Law Firm Deals in Whistleblower Suits

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Michael J. Fortunato

October 5, 2008

Reprinted from the October 5th, 2008 edition of the Daily Local News of West Chester, PA. Story by Daily Local News Staff Writer Gretchen Metz.

Employment lawyer Michael J. Fortunato recently won a $1.8 million award, plus attorneys’ fees, for his plaintiff client, a Coatesville man, and a month earlier secured a defense verdict for a separate corporate defendant.

These two unrelated jury trials were among the first of their kind, both prosecuting and defending Sarbanes-Oxley whistleblower cases.

Fortunato, chairman of the employment law group of Rubin, Fortunato & Harbison headquartered in Paoli, said the law firm is predominately a defense firm, defending companies against whistleblowers.

On occasion, the firm does represent the whistleblowers.

“Our job as lawyers is not on one side or the other, instead it is to pursue justice,” the 43-year-old lawyer from Bethel, Delaware County, said Friday.

The most recent victory came in mid-September, in Feliciano v. Parexel International when a jury in the U.S. District Court’s Eastern District of Pennsylvania awarded $1.8 million in punitive damages for wrongful termination, plus nearly $100,000 in compensatory damages, plus attorneys’ fees, to Fortunato’s client.

The client, Oswaldo Feliciano of Coatesville, was a computer systems engineer who was fired after reporting fraud at his company.

In the six-day trial, Fortunato argued to the jury that Feliciano was wrongfully terminated in violation of the whistleblower protections of Sarbanes-Oxley.

The jury agreed.

U.S. District Court Judge J. Curtis Joyner, formerly a judge in the Chester County Court of Common Pleas, presided over the case.

Less than two months earlier, in Blagrave v. Nutrition Management Services Co., again in the Eastern District of Pennsylvania, Fortunato defended Nutrition Management, an East Pikeland food service company, against a whistleblower claim filed by Richard Blagrave, a former executive.

At that trial, which lasted five days, Fortunato presented evidence that the company had acted properly and that Blagrave had wrongly claimed to be a whistleblower. The jury agreed, rendering a verdict for the defense.

U.S. District Court Chief Judge Harvey Bartle III presided over the case.

Sarbanes-Oxley, enacted in 2002 in the wake of scandals at Enron, WorldCom and other companies, sets standards for internal controls and responsibility, and includes a provision that protects whistleblowers from retaliation.

Cases such as these don’t get done overnight.

It took three years from the time the lawsuit was filed for the Nutrition Management case to come to trial and four years for the Feliciano case to come to trial, Fortunato said.

The law firm was founded in 1979 by Gregory Rubin.

Fortunato was the fifth lawyer in the practice when he joined the firm in 1993. Today, the firm has 35 lawyers, all in employment law but split into three practice groups.

There is Fortunato’s employment litigation group that defends employers against claims of age, race or sex discrimination; the trade secret group represents employers who need protection from employees or steal trade secrets or customers and the group that represents companies that hire workers from the competition.

On the defense side, the firm has represented clients in all 50 states, Fortunato said. On the plaintiff side, its clients come from the Greater Philadelphia area.

Fortunato calls the firm the “best kept secret in Chester County.” Judges in Chester County may not recognize the name, but judges in Dallas probably will, he said.

“Our practice is at the top of our profession,” Fortunato said. “It is a group of talented people who know the law and are terrific lawyers.”

Fortunato believes the growth of the firm stems not only from the growth of business in the region, but because of the personal nature of the practice.

Outside domestic law, which deals with such personal issues as divorce and child custody, employment law is a close second. On one side, Fortunato explains, companies seek counsel on human capital and confidential information, on the other, employees need protection. When it comes to someone’s job, the matter is “very personal,” Fortunato said.

Fortunato received his undergraduate and law degrees from The Catholic University of America in Washington, D.C. He came to the firm from Morgan, Lewis & Bockius in Philadelphia.

He has no regrets about leaving Center City.

“Fifteen years here has afforded me the opportunity to practice with some really great lawyers with great commitment in a beautiful setting,” Fortunato said. “It’s big city law and I park my car under a tree.”