any civil or criminal case as to

which instructions are desired, and upon such

certification the Supreme Court may give binding

instructions or require the entire record to be sent up

for decision of the entire matter in controversy.

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.