TRENTON, N.J. (Legal Newsline) - An executive who claimed she was fired because she objected to an illegal kickback scheme was entitled to $1.8 million under a federal whistleblower law but her employer was also entitled to collect hundreds of thousands of dollars from her in unjustly awarded bonuses, a New Jersey appeals court ruled.
Min Amy Guo was a research executive at Novartis Pharmaceuticals in 2012 earning more than $220,000 a year when she learned of plans to pay McKesson, a major drug distributor, some $240,000 to conduct a study on a breast cancer drug. Novartis had previously settled federal claims it had violated the False Claims Act and an anti-kickback law. Guo claimed she had been trained to look out for studies that had negligible value but could be a way of funneling illegal kickbacks to vendors.
After alerting her superiors, a Novartis executive complained in an e-mail that it was “unwise to have another `internal review’ by Amy and her group” because it might delay the breast cancer study project and “send a wrong signal” to McKesson.
Later that year, two of Guo’s subordinates told a senior executive she had asked them to evade legal and compliance requirements on two other studies. In the following investigation, Novartis found that Guo had engaged in “numerous violations of company policy” including conducting improper studies and failing to correct overpayments to customers. Yet the report didn’t recommend discipline and the plaintiff received a positive performance review in 2013.
An internal review committee later recommended the plaintiff be fired, however, and she was terminated with severance pay in July 2013. She then sued, accusing Novartis of violating the Conscientious Employee Protection Act, which prohibits employers from retaliating against whistleblowers.
Novartis countersued for unjust enrichment, arguing Guo had improperly collected performance bonuses while violating company policy. At a 2019 trial, the jury found for both parties, awarding Guo $1.8 million under CEPA but also ordering her to repay $345,000 in past bonuses. Both sides appealed, but in a July 25 decision, the appellate division of the Superior Court of New Jersey upheld the twin verdicts.
The appeals court rejected Novartis’s argument the verdict against it should have been thrown out for lack of evidence. There was “little direct evidence” to support the plaintiff’s claim and “ample evidence” she had unjustly enriched herself at Novartis’s expense, the court acknowledged, but enough on both sides for a jury to determine the facts.
“The jury was not bound to simply accept defendant's evidence, considerable though it may have been, at face value,” the court ruled.
The court also rejected Novartis’s argument the jury’s double verdict proved it was confused. The jury could find that not only had the plaintiff suffered retaliation, the court ruled, but that she had engaged in “numerous violations of company policy” justifying a clawback of her past incentive awards.
The court also upheld an award of $8,466 in attorney fees against the plaintiff for “disruptive conduct during the trial” and her own attorney fees of $1.5 million.