Where an employer was awarded summary judgment on a former employee’s retaliation counterclaim, that judgment must be vacated based on the existence of a genuine issue of material fact with respect to pretext.
“The defendant and plaintiff in counterclaim in this case, John R. Borzilleri, was employed by the plaintiff and defendant in counterclaim, Shepherd Kaplan Krochuck, LLC (SKK), a registered investment adviser, as a portfolio manager for a private fund affiliated with SKK. In 2014 and 2015, Borzilleri filed two lawsuits under the False Claims Act against nearly twenty major pharmaceutical companies (qui tam lawsuits or qui tam actions). These lawsuits alleged among other things that these pharmaceutical companies conspired to defraud Medicare by colluding to inflate prescription drug prices, causing losses of approximately $200 billion.
“After the United States Department of Justice decided not to intervene in the qui tam lawsuits, and with knowledge about when the lawsuits would be unsealed, see 31 U.S.C. §3730, Borzilleri, who had long been selling short the stock of these pharmaceutical companies, escalated that selling. He also crafted a press release that included information that the qui tam lawsuits had been unsealed and sent it to recipients in the financial and media industries. The complete factual details are well known to the parties and will not be repeated here, but it suffices to say that shortly thereafter he was fired by SKK.
“Litigation ensued. SKK...
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