Appeal Brief

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Case Number: 16-3577

Case Name: Abdul Jaludi v Citigroup

INFORMAL BRIEF

  1. Jurisdiction: What order(s) of the district court or agency are you appealing?

This is an appeal from 2 particular orders entered in case No. 3:15 –cv-02076 of the Federal District Court for the Eastern District of Pennsylvania, by Honorable Magistrate Judge Joseph F. Saporito, Jr. and Honorable District Judge Malachy E. Mannion. The appellant appeals the decision of the trial court concerning order (document 41) and memorandum (document 40) dated 8/30/2016 (case dismissal and rendering moot objection to striking of motion for summary judgment),  and order and memorandum dated 6/21/2016 (striking of motion for summary judgment) docket number 32 & 33.

  1. When did you file your notice of appeal or petition for review?

Objection on order striking summary judgment was submitted to the district court on 7/8/2016, the deadline issued by Judge Saporito in docket number 33.

Appeal to the Third Circuit Court of Appeals was filed on 9/8/2016, docket number 42.

  1. Statement of the case:

District court struck a motion for summary judgment as premature even though it was filed over six months after the case was opened.

District court dismissed and closed the case in favor of arbitration even though the Dodd-Frank act of 2010 made arbitration agreements which forced arbitration of SOX claims illegal, and the cause of action occurred years after the agreement was no longer in effect.

  1. Statement of facts:

 

Summary

I developed an application called WAIS that automated a function performed by approx 30 highly technical staff members and saving millions of dollars per year but was told to relinquish ownership, management and operation control of the application to another team then rated below average in the yearly performance review.

I took a ‘dysfunctional’ team composed of 34 technical staff members managing 12,000 servers with a four week turnover for monitoring and in two years transformed it into team of 24 members managing 85,000 servers with instant monitoring but had the team taken away, demoted and rated below average.

I found the family banking concept in the 2012 global banking challenge, picked as the co-winner of an concept expected to generate $100 million in revenue the first year according to marketing firm IDEO but was rated below average that same year because I raised objections to O&T’s hiding of serious system problems, preventing me and my team from meeting our goal of reducing these types of problems.

On April 21st of 2013 Citigroup made an example of Plaintiff by demoting then dismissing him after 24 years of exemplary service in retaliation of his protected whistle blowing activities regarding Don Callahan’s O&T division’s hiding of critical system problems affecting large numbers of customers or large dollar amounts from business division executives and federal regulators. However, Don Callahan’s group continued the retaliation by preventing Plaintiff from obtaining employment through October 15th of 2015, leading him to file this lawsuit that same month.

 

Detail

In early 2010, in my role as manager of the North America event management team, it was my responsibility to ensure trouble tickets are created for every incident which may affect customers. As a member of the global problem management committee one of my functions was to ensure incidents were properly resolved, prevented from recurring and properly tracked in the problem management system (EMS). It was in these capacities that I found problem management (EMS) tickets were either being deleted, reclassified to a lower severity or not being created at all.

Severity one problem (EMS) tickets are for problems affecting large dollar amounts, such as hundreds of millions in deposits that don’t get posted to customer accounts within regulatory requirements, or tens of thousands of debits that are doubled, or problems that affect large numbers of customers, such as a system problem that prevents all banking customers from withdrawing funds, or prevents them from accessing their accounts.

All severity one EMS tickets are required to be sent to the Office of the Comptroller of the Currency (OCC), the federal agency that regulates large financial organizations. Hundreds of severity one problems that should have been reported to the OCC were not being sent. These were either being deleted or lowered to a lesser severity so they wouldn’t have to be reported. In addition, O&T help desks which usually get notifications of system problems, began a practice of refusing to open a severity one EMS ticket unless they absolutely had to, such as a caller escalating an issue.

I reported these issues to my management and was told everyone knew what’s being done and that it was being done to make O&T look good. There had been a directive to reduce severity one problems and this was how it was being done, by manipulating the problem management system or preventing issues from being reported. I kept reporting this issue to senior management, through emails, using the ethics complaint system, to the CIO’s, Jagdish Rao, town hall through the website and in person.

I had also sent an email to the CEO, Vikram Pandit  in early 2010, regarding management practices within O&T. About a week later I was called go see the O&T North America data center head, Tony DiSanto, who was unhappy that I had written to the CEO. He said that Don Callahan, Citi’s CAO, had called him and read him the email over the phone then asked Tony to take care of it. Going forward, Mr. DiSanto wanted me to send any issues I found directly to him.

During this timeframe my management kept telling me I should keep my mouth shut. My former manager, Silvio Ottolia, had also told me that Tony DiSanto hated my guts and wanted me fired.

In the 2rd quarter of 2010 Silvio told me I was being moved down one level, and would be reporting to Steve D’Amato. I was told to go visit my new boss. After this conversation I went to see my current manager, Christine Cullison and asked her if it was true, that I had been moved down one level and she said it was out of her hands. She said this was being ordered by Mr. Montufar (now South America CTI head reporting to Jagdish Rao)) under the premise of consolidating the mainframe automation and distributed event management teams. Both Steve and I reported to Christine, who said I was much more qualified and the best individual to manage the combined team, but that her hands were tied.

She told me to put together a presentation of my accomplishments for her to present to her new boss (Larry Proctor). Within a few days, while I was on vacation and working on the presentation, new org charts were made and sent out showing me reporting to one of Steve D’amato’s directs, lowering me down two levels.

I voiced my concerns about what was happening behind closed doors to Silvio, Christine and Larry and was promised by Larry that a fair selection process would take place, even though new org charts had already been distributed. Nothing happened until a month later, in early 3rd quarter 2010, when my teams, which included North America event management and the command center automation teams, were taken away from me.

For two months I had no staff reporting to me nor was I given any work to do. Then, in late 4Q 2010, I was transferred to a development group (Data Center automation with the O&T engineering and development division) reporting to Motti Finkelstein.  About two months later a new manager (Madhu Aiyappen) was transferred from CTI to manage the group. In 1Q 2011, Madhu demoted me to an entry level Unix administrator position, even though I had no Unix experience. I sent Madhu an email asking for a reason for the demotion but never received a response, either in person or through email.

The first end review said I did not meet expectations, even though I had developed a new application for the security team which had addressed several audit issues and saved the company money. TK would later tell me off the record that Madhu had given him the material to put into the review.

In 3Q 2011, Citi create a contest to find the best future of banking ideas. I submitted an idea (Family Banking) which made it into the top ten. I asked management within CTI and CATE for support, to encourage their staff to review the ideas, but not a single email or mention of support was provided.

Without any support from CATE, and limited support from CTI, my idea was selected as the winning idea in March 2012 (the judges modified the rules to selected two winning ideas at the request of one of the judges Francesco – CEO of CTS division, so there were two winning ideas, mine and one submitted by a team from the same division as the judge who changed the rules).

During the presentations in March, Francesco noticed in my bio that I was writing a book on Command Centers and asked for my help with his business command center. He asked me to help the Command Center located in Delaware (BCC) implement monitoring. Over the next few months I met with management and staff within the BCC and sent Francesco and the BCC recommendations for automating and streamlining the center.

In 3Q 2012 I was contacted again by Francesco asking for help with the BCC again. I had a one hour private face to face meeting with Francesco where he seemed desperate for help. Clients had been calling with service complaints. For example, he referred to an incident affecting Exxon. Customer transactions sent by Exxon to Citi had not been processed until three days later, after Exxon staff called asking about the transactions. The Exxon CEO had called the Citi CEO and Francesco to complain. His directive to me, which I had confirmed via email, was to help the BCC prevent customer outages or to reduce outage durations and to implement better monitoring and reporting so that Citi management knows about these issues internally rather than from clients.

I performed a full review of the BCC incident management process and found that outages and outage durations have been going up. The main issue I found was that they tried to avoid opening trouble tickets, and if they did, created them as level two rather than level one so they wouldn’t have to be reported to the regulators. For example, even though a post mortem report was created for the Exxon issue, no trouble or problem management ticket was ever created. While trying to address this I spoke to the manager for the Delaware BCC, Angelo Markakius, who said they will not change their policy of not opening tickets for every problem since it would make their metrics look bad, and that they would keep issues as severity two so that they would not get reported to the regulators.

In 4Q 2012 I sent a note to Jon Beyman regarding these practices and the lack of a problem manager for the CTS division, and some suggestions. He said he had other ideas and would be happy to speak to me about them. I attempted to meet with Jon numerous times but was either ignored or told he was too busy.

I made recommendations to CTS and CTI regarding improving the BCC incident and problem management process. Work had begun on implementing these recommendations with a weekly meeting to review the process.

The second problem I found was that for the problems that were tracked with a trouble ticket, at least 25% were caused by the developers when making changes. While examining the trouble tickets I had seen problem the customers faced that lasted days or would resurface weeks later. Once corporate customer threatened to leave the bank if the issue wasn’t resolved soon.

As with CTI, the O&T division managing technology for the CTS (Citigroup Transaction Services, which managed large transactions for corporate customers) and led by Jon Beyman, had a policy of hiding problems so they wouldn’t have to be reported to the regulators.

In Dec 2012, I was told by Beyman that I was wasting his staff’s time and to immediately stop what I was doing.

In Feb 2013 I was dismissed, even though the department I worked in was not being relocated anywhere and was part of the group to help implement improvements within Citi. I had also written a book on process improvements (The Art of Process Improvement) and although I had done this within CTI, was never asked to perform this function within Madhu’s team, instead asked to install and test software on Unix servers, which I had never done before in my 26 years at Citi.

Shortly after Mike Corbatt took office I sent him an email mentioning some of my accomplishements and that I was being unfairly treated by management. Did not get a response. In Feb, after getting the termination notice, I called Don Callahan’s office and spoke to his secretary. I told her I felt my layoff was due to retaliation and was told they would get back to me. A few days later I received a fedex from a Citi attorney saying any further communication with Citi must go through him.

For the next two years, the retaliation continued, preventing me from obtaining employment in my area of expertise.

  1. Did the district court or the agency incorrectly decide the facts of your case?

The district court should have granted the motion for summary judgment, or at least allowed the case to proceed.

 

  1. Are there any other reasons why the district court’s judgment or the agency’s decision was wrong?

I

The Honorable Magistrate Judge Joseph F. Saporito, Jr.  was mistaken in document 33, Report and Recommendation, when he stated: “Thus, we find that his cause of action accrued as of the date of discharge on April 21, 2013.”

The cause of action continued through 2014 and 2015 when Citigroup’s continued retaliation prevented Plaintiff from obtaining employment in other organizations, other subsidiaries within Citigroup and accrued on 10/15/2015, when Plaintiff was prevented from obtaining employment in the One-Main  subsidiary of Citigroup.

The employee policy and accompanying arbitration agreements ended on April 21, 2013 when Citigroup terminated Jaludi’s employment.

As such, there was no agreement to arbitrate in effect post employment on May, September and November of 2014 when Citigroup’s continued retaliation prevented Plaintiff from obtaining employment in other firms or during 2015 when Plaintiff was prevented from obtaining employment within Citigroup (items 46 – 49 of complaint).

In Davidson v. Becker, 256 F. Supp. 2d 377 (D. Md. 2003), the court ruled that arbitration agreements terminated once employment ended:

“There can be no doubt that up until her termination on February 4, 2000, Plaintiff was working pursuant to an employment contract and that one of the clauses in said contract was for binding arbitration. In her Court filings, she does not appear to directly contest that fact. But when Plaintiff was terminated (and Defendant does not dispute that she was terminated), the legal life of that prior agreement had come to an end.

In sum, Plaintiff is bound by the arbitration clause contained in her employment agreement. She was bound by that agreement until her termination. After her termination, the record does not reflect that she assented to any new arbitration agreement. As such, she only agreed to arbitrate claims relating to controversies arising before and on February 4, 2000.

Plaintiff contracted to arbitrate employment-related disputes while she was under contract with MADA. After her termination, she was no longer under any such binding agreement. As such, she cannot be compelled to arbitrate claims arising after her termination.”

For this reason, both SOX and RICO claims belong in court rather than arbitration.

 

II

The SOX act was passed as a direct result of Citigroup’s actions in the Worldcom and Enron disasters. Citigroup’s continued miss-steps in the mortgage crisis, causing the near failure of the global economy as well as Citigroup itself, were the impetus for the creation of the Dodd-Frank (Wall Street Reform) act and its amendment to SOX barring pre-dispute arbitration agreements for SOX claims.

As a large federal financial institute, Citigroup is legally required to be fully compliant with the SOX and Dodd-Frank acts. Section N, page 124 Stat. 1746  of the Dodd-Frank act includes the following for commodities traders (the ICG division named in the complaint, a subsidiary of Citigroup, is a commodity trader), (Part II, SEC. 748. COMMODITY WHISTLEBLOWER INCENTIVES AND PROTECTION.)

(n) Nonenforceability of Certain Provisions Waiving Rights and Remedies or Requiring Arbitration of Disputes.–

“(1) Waiver of rights and remedies.–The rights and remedies provided for in this section may not be waived by any agreement, policy form, or condition of employment including by a predispute arbitration agreement.

“(2) Predispute arbitration agreements.–No predispute arbitration agreement shall be valid or enforceable, if the agreement requires arbitration of a dispute arising under this section.”.

Section E, Page 124 STAT. 1848 (Title IX, subtitle B, section 921 Subtitle B. Increasing Regulatory Enforcement and Remedies) amends SOX to eliminate pre-dispute arbitration clauses:

Section 1514A of title 18, United States Code, is amended by adding at the end the following:

(e) Nonenforceability of Certain Provisions Waiving Rights and Remedies or Requiring Arbitration of Disputes.–

“(1) Waiver of rights and remedies.–The rights and remedies provided for in this section may not be waived by any agreement, policy form, or condition of employment, including by a predispute arbitration agreement.

“(2) Predispute arbitration agreements.–No predispute arbitration agreement shall be valid or enforceable, if the agreement requires arbitration of a dispute arising under this section.”.

As stated, as of the enforcement date of the law, it is very clear: “No predispute arbitration agreement shall be valid or enforceable, if the agreement requires arbitration of a dispute arising under this section.”

Citigroup had to exclude SOX claims from all arbitration agreements in order to be complaint with the law. Once Citigroup removed “SOX” from the arbitration agreement in the 2011 employee policy handbook, in order to comply with the law, it forfeited the ability to force arbitration for any claims after that date. It was able to claim the law was not retroactive for any claims which occurred prior to that date, as the 2009 arbitration agreement was still in effect, however, trying to force arbitration by claiming the 2011 agreement compliments the 2009 agreement renders them both invalid and un-enforceable for any claims after an employee accepted the 2011 agreement, since it was being introduced after the law was in effect.

Here, Citigroup and counsel appear to be saying, “Yes, we removed SOX claims from the arbitration agreement as required by law and to please lawmakers, regulators and employees, but we had our fingers crossed. We fooled you! We didn’t really mean to exclude SOX from arbitration.”

While the 2009 employee handbook and arbitration agreement were in effect, Citigroup could have claimed exception to the Dodd-Frank amendment as it was not retroactive. However, once Citigroup introduced the 2011 employee handbook with a revised arbitration agreement, the agreement had to be compliant with the law in regards to arbitration as a commodity trader and as a large financial institute, of SOX claims, not only by the removal of “SOX” from the agreement, but also by any other wording, inference or ambiguity that would make it in conflict with the law.

The 2011 arbitration agreement must be rendered invalid and unenforceable if the Defendant’s argument stands, since it is an attempt to evade the law through legalese, vague and miss-leading wording.

III

As Judge Saporito pointed out in the Report and Recommendation to the court with the recommendation to deny moving the SOX claim to arbitration:

“agreement to arbitrate must be “clear and unmistakable” and cannot arise “by implication.” Emmaus Mun. Auth. v. Eltz, 204 A.2d 926, 927 (Pa.1964). Likewise, the Third Circuit has held that “[b]efore a party to a lawsuit can be ordered to arbitrate . . . there should be an express, unequivocal agreement to that effect.”

In Dec 2010, when Plaintiff signed the 2011 arbitration agreement, he never intended to surrender his rights to bring a SOX claim to civil court in favor of arbitration. At the time, it was well known that the Wall Street Reform Act (Dodd-Frank) barred pre-dispute arbitration agreements of SOX claims. As such, this was confirmed by the removal of “SOX” from the 2011 arbitration agreement.

Courts have held that language of a contract is ambiguous when the language is capable of more than one reasonable interpretation. Without clarification, any reasonable person would interpret the statement in the employee handbook stating it supersedes all previous editions to apply to everything contained within, including items in the appendix.

 

IV

Judge Saporito pointed out in the Report and Recommendation to the court:

The thrust of Jaludi’s argument is that the 2011 Policy supersedes the 2009 Policy. (Doc. 19 at 1)…The provision he cites in his written submission is on page 4 of the 2011 Handbook which reads as follows:

This Handbook supersedes any Employee Handbooks or Human Resources policies, practices or procedures that may have applied to you and that are inconsistent with and prior to this Handbook’s distribution.

(Id. at 72). Nevertheless, the 2011 Handbook further provides that it does not supersede Citigroup’s Code of Conduct or any applicable law.

Citigroup’s Code of Conduct is a separate document and not contained within the Employee Handbook. The paragraph immediately following the above, on Page 4, makes this statement:

Arbitration

This Handbook contains a policy that requires you to submit employment-related disputes to binding arbitration (see Appendix A). Please read it carefully.

 

This statement explains that the arbitration agreement is a human resources policy contained within the employee handbook.

Defendant’s argument that arbitration policy is not part of the employment handbook and therefore not subject to the language stating it supersedes previous policies is also counter to previous arguments made by Citigroup.

In Padro v Citibank, NA,

In support of its motion, Defendant submitted several versions of Defendant’s Employee Handbook, receipt of each of which is acknowledged by print or electronic signature by Plaintiff. The first is a copy of Citigroup’s U.S. Consumer Group[2] 2004 Employee Handbook (“2004 Handbook”), which contains an “Employment Arbitration Policy,”

Defendant also submitted as evidence three subsequent versions of its Employee Handbook. The U.S. Consumer Group 2006 Employee Handbook (“2006 Handbook”) contains nearly identical language to the 2004 Handbook and similarly alerts employees to the arbitration policy

In 2009, Defendant implemented an updated U.S. Employee Handbook (“2009 Handbook”), which contains an Employment Arbitration Policy nearly identical to those in the 2004 Handbook and 2006 Handbook.

In 2011, Defendant implemented another updated U.S. Employee Handbook (“2011 Handbook”). The 2011 Handbook contains an Employment Arbitration Policy that is again nearly identical to those in the 2004, 2006, and 2009 Handbooks

Defendant asserts that the 2011 Handbook was the operative employee handbook at the time of Plaintiff’s termination on February 5, 2013.

There is no dispute of fact regarding the parties’ entry into an arbitration agreement. Plaintiff agreed to Defendant’s Employee Arbitration Policy in five separate documents in 2004, 2006, 2009, and most recently, 2011. (See Lauri Decl., Exs. A, C, E, G, I.) Defendant contends, and Plaintiff does not dispute, that the 2011 Handbook was the operative handbook at the time of Plaintiffs termination, and Plaintiff clearly bound herself to the policies therein when she electronically signed the “2011 U.S. Employee Handbook Acknowledgment Receipt” on March 16, 2011. (See Lauri Decl., Ex. I.) As explained above, supra Part I.B, Plaintiff acknowledged receipt of the 2011 Handbook and the Employment Arbitration Policy, and undertook an obligation to review the documents carefully.

Defendant asserts that the 2011 Handbook was the operative employee handbook at the time of Plaintiff’s termination on February 5, 2013

In Raniere v Citigroup, No 11 cv-2448  which states:

“Defendants argue that Bodden is bound by the language of the 2011 Arbitration Policy because she acknowledged receipt of the 2011 Employee Handbook on January 14, 2011, including that it required her to submit employment-related disputes to binding arbitration.”

“Defendants contend that Raniere is also bound by the 2011 Employee Handbook Arbitration Policy because she acknowledged receipt of the 2009 Employee Handbook (Byers Decl. Exs. 4, 5 (Dkt. No. 28)), which included the following provision:

Citi reserves the right to revise, amend, modify, or discontinue the Policy at any time in its sole discretion with 30 days’ written notice.”

In Luciana De Oliveira v Citicorp NA and Citigroup, case # 1:12 cv-00251, Defendants motion to compel arbitration, Document 14, included exhibit testimony by expert witness stating:

I Robin Kraemer, declare as follows:

I am currently employed by Citigroup Management Corp. as a Human Resources Generalist Senior Manager…

…On December 27, 2010, De Oliveira executed an acknowledgement of CNA’s 2011 Employee Handbook (“Acknowledgement”), affirming that she had received and was obligated to read CNA’s Employment Arbitration Policy (“Arbitration Policy”) contained in the 2011 Employee Handbook.

In HARRY DENNIS ADAMS, KELLY HARRISON, JAMES E. WHITFIELD, JR. and KATHERINE KRAEMER, on behalf of themselves and all others similarly situated, v. CITICORP CREDIT SERVICES, INC., Case No. 1:12-cv-00286, defendant stated:

“CCSI maintains an Employment Arbitration Policy (“Arbitration Policy”), the most recent version of which is included in the January 2011 U.S. Employee Handbook. Gross Decl. ¶ 7, Ex. 1. Under this Policy, each employee (1) agreed to submit to binding arbitration any and all claims related to his or her employment at CCSI, and (2) waived any right to participate in a class or collective action based on such claims.”

 “The 2009 Arbitration Policy advised Plaintiffs of CCSI’s right to amend the Arbitration Policy and that continuation of employment would be deemed acceptance of any such amendment, including the class action waiver contained in the 2011 Employee Handbook.”

In each case the Defendant, a subsidiary of Citigroup, does not claim that each agreement complimented the prior one, only that the 2011 handbook (all use the same handbook) with the accompanying arbitration policy is the operative handbook.

Citigroup likes to interpret the wording in the employee handbook to suit its needs rather than how it is interpreted by employees and auditors.

In reply to Plaintiff’s request that Citigroup produce all arbitration agreements in effect if they all complement each other, Defendant gave this reply as subnote 2, continued at the bottom of page 4 in document 39, defendant’s “MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFF’S OBJECTION TO REPORT AND RECOMMENDATION”:

Separately, to the extent Plaintiff requests production of “every arbitration agreement which Jaludi signed,” Plaintiff’s Objection at 2-3, they have already been provided, in full, as exhibits to Defendant’s Motion. See Dkt. 16-2.

 

Defendant statement is miss leading and a falsehood. Defendant only provided the 2009 and 2011 agreements. The 2004 and 2006 employee handbooks each contain arbitration agreements with the same type of language regarding how they apply prospectively and supersede each other, yet Defendant has failed to produce them or to even mention they exist. From 1985 to 2013, there must be over a dozen versions of the arbitration policy that were signed by the plaintiff, and if the Defendant’s argument is to be believed, all still in effect. Contrary to what the Defendant states, no agreement prior to the final one has been produced, except for the 2009 version, the one beneficial to the Defendant.

 

V

In document 39, defendant’s statement in “MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFF’S OBJECTION TO REPORT AND RECOMMENDATION”:

The Report also correctly notes and Plaintiff’s Objection does not dispute(4) that the 2011 Arbitration Agreement does not supersede the 2009 Arbitration Agreement and, as such, Plaintiff’s claims could be subject to arbitration under either or both.

4 – Plaintiff’s Objection contends only that Defendant’s argument on this point “have brought doubt into the clearness of the arbitration agreements,” rendering them “illusory.”

Plaintiff’s objection to the report states the exact opposite:

In addition, the arbitration agreements appeared to be clear and unmistakable, leading employees to believe each agreement superseded all previous agreements, terminated when employment ended and for 2011, did not apply to SOX claims.

Plaintiff disputed the argument that the 2011 does not supersede the 2009 agreement numerous times:

In “PLANTIFF’S MEMORANDUM IN SUPPORT OF ITS MOTION TO DENY DEFENDANTS MOTION TO COMPEL ARBITRATION AND DISMISS OR STAY PLAINTIFF’S COMPLAINT” (document 19, 3/17/2016) this argument was made:

 

The motion to dismiss correctly mentions the 2009 employee policy handbook includes the following language within the arbitration clause:

…including, without limitation, claims, demands, or actions under…the Sarbanes-Oxley

Act of 2002 …

However, the motion incorrectly states the 2011 employee policy handbook is complimentary to the 2009 handbook. This is incorrect. The 2011 employee policy handbook supersedes the 2009 employee policy handbook, as shown by the following language on page 11 of the 2011 handbook specifically states:

This Handbook supersedes any Employee Handbooks or Human Resources policies,

practices or procedures that may have applied to you and that are inconsistent with and

prior to this Handbook’s distribution.

 

In “PLANTIFF’S REPLY IN SUPPORT OF ITS MOTION TO DENY DEFENDANTS MOTION TO COMPEL ARBITRATION AND DISMISS OR STAY PLAINTIFF’S COMPLAINT AND REQUEST FOR SUMMARY JUDGEMENT” (Document 21, 4/12/16)

Citigroup amended the wording of its employee handbook in 2011 and all policies within in order to comply with the law. There is no language in the handbook stating it is complimentary to previous policies because that would have made it in violation of the Frank-Dodd reform act.

Handbook clearly states it supersedes any previous handbooks and policies. There is language excluding the code of conduct, but no language excluding arbitration policy.

“From time to time, our policies will change …

This handbook supersedes any Employee Handbooks or Human Resources policies, practices or procedures that may have applied to you and that are inconsistent with and prior to this Handbook’s distribution.

 

And again in “Plaintiff’s Objection to court rulings” (Document 35, 7/8/2016):

In addition, the arbitration agreements appeared to be clear and unmistakable, leading employees to believe each agreement superseded all previous agreements, terminated when employment ended and for 2011, did not apply to SOX claims. Citigroup’s arguments have brought doubt into the clearness of the arbitration agreements. Citigroup’s creative interpretation of the employee handbook and encompassing arbitration policy renders them illusory.

Even Magistrate Saporito’s Report and Recommendation (document 33, 6/21/16) acknowledged the Plaintiff’s argument:

(b) Scope of the Agreement

Jaludi maintains that his SOX claim is not within the scope of the 2011 Policy. He does not dispute that the 2009 Policy expressly requires that SOX claims be submitted to arbitration, only that it is superseded by the 2011 Policy.

Defendant’s claim that Plaintiff’s objection does not dispute that the 2011 Arbitration Agreement does  not supersede the 2009 Arbitration Agreement is a falsehood and combined with other falsehoods mention above are an attempt to commit fraud on the court and cause to grant default judgment for the Plaintiff.

 

VI

Cases cited in the memorandum issued by the Honorable District Judge Malachy E. Mannion:

Khazin v. TD Ameritrade Holding Corp., 2014 WL 940703 (D.N.J. Mar. 11, 2014), aff’d on other grounds, 773 F.3d 488 (3d Cir.2014)

This case was brought under a Dodd-Frank cause of action. This was not a SOX complaint and while Dodd-Frank imposed protection from arbitration for SOX claims, it does not offer the same protection to Dodd-Frank claims. Also, Plaintiff did not have a revised arbitration agreement, but only a 2006 agreement, which was still in effect when the cause of action occurred.

Weller v. HSBC Mortgage Servs., Inc., 971 F.Supp.2d 1072 (D.Colo.2013)

Plaintiff entered into an arbitration agreement in 2012, however, the Dodd-Frank act barring arbitration for these claims went into effect in 2013, after the date of the cause of action.

Blackwell v. Bank of America Corp., NO. CIV.A. 7:11-2475-JMC

Cause of action occurred prior to the effective date of the Dodd-Frank amendment to SOX

Henderson v. Masco Framing Corp., 2011 WL 3022535 (D.Nev. July 22, 2011

Cause of action occurred prior to the effective date of the Dodd-Frank amendment to SOX

Richards v. Gibson, 2015 WL 926594 (S.D.Miss. Mar. 4, 2015)

Plaintiff entered into an arbitration agreement in 2012, however, the Dodd-Frank act barring arbitration for these claims went into effect in 2013, after the date of the cause of action.

All of these cases related to claims which occurred prior to the effective date of the anti-arbitration amendments with unrevised arbitration agreements.

This cause of action in the Plaintiff’s case occurred after the effective date of the law barring pre-dispute arbitration agreement, with an arbitration agreement amended to be compliant with that law.

In fact, case law supports the Plaintiff’s stance:

Citigroup settles Whistleblower case for $158 million. U.S. ex rel. Hunt v. Citigroup Inc et al, U.S. District Court, Southern District of New York, No. 11-05473 – This case is very similar to the Plaintiff’s case, but without the political pressure cause by the mortgage crisis. The same arbitration policy was in effect in this case, yet rather than trying to force arbitration Citigroup, the Defendant, chose to settle the case in court.

 

VII

Congress gave federal judges the power under RICO to render judgments that result in restructuring and reorganization of an enterprise. Arbitrators do not have this ability. Plaintiff’s RICO claim calls for the restructuring of Citigroup to allow for the creation of a safe haven where employees can safely raise ethical concerns without fear of retaliation. An arbitrator does not have this authority.

VIII

Citigroup counsel is trying to change the accused party from Citigroup et al., meaning Citigroup, Inc. and company to Citigroup Technology, Inc. The party is correctly listed as Citigroup et al. (Citigroup), to include Citigroup, Inc, subsidiaries and key staff mentioned in the complaint, who work for various subsidiaries within Citigroup, Inc, including Citigroup, Inc. itself.

Defense counsel can try to present their case for why the named company needs to be changed. Until then, without permission from the court or concurrence from the plaintiff, defense counsel cannot arbitrarily change the defendant named in the complaint.

 

  1. What action do you want the Court of Appeals to take in this case?

Option 1

When Plaintiff’s commit fraud upon the court the case is lost.  The same should apply when the Defendant commits fraud upon the court, default judgment should be granted for the Plaintiff.

Option 2

Since this case does not belong in arbitration, as congress had intended, the case should be reopened and the motion for summary judgment granted. The summary judgment was improperly dismissed and should have been granted due to Defendant’s failure to follow court rules, while at the same time asking the court to enforce said rules against the Plaintiff.

Option 3

Reverse order granting motion to compel arbitration and permit the case to proceed.

 

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