Pig in a Poke – My Whistleblower Attorney, Part 2

Pig in a Poke – My Whistleblower Attorney

Few wrongful termination cases like mine are decided in court, but one San Francisco plaintiff attorney warned that 75% of wrongful termination cases that do not settle outside of court are decided in favor of the company.  Success was far from certain even though I was confident of proving my complaint.  I figured that HomeFirst’s nonprofit status might argue for a low settlement amount.  A New Jersey plaintiff attorney listed 60 settlements he had achieved with an average settlement amount of $300,000.  Another site contended that the average settlement is $150,000 rather than the sometimes reported $1 million figure and encouraged plaintiffs to be reasonable and not to expect a windfall.

In reply to Jaffe’s email I suggested $200,000 for a demand figure.  The figure less Jaffe’s fees would roughly equal the amount that HomeFirst directors had kicked around in March and also roughly equal to one year’s compensation.  The amount equaled about five months’ compensation from June through November plus 2.8 times compensation for my guess of “non-economic losses.”  It made good sense to me based on solid internet research.

I set a target, and now Jaffe’s task was to get there through negotiation.  I heard nothing until a week later when I sent a follow-up email asking what the next step was.  “Send a demand letter,” Bailey Bifoss, Jaffe’s associate and a graduate of Golden Gate University where Layton taught, replied.  I asked, when might that be; probably today, she replied.  Her short email to Layton suggested $200,000 and asked for Layton’s response as soon as possible.  After I followed-up with Jaffe a week later, Layton apologized and promised to reply by the end of the week.

Bifoss warned me that litigation is expensive and involves discoveries, depositions, interrogatories, and responses, all of which are time-consuming and stressful.  In addition, cutbacks in State funding meant that a court date might be 15 months or more after the preliminaries are completed, pushing resolution out beyond two years.  Jaffe preferred pre-litigation mediation, she said, because it costs only about $6,000 for the day and can be scheduled within a couple of months.  The mediation, which is chaired by a professional mediator in private practice or with an organization like JAMS, a dispute resolution organization, requires each side to put all of their cards on the table with the intent to come to an agreement.  To ensure that the day is not wasted, the parties might first bracket their agreeable settlement ranges, she said.  How well mediation works depends on the willingness of the sides to negotiate, and so far Layton had not presented a very conciliatory face.

After another week of silence, I followed up with Bifoss.  Layton responded to Bifoss’ call by proposing an “early mediation.”  Bifoss recommended that we propose a settlement range of $25,000 to $195,000 to make sure that Layton was serious about the mediation.   I said that $25,000 was too low and that $50,000 would be better and would be in line with a goal minimum of $90,000.  Jaffe weighed in, stressing the importance of using $25,000 in order to get the negotiations moving, based on his extensive experience.  He would insist that all decision makers be present: CEO Jenny Niklaus, the insurance company representative, and Layton.  Layton came back saying that she was not a bracket person and the insurance company representative could not be physically present.  My team had frittered away its negotiating position, but that was no matter because we had a case.

Jaffe scheduled a mediator from the list that Layton provided: a retired judge Santa Clara County judge who seemed to be qualified enough.  The mediation meeting would be just before Thanksgiving, two months away.  My additional investment in the project would be half of the $6,000 mediator’s fee.

Two weeks prior to the scheduled meeting, after hearing nothing from Jaffe in the interim, I emailed Bifoss asking whether we needed to discuss preparation for the mediation meeting.  She said that she would send me a draft brief on the following Monday, November 17, the day before it was due to the mediator.  Then I answered, no, I had not had a conversation with Jaffe about “dollar amount expectations.”  Bifoss also wanted to chat about information I had obtained from Jenny’s emails.  I explained again that I had access to the emails because of my rights as CFO and duties as Compliance Officer to investigate potential wrongdoing. 

On Monday, Jaffe and Bifoss called to discuss the emails.  Jaffe said that they should not be mentioned during the mediation because they could create a big problem for us due to the “unclean hands” and “after-acquired evidence” defenses.  If HomeFirst could show that I committed some termination-worthy misconduct in obtaining the emails, they could have complete or partial defense against my claim.  I had my doubts.  I figured: regardless of the legal merits of my claim that I had obtained the emails legitimately, contest by Layton would mean additional costs and risks for Jaffe that he had to weigh against his 40% of any possible additional settlement result.  In conclusion, Jaffe said that he hoped to be able to get between $50,000 and $65,000 without spending the day in mediation.  That would save us all a lot of inconvenience.

I had my pig, and I was riding into battle.