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Ex-WilmerHale Temp Says White House Atty Lied For Toyota

Law360 (February 18, 2021, 4:53 PM EST) -- A former WilmerHale attorney who now works at the White House has been subpoenaed after a former temp accused him of lying under oath to help Toyota cover up corrupt practices in Thailand, including hiding defects in some of its car models. 

Michael Posada was subpoenaed Tuesday and is one of several former WilmerHale lawyers at the White House who have been called to testify in Florida state court in the case brought by Andrew Delaney, a former Big Law attorney who worked for a staffing agency under WilmerHale's direction on an internal investigation for Toyota. 

As part of the alleged cover-up, Delaney claims, Posada falsely told a judge during a sealed hearing in December that he did not know about allegations Toyota engaged in corruption in Thailand — which Delaney says include hiding serious defects — even though Posada oversaw a document review allegedly triggered by Toyota's own concerns about Foreign Corrupt Practices Act liability.

Posada was the sole witness for Toyota at the hearing where Florida Circuit Judge George B. Turner decided to seal much of Delaney's whistleblower lawsuit against the automaker, Delaney's attorney said, after Toyota argued it contained protected information.

"Toyota conspired with its lawyers at WilmerHale to hide bribery, tax evasion, money laundering and fraud from U.S. authorities — meaning the Justice Department, the IRS, the SEC — and also from its shareholders," Delaney's attorney Christopher Beres told Law360. "Posada lied. I know, clearly, through my cross-examination of him that he did lie."

Posada did not immediately respond to messages left on his voicemail Thursday. The White House declined to comment on the allegations. A Toyota representative did not immediately respond to a request for comment.

A WilmerHale spokesperson said the firm "will not comment on the hearing or anyone's characterizations of the testimony" out of respect for the court's sealing order.

"Michael Posada is an excellent lawyer and a person of high character and integrity," said Frank E. James, a media strategist at the firm. "The firm fully supports Michael and his work on the matter." Posada left the firm to join the Biden campaign "on his own initiative" before becoming White House associate counsel, he added.

Toyota has not publicly disclosed an internal investigation into potential FCPA violations, and U.S. authorities have not filed charges. Beres noted the company was previously slapped with a record $1.2 billion fine by the U.S. Department of Justice in 2014 for hiding defects from customers, including "sticky" accelerator pedals, and also recalled 1 million Prius cars over a faulty-wiring fire hazard in 2018.

In a December filing seeking to unseal his whistleblower suit, Delaney cited the Prius recall and linked his allegation of a cover-up, at least in part, to internal Toyota documents he read for the project.

Beres noted the claims are also grounded in Delaney's decades of experience working in Thailand, his relationships with people who have worked with Toyota in that country, and an alleged public knowledge of the company's corruption among the Thai people.

"I reviewed and translated non-privileged documents which involved serious safety issues involving the Prius and other Toyota model automobiles manufactured in Thailand for export in part to the United States of America, including the state of Florida," Delaney swore in the now-sealed affidavit with a motion obtained by Law360. "Toyota has a history of covering up deadly defects in automobiles. This included a fire hazard in C-HR hybrids such as the Prius."

But when Posada was asked under cross-examination during the December hearing whether he knew about press reports and government investigations into "Toyota's corrupt practices," he repeatedly responded, "I do not know," according to a petition filed by Delaney's attorney in Florida's Fifth District Court of Appeal.

"What do you consider corrupt practices?" Posada asked.

"Judicial bribery, for example?" Beres replied, next asking about tax evasion and fraud.

"I do not know," Posada responded each time.

Toyota's attorney, Vincent A. Citro of Horwitz Citro PA, interjected that "the witness has established he's unaware of what's going on in Thailand vis-a-vis Toyota."

In the petition, Delaney's attorney branded Posada's testimony as "lies and hearsay" regarding his professed ignorance of the corruption allegations and his claims that large swaths of the lawsuit, including supposed quotations of law and internet links, were privileged.

Posada is one of four former WilmerHale lawyers working in the Office of the White House Counsel to be subpoenaed in an effort to unseal court documents in Delaney's lawsuit, which names Toyota and its president, Akio Toyoda, as defendants.

The others facing subpoenas are associate counsels Maury Riggan and Danielle Conley, as well as deputy counsel to the president and national security council legal adviser Jonathan Cedarbaum. The WilmerHale spokesperson said that "with the exception of Michael Posada, the former WilmerHale lawyers you mentioned had no involvement whatsoever" in Toyota's internal investigation.

Others being subpoenaed are White House Counsel Dana Remus, who is being called for whatever knowledge she may have of WilmerHale's work for Toyota, and Toyota Motor North America CEO Tetsuo Ogawa and general counsel Christopher E. J. Yang. Court filings did not detail allegations specific to any White House attorney besides Posada.

The subpoenas call for Posada and the others to appear in person or via video link next week for a hearing on a motion to vacate the court's sealing order.

WilmerHale, Toyota and Hire Counsel, the staffing agency that employed Delaney, have battled for nearly a year to gag Delaney and keep his allegations secret.

Delaney first anonymously filed his "John Doe" suit against Toyota in Florida state court in April 2020, claiming wrongful termination amid the outbreak of COVID-19 in New York City and alleging the car manufacturer had defrauded investors to the tune of a half-billion dollars by hiding its wrongdoing.

Days after Delaney filed his Florida lawsuit, Toyota had the entire complaint provisionally sealed claiming it contained confidential, privileged information. Hire Counsel, or HC2, then immediately outed Delaney as the John Doe in Florida by way of a Manhattan federal suit that accused him of stealing confidential information and extorting their unnamed "law firm client" and their "corporate client."

Upon learning of the lawsuit, Delaney revealed the entities in question were WilmerHale and Toyota.

U.S. District Judge Lewis J. Liman brushed off the claims of extortion in that case, calling them "overstated" and a demand letter Delaney sent to Toyota's president "routine."

After Judge Liman dismissed Delaney's counterclaims, the former temp filed a motion to dismiss the lawsuit claiming HC2 knowingly misled the court in order to "cook up" federal jurisdiction, and later followed up with a request for sanctions. The judge has dubbed the dismissal motion, which is pending, "serious."

--Editing by Philip Shea.

Updated: This story has been updated with comment from WilmerHale.

For a reprint of this article, please contact reprints@law360.com.

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Case Information

Case Title

HC2, Inc. v. Delaney


Case Number

1:20-cv-03178

Court

New York Southern

Nature of Suit

Contract: Other

Judge

Lewis J. Liman

Date Filed

April 22, 2020

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