SAN FRANCISCO — An appellate court has thrown out a $3.8 million whistleblower judgment against Bank of America, saying there was no evidence the company dumped a Countrywide executive because he had refused to play ball with Moody’s auditors.
"Although a jury verdict is entitled to broad deference, Winston’s evidence was insufficient to establish Bank of America declined to offer him a job based on impermissible motives," Justice Dennis Perluss wrote for a unanimous Second District Court of Appeal panel in an unpublished opinion, Winston v. Countrywide Financial.
The 2011 verdict had made national headlines as an example of holding powerful executives accountable for corporate malfeasance. "It is the littlest of Davids beating the biggest of Goliaths and taking two of them on at once," plaintiff Michael Winston told The New York Times, referring to BofA and Countrywide, the failed mortgage lender acquired by Bank of America in 2008.
Countrywide had hired Winston three years earlier to help with executive leadership development and succession planning. Things went well during his first year with CEO Angelo Mozilo personally complimenting his work and a human resources publication ranking Winston’s program as among the best in the country. In 2006 he was named a managing director.
Things turned sour by July 2007, when pink vapor from a construction project began wafting into Winston’s office, causing headaches and lung inflammation for him and about 10 colleagues. Winston asked the company to report the matter to Cal-OSHA. When he heard nothing back he phoned Cal-OSHA personally.
Later that year, in connection with a Moody’s Investors Services audit, Countrywide executives asked Winston to downplay the fact that several months had elapsed between the sudden departure of COO Stan Kurland — widely seen as Mozilo’s eventual successor — and the hiring of his replacement. But Winston refused, telling executives, "I am not your guy" to paper over the problem.
This infuriated Mozilo, who demanded Winston be terminated. His supervisors defended him, saying Winston was "an extremely talented, albeit eccentric, individual."
"Eccentric people are by definition not team players," groused Mozilo, who would testify at Winston’s trial.
When BofA bought Countrywide in 2008, only three of the 14 employees from Winston’s division were offered jobs, and he was not one of them. Brian Fishel, the senior vice president at Bank of America who made the hiring decision, said nobody told him anything negative about Winston, but that Fishel himself performed Winston’s job at BofA. He also testified he "found Winston to be arrogant during the interview and did not believe he would fit well with Bank of America’s corporate culture," according to Perluss’ opinion.
Winston received an $877,000 severance package, but despite efforts he described as "Herculean," he was unable to find another job.
He sued BofA, alleging that Countrywide officials must have told Fishel about his blowing the whistle to Cal-OSHA and to Moody’s. The jury agreed, awarding him $3.8 million. Jurors declined to award damages for emotional distress or punitive damages, though.
On Tuesday, even the compensatory damages bit the dust at the Second District. There was no evidence Fishel knew about the construction fumes or the Cal-OSHA report. More to the point, Perluss wrote, BofA didn’t acquire Countrywide for its people.
"Bank of America (in a move it certainly came to regret) acquired Countrywide for its loan portfolio, not its subsidiary support functions," wrote Perluss, who was joined by Justices Fred Woods and Frank Jackson. "Bank of America was a far larger company with substantial existing institutional systems to support its operations."
Davis Wright Tremaine partner Camilo Echavarria argued the case for Countrywide. Norman Pine of Pine & Pine argued for Winston.