Last month WPP “whistleblower” Richard Foster submitted evidence in his wrongful termination suit against the company of a previously undisclosed investigation by client Sony that concluded WPP pocketed $350 million in media rebates in China belonging to  clients.   

A week later WPP demanded that the New York State Supreme Court judge hearing the case seal all documents related to the Sony probe, alleging that Foster likely acquired documents improperly.  

But according to Foster, that’s not the case. In a court filing yesterday opposing WPP’s demand to seal, Foster said that Sony brought the findings to Foster’s legal team earlier this year, without any prior solicitation or request for confidentiality.  

According to the documents Sony made initial contact with the Foster’s law firm (Brewer Attorney’s & Counselors) in February. In May Sony requested a meeting which took place remotely when company representatives briefed Foster’s legal team on the rebate investigation that Sony undertook. 

“Sony, a sophisticated client, examined the same Rebate and Purchase Risk practices Plaintiff reported, reached the same conclusions about them, and presented those findings to WPP’s two most senior lawyer,” Foster’s motion states.  

“That evidence bears on three contested elements of this case. It supports the objective reasonableness of Plaintiff’s belief, because a disinterested third party with access to the underlying data interpreted the practices the same way Foster did. It bears on Defendants’ knowledge, because the findings went to the officers Defendants say exercised “robust formal internal controls.” And it bears on causation and pretext, because the executives Sony identified are the same executives Plaintiff alleges removed him.” 

Foster also argued that WPP’s demand to seal discussions he had with company attorney Nicola McCormick should be denied. “Defendants presume that because Nicola McCormick is a lawyer, her communications with Plaintiff are privileged. That is not the law,” per the filing.  

“Defendants identify no communication in which she rendered legal advice and submit no affidavit from her. Plaintiff approached her as a business executive, and she answered in that capacity.” 

Foster also argued separately that WPP’s motion for sanctions should be denied, submitting that no orders were violated, that discussions with McCormick were not privileged and that the Sony probe materials were obtained properly, among other reasons.  

In addition to the filings, Brewer attorney William A. Brewer III, issued a comment: "Mr. Foster alleges that on multiple occasions, he reported through appropriate channels what he reasonably believed were systemic problems in WPP's trading practices, Mr. Foster named names and provided specific, detailed reports of undisclosed profiteering by Defendants in the form of rebates. He believes those reports led to retaliation against him by his former employer — and ultimately resulted in his termination.”