Van Asdale v. International Game Technology , 549 F. App'x 611 ( 2013 )

FILED
NOT FOR PUBLICATION SEP 27 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHAWN VAN ASDALE; LENA VAN No. 11-16538
ASDALE,
D.C. No. 3:04-cv-00703-RAM
Plaintiffs - Appellees,
v. MEMORANDUM*
INTERNATIONAL GAME
TECHNOLOGY,
Defendant - Appellant.
SHAWN VAN ASDALE; LENA VAN No. 11-16626
ASDALE,
D.C. No. 3:04-cv-00703-RAM
Plaintiffs - Appellants,
v.
INTERNATIONAL GAME
TECHNOLOGY,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Nevada
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Robert A. McQuaid, Magistrate Judge, Presiding
Argued and Submitted September 10, 2013
San Francisco, California
Before: WALLACE, THOMAS, and BYBEE, Circuit Judges.
After this court reversed the district court’s summary judgment in favor of
International Game Technology (IGT), a jury found IGT liable under the
whistleblower-protection provisions of the Sarbanes-Oxley Act. IGT appeals from
the district court’s denial of its post-trial motion for judgment as a matter of law. It
also appeals the damages awarded to Shawn Van Asdale and the pre-judgment
interest, costs, and fees awarded to Shawn and Lena Van Asdale. The Van Asdales
cross-appeal the district court’s summary judgment in favor of IGT on their state-
law claims and from the court’s refusal to certify an issue to the Nevada Supreme
Court.
We have jurisdiction under 28 U.S.C. § 1291 and we affirm.
I. IGT’s appeal
A. We will uphold a district court’s decision denying a motion for judgment
as a matter of law unless “the evidence, construed in the light most favorable to the
nonmoving party, permits only one reasonable conclusion, and that conclusion is
2
contrary to the jury’s verdict.” Theme Promotions, Inc. v. News Am. Mktg. FSI,
546 F.3d 991, 999 (9th Cir. 2008).
IGT argues that the district court erred by denying its motion for judgment
as a matter of law because no reasonable jury could have concluded that the Van
Asdales proved the elements of their Sarbanes-Oxley claims. Specifically, it
argues that no reasonable jury could decide that the Van Asdales had an
objectively reasonable belief that shareholder fraud occurred or that they reported
the suspected fraud to the sole decision maker.
We disagree. Previously, we held that “it was objectively reasonable for
Shawn and Lena to suspect that the non-disclosure of the Flyer prior to the merger
could have been deliberate.” Van Asdale v. Int’l Game Tech., 577 F.3d 989, 1001
(9th Cir. 2009) (“Van Asdale I”). In Van Asdale I, we also explained that the Van
Asdales’ supervisors knew of their whistleblowing because of Shawn’s
conversations with Ms. Brown and Mr. Pennington and the Van Asdales’ meeting
with Mr. Johnson. Id. at 1002-03. Because there was substantial evidence at trial
for the jury to conclude, as we did, that the Van Asdales disclosed their objectively
reasonable suspicions to their supervisors, the verdict was not unreasonable.
3
B. Next, IGT argues that the award of damages to Shawn was not supported
by the evidence because the jury recognized that he failed to mitigate, but still
awarded him the exact amount of his lost but unvested stock options.
IGT makes a good point that the amount of damages awarded is not likely
coincidental. Nevertheless, because the jury used a general verdict form we cannot
speculate about the jury’s thought process. Porterfield v. Burlington N. Inc., 534
F.2d 142, 147 (9th Cir. 1976). And because substantial evidence supports the
award, we defer to the jury’s findings. Del Monte Dunes at Monterey, Ltd. v. City
of Monterey, 95 F.3d 1422, 1435 (9th Cir. 1996).
C. Finally, IGT argues that the district court erroneously calculated pre-
judgment interest based on 29 C.F.R.§ 20.58(a). Additionally, it contends that the
court erred by using a varying interest rate because 29 C.F.R. § 20.58(a) states that
interest “shall remain fixed for the duration of the indebtedness.” These are novel
issues, but because IGT did not object to the pre-judgment interest rate that the
district court used, we need not address them. Janes v. Wal-Mart Stores Inc., 279
F.3d 883, 887 (9th Cir. 2002).1
II. The Van Asdales’ cross-appeal
1
We do not address IGT’s sole argument regarding costs and fees because
we affirm the judgment.
4
The Van Asdales argue that the district court mistakenly dismissed their
Nevada state-law claims for tortious discharge,, interference with contractual
relations, and intentional infliction of emotional distress. They also argue that the
court abused its discretion by failing to certify a question regarding tortious
discharge to the Nevada Supreme Court.
Nevada’s tortious-discharge law states that an employee must expose an
employer’s illegal activity to the proper authorities, not merely to a supervisor, to
be entitled to protection for whistleblowing. Wiltsie v. Baby Grand Corp., 774
P.2d 432, 433 (Nev. 1989) (per curiam). Here, there is no evidence that the Van
Asdales spoke to authorities.2 Moreover, because Wiltsie is controlling Nevada
law, there was no reason to certify a question to the Nevada Supreme Court.
Intentional interference with contractual relations requires proof that the
alleged wrongdoer intentionally disrupted a contractual relationship. Sutherland v.
Gross, 772 P.2d 1287, 1290 (Nev. 1989) (per curiam). Here, Shawn’s3 double
hearsay testimony was the only evidence that IGT acted wrongfully. Because the
2
Lena also claims she was discharged because of marital status. Her
argument is waived because she did not make it before the district court. See
Pfingston v. Ronan Eng’g Co., 284 F.3d 999, 1003–04 (9th Cir. 2002).
3
Lena alleges IGT interfered with her contract with Walker Digital.
Because she “failed to present any argument or pertinent authority” on this claim, it
is waived. See United States v. Tisor, 96 F.3d 370, 376 (9th Cir. 1996).
5
district court correctly determined that no hearsay exceptions or exemptions
applied, there is no evidence supporting Shawn’s claim.
To prove “severe or extreme emotional distress” in Nevada, a plaintiff
typically must “demonstrate that he or she has suffered some physical
manifestation of emotional distress.” Betsinger v. D.R. Horton, Inc., 232 P.3d 433,
436 (Nev. 2010). The Van Asdales have not done so here.
III. Conclusion
For the foregoing reasons, the judgments in both cases are
AFFIRMED.
6