Argued and Submitted September 10, 2013, San Francisco, California
Appeal from the United States District Court for the District of Nevada. D.C. No. 3:04-cv-00703-RAM. Robert A. McQuaid, Magistrate Judge, Presiding.
Sarbanes-Oxley Act / Postjudgment Interest The panel granted plaintiffs' motion for attorneys' fees and postjudgment interest following its affirmance of the district court's judgment, after a jury trial, in a Sarbanes-Oxley whistleblower case.
Agreeing with the views of the Secretary of Labor, as amicus curiae, the panel held that postjudgment interest on a back pay award in a Sarbanes-Oxley whistleblower case tried in district court is governed by 28 U.S.C. § 1961, the rate that applies to all civil cases in federal district courts, rather than 26 U.S.C. § 6621, the interest rate for underpayment of federal taxes.
The panel referred the matter to the Appellate Commissioner to determine the amount of attorneys' fees, as well as the amount of postjudgment interest.
Mark J. Lenz and Margo Piscevich, Piscevich & Fenner, Reno, Nevada, for Plaintiffs-Appellees.
Deanne E. Maynard, Marc A. Hearron, Brian R. Matsui, and Natalie R. Ram, Morrison & Foerster LLP, Washington, D.C.; Daniel Paul Westman, Morrison & Foerster LLP, McLean, Virginia; Richard G. Campbell, Jr. and Daniel K. O'Toole, Armstrong Teasdale LLP, Reno Nevada, for Defendant-Appellant.
M. Patricia Smith, Solicitor of Labor; Jennifer S. Brand, Associate Solicitor; William C. Lesser, Deputy Associate Solicitor, Megan E. Guenther, Counsel for Whistleblower Programs; Eirik James Cheverud, Attorney, United States Department of Labor, Washington D.C., for Amicus Curiae Secretary of Labor.
Before: J. Clifford Wallace, Sidney R. Thomas, and Jay S. Bybee, Circuit Judges.
BYBEE, Circuit Judge.
This Sarbanes-Oxley whistleblower case is before us for the third time. On the first appeal, we reversed the district court's order granting summary judgment in International Game Technology's (" IGT" ) favor because material facts were in dispute. Van Asdale v. Int'l Game Tech., 577 F.3d 989, 991 (9th Cir. 2009) (" Van Asdale I " ). On remand, a jury returned a verdict in favor of Shawn and Lena Van Asdale on each of their Sarbanes-Oxley claims, and the district court entered judgment consistent with the jury verdict. The district court then denied IGT's post-trial motion for judgment as a matter of law and granted the Van Asdales' motion for fees, costs, and prejudgment interest " in accordance with 29 C.F.R. § 20.58(a), at the rate specified in the Internal Revenue Code, 26 U.S.C. § 6621." Van Asdale v. Int'l Game Tech., at *48, 2011 WL 2118637, at *18 (D. Nev. May 24, 2011).
On the second appeal, we affirmed the denial of IGT's motion for judgment as a matter of law. Van Asdale v. Int'l Game Tech., 549 Fed. App'x 611, 613-14 (9th Cir. 2013) (" Van Asdale II" ). We also observed that the applicable prejudgment interest rate was a novel issue but chose not to address the issue ...