forty four thousand dollars in back pay to the point of on both counts surely wasn't well couldn't really according to the court's instructions and this thing this it when th look at the verdict sheet that's what the verdict sheet said the compensatory damage component which was separately charged was was soley based upon the pennsylvania waffle discharge claim because the sox statute awarded damages all three categories are associated with the wrongful termination claim of the pennsylvania state law assuming you won and that this was not  fee shipping element it's considered just a general port under pennsylvania law and there's no fee shift oh mon like you some of the statutes allow for fish like pennsylvania relations act has that but not this general court that there's a court created reading the right your honor there are we the case law is complex with respect to the guidelines for ratios and we have a couple of different positions on that in our  but of course it's never quite defined mathematically what substantial isn't exactly how much is substantial the was a there was a pal decision issued by this court in june i'll be in a different factual s which said that forty five thousand dollars in compensatory damages can be considered substantial part of that time there have been higher numbers that have been don't want to speak ill of your client eat isn't it a kind of a tough posture just to stand up and say after a jury has found that in fact this was retaliatory discharge against somebody who endeavored to do the right thing papered the record pretty dang well in saying hey i'm coming forward i don't want to lose my job i'm just telling you you've got a bad apple here who's doing illegal stuff and then after taking all those steps he and several other people get their heads handed to him because they're calling out corporate wrongdoing at high levels now under those circumstances do you think that maybe a court ought to say  pretty dang reprehensible well your honor the this area of war has been trying to bring something some form of uniformity to approach to what reprehensible to me it's obviously in all of these are only going to be awarded in cases where juries found that there was some sort of outrageous behavior the question then becomes what is it about this particular case that makes reprehensible and there are there are five factors that supreme court  set out for analyzing weapons ability and which this court has applied several times and with all due respect or honor only to those factors of the five were found to be present by the district court it's not that it's not that how many factors did you hit test is it isn't it a how bad does it look i mean what assume that was only one factor but it was really really really bad are you saying well it was just one out of five give me a dollar your honor i i beg to differ but we would say that the the probably the most critical factors are that the courts have repeatedly said that physical injury and health and safety type of ports and no are those resources ought to be the most it could be most severely punished and  that correct wrong well as it's understood that this is not a physical injury case and we take your argument that a physical injury case represents a particularly egregious set of circumstances here with what we are dealing with though tell us why the jury's decision still within a single digit ratio seven one why that was misguided in the light of what you and i and everybody in the misread the briefs knows the record is your honor the first of all what i would say is that only two of the five factors are present and the ratio was not seven to one the ratio was either thirty four to one or eighteen to one in this case depending upon whose forty four thousand dollars in back pay was fifty thousand dollars a compensatory that's ninety four thousand dollars if you have the two together the printers were one point seven million so it was so it was a much higher ratio and we believe that that's what it was it was seventeen or something like this and he thought well it's either thirty forty one if you use the fifty thousand or compensatory number and compare that to the one point seven that's question the by ability of the award and you have a relatively small amount of on the denominator but then you have huge punitive damage award and i think recognizing that the district court and the and have tried to come up with different ways to flip the denominator but i think that all of those are not now a bully accepted by this court or should not be the one of things they argued was that the forty four thousand dollars back pay shouldn't be used you to use the full back pay that the point of sought in the case which was three hundred fifteen thousand dollars and if you if you use that number then you start inflating the denominator you get to a more rational ratio we think that's clearly inappropriate because the jury rejected the three fifteen respond the evidence before it because the point of actually did have substantial income during the bakley period so you want to ask your question we think that the when you look at the three guy posts the reprehensible the guy post you look at the ratio guy post and also when you look at the civil guy posts in pennsylvania there are two relatively similar compared to wars one is the pennsylvania whistleblower statute which protects public sector employees in pennsylvania who c wrongdoing or abuse and that statute does not offer any punitive damages and has a five hundred dollar penalty associated with it and also the pennsylvania immolations act another pennsylvania statute which protects against discrimination and retaliation for complaining about improper acts that are covered also does not offer punitive damages if it pennsylvania common law does right i mean i understand you're saying hey there are some statutes out there that don't but there's no question that something violated and in this case everybody was talking about socks in fact part of his job was to look for whether they were compliant with socks in the same with his immediate or this collins who had that job so it's hard to say that there was no fraud because it doesn't require in terms of the managed this state a wrong earlier but i think you're a opposing counsel corrected me and pointed out that that's that's i mean the one ratio how how can you just how can you yeah to ninety four thousand dollars and eighty to one ratio of course it is but the court's going to say it's not just about math if we're here just to do math that's too easy the three guideposts and this court itself has said you look at the three guidepost let's look at the degree of reprehensive building number one and i'm not even asking you to get out of the single digit ratios i'm just asking you to adopt would judge joyner did which was to say look when they found this conduct was reprehensible you don't need to be a rocket scientist to know that this was reprehensible this was a guy who was responsible for making sure that this company was compliant with the new statute and he blew the whistle on them they called him a whistle blower and they went through tremendous lengths over the next nine months to fire financially vulnerable in two thousand the fact health and safety there was no injury is in the employment context fire the good ones because they'll be able to get a job and mitigate their damage unlike the state farm case we do you really think mr fortune out of it though that the world would take from a reduced economically sensible strategy going forward well i would hope and i would hope that that's isn't that the message that the state interest is that look this is reprehensible conduct election make sure it doesn't happen again i had my rights the law  adopted to supreme court u s one is it economic harm or is it physical harm now the fourth circuit in nantes has included emotional harm as part of physical harm not just economic or now you're in a unique position because in this particular circumstance you're talking about an employment case this isn't a bad faith insurance case like the willow tornado case this is in bad faith insurance like state farm versus campbell this is in the employment context number one and what factored you the emotional harm that was suffered by the  can be more can the physical harm than it is to purely economic harm it's not a decision purely in the economic realm is the phraseology the dischord issues the second i agree it's not the public health and welfare and the safety of public it doesn't involve that second prong the third prong is funny age with beef with a target someone who they knew was financially vulnerable here's a guy who says i'm blowing the whistle i bought a new house i'm newly wed i got a baby on the way i don't want to get in trouble and then on top of that not only do they fire him nine months later they put his wife's company out of business by refusing to pay her invoices all of this is part of the record that is targeting someone that they knowingly knew that they knew was financially vulnerable and then the last prong i don't think you have to persuade is that they were bad actors well that goes but then the last prong is was an intentional was or malice was it reckless or was this mere accident and then so now we're three of the five prongs under degree of reprehensive building and the final one  i was going to say the drink ok but i'll set it aside it's not presidential but from willow you looked in and i think it's the g p your honor you as well wrote that look ok if it's just one person and it's it's repeated within the one person that may be less persuasive and they both of those individuals testified at the trial so you have you have heating at a minimum on three possibly four within a degree reprehensible in which this court has said is the most important factor so now let's go to the ratio all right  let me if i can if it's all right with with my colleagues i just want to be sure i command ask about the socks aspect of this and i understand you don't want that piece of the images number to move  come back in their reply brief and say in effect that mr feliciano hasn't spoken to the nub of the case which is the department of labor applying this sarbanes oxley whistleblower statute saying look it's not enough for you to say they're making me do something illegal they're pirating software or in this case pirating data it's not enough for you to say the company could be hurt with fines and other penalties from regulators for doing bad things there has to be an element of fraud or deception one of the listed problems in the statute in order for us our brains oxley whistleblower protection claim to lie why are they wrong in saying that that's the message of read because i think read was more of a pleading issue your honor than anything else when talking about the stolen software the the the the a l j or the administrative review board there said look he never alleged any violation of the fraud statutes or any other rule or regulation violation of the f c c that it was a internal software issue that he didn't bubble up to the surface to meet one of the pronk set of required of the protected activity statute but here in this case we have and  judge lower mentioned at the outset you have a circumstance where did he provide information that he reasonably believed constituted mail fraud wire fraud or that's the key here to try to get you to focus on that because it's enough it is both objectively and subjectively reasonable right it's not enough that he believed that this was fraud the question also has to be asked was it objectively reasonable for him to think that this was something that this was wire fraud which is what you've built i mean that's the my correct that's the only thing you've built the surround you haven't said well this is number five on the sox list enforcing an s e c regulation right you have  he thought it was wire fraud that's what we're looking at right right well i think wire fraud and mail fraud i think what i'm looking at is that the lower court said that the lower court opinion mentioned mail fraud wire fraud and fraud on the shareholders and the court went through and that's why i think this  i'm telling you that we have a supervisor who's going out to the internet hacking into our competitors websites when you say in the context of an a sarbanes slee audit you know and in fact i'm looking at page four of of your brief where you say from a so auditing perspective each record had to be entered into they've based a particular source and you cite the record there but you don't cite where if it were really the case i guess this poses my question if it were really the case that what was going on was affecting a sarbanes oxley audit why was the argument never made look fraud or no fraud the whistleblower statute says right there the fifth item on the list of things is  a a any problem related to the statute or the regulations associated with sarbanes oxley so we don't have to show from we just have to show that this was something being done pursuant to sarbanes oxley either the statute or the regulations but that argument's never made and i've looked in vain in your statute to find some place where even though you keep saying it's a sock sort of you have various you excuse me your audit that shows this was somehow done pursuant to the statute can you help me with that absolutely your honor i wish it and in hindsight maybe that would have been the better argument to make in the brief but the reality is that it's all laid out in the factual portion look what was going on and look what with the evidence that was proved in the case was and there are sites to the record that mr they they did the barnett educational services fell under the jurisdiction of a character in jim collins beginning of july two thousand and three mr collins testified it's undisputed that he was then responsible for certif for barnett educational services that it was sox compliant that he had task mr feliciano with the with the obligation to check the data can validate it that's where you're putting the ramp in the hat on how much trouble when you say sox compliant i'm sorry fight with i'm just trying to find out what is it where is it where's anything in the stature of the regulations that will tell us that what he was doing mr feliciano had something to do with compliance with sarbanes oxley because that's significant at least to me i'd like to know what if it's in there ok it is in there in it in a record mr collins is testimony and i can't point you to a page as we speak but the reality is that the purpose leaving aside the retaliation aspects of of sarbanes oxley an employee protections it offers its main principle was to make sure publicly traded companies had sufficient controls in place to ensure that they could validate for their shareholders that they were sarbanes oxley compliant leaving aside the employment rahm's we means financial reporting which means that which means that you are reporting to your shareholders that our end of the day numbers are net net profits and what we're saying are profits for shareholders are legitimate exactly so what does going into the database to check the source of marketing information have to do with being financially compline it may be that i've got my answer which is there it's not directly that there are some inferential leap that you're taken but it's not a differential leap at all you're on it is we are the marketing database with the principal source of how they generate revenue for that particular business which went up to the parent company which was publicly then publicly reported that they were there is a little like saying though that's a little like saying if it were a manufacturing operation they're using bad resin and we can show they're using bad resin and therefore  my information about the chemical composition of the resin is really about financial reporting i mean the marketing database was producing the income stream but it wasn't the financial reporting it was something that was used to generate income and the so concern is about are you accurately reflecting your income you know so i'm not seeing your link i don't think it's that i don't think it's epp like what your honor is are you generating revenue from legitimate sources i mean if comp if the writing came in and stole compacts towers and at the end of the day was was putting m c i s on that verizon television in generating revenue from that but they were doing it because in the revenues were higher because they were they were stealing comcast signal and that would not be a legitimate source of revenue for them to be reporting at the end of the day and that's exactly what happened in this case the so your position is your position is any illegality any illegality within a company is ultimately a sachs covered illegality because it can produce a change in bottom line and that makes it subject to sarbanes oxley i don't know that i would say that starkly the only thing that's on appeal your honor is whether mr feliciano engaged in protected activity by saying he reasonably believed that the company was the gauged in mail fraud wire fraud or fraud on the shareholders when he said look you're generating revenue from information that your executives are stealing you're asking me to certify to your shareholders that the source of this information is legitimate i can't do it and then he got fired all the other price so this is just a this big memo his supremacy fifteenth two thousand and three memo and i've read it and i've read it repeatedly and it talks about the f b i and it talks about how being pag as a theft or a pirate or is a death sentence in his profession it talks about nice clear he's clear any skerrick as the facts played out that you know his car her was doing bad stuff and that was bad for the company and she deserved to get the axe and she did but he never anywhere in here says i'm worried about fraud he says i'm worried about the theft that's going on i'm worried about the risk to my reputation if i'm associated with feeding people's data i'm worried about the abuse of our fire walls but he never says and there's fraud here there's deception there's people being fool honor absolute your honor and if that's not fraud if if if ultimately when you're it when you when you're responsible for complying with sarbanes oxley a publicly traded company that this task is underneath an umbrella are we are we s compliant he says you're stealing information and you're using that and i can validate this information for you if that's not fraud if you need to use the word fraud you're right maybe he didn't use the word fraud but the things are only generating revenue from me from an unlawful i'll keep it brief i guess to jordan to pick up with with the questions you had asked that's exactly the point we've made is that this case involved the crime of theft we know we're not saying we're proud of the thought but it was that there was never any you need a lawyer to know the distinction between fraud and that well that's what the district or certainly said but we actually think that there's a common understanding that they often fraud are different people people understand what it means to be defrauded and the problem well let me ask if i could a real practical question which you may not want to answer here but and this is been bugging me since i started with this i do not understand why this case didn't get worked