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“Malicious prosecution is a tricky tort under New Jersey law,” says Kevin McNulty, a partner with Newark’s Gibbons, Del Deo, Dolan, Griffinger & Vecchione. His colleague and partner John Gibbons goes further: “The law is generally hostile.” They should know. They just won a reversal of a $1,652,000 judgment to plaintiffs Luis Trabal and Jerome Ford, who also learned how tough it is to make a malicious-prosecution claim stick. Trabal and Ford were armored truck guards who in June 1993 were accused by their employer, Wells Fargo Armored Services Corp., of stealing a money bag stuffed with $190,000 in bills from a loading dock in Lyndhurst, N.J. The pair were jailed for two nights, fired and subsequently indicted. But three years later, the criminal case fell apart when the lone eyewitness lost credibility due to an unrelated guilty plea and a bizarre revision of his original story. Once the charges were dismissed, Trabal and Ford sued Wells Fargo for malicious prosecution and a host of other charges. In May 2000, a jury in federal court — where the company had removed the case based on diversity — awarded the ex-guards a combined $1,652,000. The jurors concluded that Wells Fargo signed criminal complaints out of malice because there was no probable cause to accuse the men of taking the bag. However, the company appealed, using lawyers McNulty and Gibbons, and on Oct. 16 the 3rd U.S. Circuit Court of Appeals overturned the verdict in Trabal v. Wells Fargo Armored Services Corp., 00-2511. In a 12-page opinion, a three-judge panel found that federal Judge Alfred Wolin of the U.S. District Court for the District of New Jersey had made pretrial and trial errors, including his instructions to the jury. More important, the judges cited a line of state cases that make it clear that so long as a reasonable person could conclude that there were some circumstances supporting probable cause to make the accusation, there can be no malicious prosecution. Third Circuit Judge Theodore McKee wrote that probable cause was the sine qua non of malicious prosecution, quoting from Lind v. Schmid, 337 A.2d 365, 368 (N.J. 1975), in which the court defined probable cause as meaning “reasonable grounds for suspicion supported by circumstances sufficiently strong in themselves to warrant an ordinarily cautious person in the belief that the accused is guilty of the offenses with which he is charged.” Put another way, it is not enough for the plaintiffs to show that they lost their jobs and suffered the humiliation of jail and accusations of being thieves for a crime that in the eyes of the law they did not commit. Under New Jersey malicious-prosecution law, they have no case unless they can prove that the defendant company lacked probable cause. Ultimately, the 3rd Circuit found that Wells Fargo’s security chief in Lyndhurst, William Cianci, had plenty of evidence to point the finger at three guards — one of whom never sued after the indictments were dropped — at the time he signed the criminal complaint. Timing is key, emphasized McKee, writing that it’s the evidence at hand at the time the accusation is made that counts, not how weak the case might look later on. “When Cianci filed the criminal complaint, he possessed sufficient evidence to reasonably believe that [plaintiffs] Trabal and Ford were parties to the theft,” wrote McKee, adding later, “The fact that [eyewitness Carlos] Rodriguez was later to be considered an unreliable witness does not negate what Cianci knew when he initiated charges.” WHO STOLE THE MONEY BAG? Most of the facts of the case are undisputed. There were eight men on the loading dock on the morning of June 16, 1993, at the Lyndhurst location of Wells Fargo, which is not affiliated with the bank of the same name and is now part of Securitas AB of Sweden, the world’s largest security company. The money bag was checked out of a vault by Robert Emond, who later reported it missing when he and his partner reached the bank that was scheduled to receive it. Emond and his partner were the initial suspects of Wells security chief Cianci. But then the eyewitness, Carlos Rodriguez, came forward. He said, and later swore in two statements, that Emond was horsing around and dropped his pants. In the course of the horseplay, Emond’s cart broke loose and rolled across the floor, causing one bag to fall off. Rodriguez said he saw Trabal pick up the bag and toss it onto another truck — not Emond’s truck — before kicking the cart back to Emond. That truck was assigned to plaintiff Ford and his partner, Jack D’Elia. When Cianci interviewed the men five days later, Ford and D’Elia admitted they made an unauthorized and unlogged stop at D’Elia’s home the day of the theft. A day later, Cianci called in a Lyndhurst police detective, James Mileski, who reinterviewed the guards with Cianci. While Trabal and D’Elia gave written statements, Ford invoked his Miranda rights and left the interview. Rodriguez refused to be interviewed, left and resigned from Wells. But before leaving, he reiterated to Cianci his account, saying he was quitting because a union representative had threatened to “find the rat” who implicated fellow union members. Later, though, he did sign the two sworn statements. On June 24, 1993, Cianci filed criminal complaints against Trabal, Ford and D’Elia, and in March 1994 a state grand jury indicted the trio. But three years later, a judge dismissed the indictments on the voluntary application of Bergen County Assistant Prosecutor James Addis. Addis had two problems with his eyewitness, Rodriguez. First, Rodriguez had in the interim pleaded guilty to endangering a minor. Second, he elaborated his original story by saying that Emond had dropped his pants on the dock so that he could “urinate into the air and catch it in his mouth.” Addis felt the revised statement so bizarre, that, coupled with the guilty plea, Rodriguez’s credibility as a witness was shot. Later in 1996, Trabal and Ford sued separately in state court, alleging malicious prosecution, false arrest, wrongful termination, negligence and slander. Trabal was represented by Joseph Charles Jr. of Newark’s Ashley & Charles, while Ford reached out to Howard Sims of Santoro & Santoro in South Plainfield, N.J. The cases, after reaching federal court, were consolidated, with only the malicious-prosecution claims surviving. PLAINTIFFS WIN BEFORE TRIAL Wells Fargo went to trial with Howard Schwartz, a partner with Morristown, N.J.’s Porzio, Bromberg & Newman. But Schwartz had a rough road at the March 2000 trial because of a crucial pretrial ruling by Wolin. Wolin not only denied Schwartz’s summary judgment motion to dismiss — based on Wells’ assertion that the plaintiffs could not establish malice because Cianci had sufficient evidence to establish probable cause to file the criminal charges — but he granted partial summary judgment to the plaintiffs sua sponte, as Charles and Sims had not filed cross-motions. Moreover, there were no oral arguments, and Wolin didn’t give Schwartz an opportunity to respond to his intention to rule for the guards regarding the central question of probable cause, a procedural error, according to the circuit court. Wolin, in granting summary judgment for the plaintiffs, concluded that Wells lacked probable cause to prosecute the guards. So the trial was just on the issue of malice. At the end of the trial, Wolin outlined for the jury the four elements in state case law needed to prove malicious prosecution: (a) that the employer had indeed filed the criminal charges; (b) that it had no probable cause; (c) that the charges were lodged with legal malice; and (d) that the criminal case ended in favor of the plaintiffs. The judge told the jurors that elements (a) and (d) were undisputed, then told them that element (b) had been decided by him as a matter of law and that he had concluded that Wells lacked the probable cause needed to make the charge. But Wolin went further, according to the appellate ruling, instructing the jurors that they could infer the remaining element of the cause of action, malice, from the lack of probable cause. Not surprisingly, finding no probable cause, the jury concluded that the company acted maliciously. The 3rd Circuit panel, which included Chief Judge Edward Becker, bypassed the procedural issues, including the defense charge that Wolin had no right to decide probable cause because that was a fact question for the jury. Instead the panel tackled the substance issue of whether Wells security chief Cianci had probable cause. Wolin found that Cianci did not, in part because he concluded there was no corroboration to Rodriguez’s eyewitness account, and because he believed the company’s investigation to be incomplete and speculative. In particular, the judge said Cianci had not probed Rodriguez’s credibility initially; had not checked the credit status of Trabal or Ford to see if they were motivated by financial troubles; and had not interviewed everyone, including one person on the dock that day. But the panel, agreeing with Gibbons, who argued the case on appeal, and McNulty, who prepared Wells’ brief, found that Cianci had plenty to go on. The court pointed to the two sworn statements by Rodriguez, as well as to the admission by Ford and D’Elia that they made an unauthorized and unlogged stop at D’Elia’s house later that day. They also concluded that Rodriguez’s explanation for why he suddenly quit was not unreasonable. Finally, they noted that a state grand jury indicted all three men based on the evidence. The subsequent unreliability of Rodriguez is immaterial, said the court. Plaintiffs’ attorneys Charles, who is a state assemblyman, and Sims did not return a call seeking comment. Defense attorney McNulty, a former chief of appeals with the U.S. Attorney’s Office in Newark, says Schwartz had virtually no chance once Wolin ruled for the plaintiffs on the probable cause question. Gibbons, the former chief judge of the 3rd Circuit, says that the line of cases in New Jersey on malicious prosecution is especially tough on plaintiffs when the defendant company is a security firm or where the theft of a large amount of money is at stake. Says Gibbons, “Particularly with people dealing with large amounts of money, such as the case with companies like Wells Fargo, they have to be able to aggressively go after people if they have a reasonable suspicion. It’s like what Willie Sutton said when they asked him why he robbed banks. He said, ‘Because that’s where the money is.’ “

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