Showing posts with label litigation. Show all posts
Showing posts with label litigation. Show all posts

Tuesday, April 20, 2021

We learn more from our failures than our successes


A couple of months ago I was approached by the That One Case podcast to record an episode. This show asks lawyers to share the story of one case that has stood out over their careers. As they pitched it, that case could be a big win that defined my career, a turning point that took my work down an unexpected path, or simply the case of which I am most proud.

Tuesday, April 13, 2021

The top 11 things you need to know about being sued by an (ex) employee


Because of the impending changes to Ohio's workplace discrimination law that take effect in two days, the filing of employment discrimination lawsuits in my state is seeing record numbers.

Do you know what to do when an employee sues your company? 

Here are the top 4 issues you to think about ASAYS (as soon as you're sued).

Wednesday, October 23, 2019

Is this the worst defense ever to a discrimination claim?


Litigation is painful. It takes a lot of time, costs a lot of money, and has lots of variables that you just can’t control. Especially when the client goes off the rails and says something so ludicrous that you might as well just pack it in and cut a check.

As an example, I offer Evans v. Canal Street Brewing. It’s a race discrimination currently pending in federal court in Detroit. According to the Detroit Metro Times, the plaintiff, who is African-American, alleges “a racist internal corporate culture,” including the repeated used of the “N word”, and  management naming its printer the “white guy printer” and  the printer for lower-tier employees the “black guy printer.”

The employer’s defense? The restaurant’s general manager, Dominic Ryan, claims that he did not know Evans was black.

Thursday, April 25, 2019

Supreme Court signs off on death by a thousand cuts


Lingchi was a form of torture and execution used in China from roughly 900 BC until China banned in 1905. It translates variously as the slow process, the lingering death, or slow slicing. It's more commonly known as "death by a thousand cuts," in which the torturer uses a knife to methodically remove portions of the body over an extended period of time, ultimately resulting in death.

Yesterday, in Lamps Plus v. Varela, the Supreme Court held that parties to an arbitration agreement cannot be required to arbitrate their claims as a class action unless they specifically agreed to do so in the arbitration agreement.

Monday, October 1, 2018

5 steps to take when an employee sues your company


I've written a lot over the years about best practices to prevent lawsuits by employees.

The fact remains, though, that no matter how good a company's HR practices are, and no matter how proactive a company is with its legal compliance, a certain percentage of terminations and other employment decisions will turn into lawsuits. It's the simple the cost of doing business.

Tuesday, July 31, 2018

It's not an oxymoron to be pro-civil rights AND represent management


I read a tweet last night that really angered me.

https://twitter.com/CJMcKinney/status/1023805996223922181

Thursday, May 31, 2018

Everything you need to know about shredding documents when faced with litigation: DON’T DO IT


If you are accused of destroying evidence, and the federal judge ruling on the motion starts his opinion by quoting a John Hiatt song called “Shredding the Document,” you are in for a very, very bad litigation day.

This is exactly what happened to GMRI, Inc., the defendant in an age discrimination lawsuit brought by the EEOC in Miami, Florida. GMRI owns Seasons 52 restaurants, and if that name sounds familiar, it’s because it was my 8th nominee for the “Worst Employer of 2018.”

Tuesday, May 22, 2018

SCOTUS decision on class action waivers is not the epic win for employers it may seem to be


Yesterday, in a narrow, 5-4 partisan decision, the Supreme Court issued its most anticipated employment decision of its current term, Epic Sys. Corp. v. Lewis [pdf]. The Court reconciled six years of debate between split federal circuits into a unified standard that permits the waiver of class actions via the compelled individual arbitration of employment disputes.

Tuesday, May 15, 2018

The easiest way to lose an employment lawsuit


Photo by Devin Avery on Unsplash
Yeterday, I was tagged with the following question on LinkedIn:
Interested in your opinion on this.

The “this” in question was an $7.97 million verdict a jury in Fresno, California, entered in favor of a Chipotle manager fired for allegedly stealing $626 in cash from the restaurant’s safe.

Tuesday, September 19, 2017

What it’s like to be sued by your employee


When you litigate, you’re losing.

This is an odd statement for a litigator to make. But it’s true.

Monday, September 26, 2016

Are you sure you want to take that case to trial?


Consider Locigno v. 425 West Bagley, Inc. [pdf], decided last week by an Ohio appellate court.

This case is remarkable. Because of some odd communications between a juror and the court, the concurring opinion gives a unique look behind the curtain of jury deliberations. And it isn’t pretty.

Wednesday, May 25, 2016

How to behave (and not behave) in a deposition


I spent yesterday in a deposition. That fact is not all that unusual for a litigator. What makes yesterday’s exercise stand out is that I was the deponent, not the attorney. I spent my day under oath, answering questions.


As the mind of a blogger works, I thought to myself, “How can I turn this experience into a blog post?” And then I realized that I already had, six years ago, in a post entitled, 10 tips for preparing for your deposition. So join me on this trip back through the archives.

Thursday, April 28, 2016

Let’s not forget about damages when litigating our cases


When employers are sued, they do not put enough thought into damages. The typical response is, “We didn’t discriminate; we aren't liable.” But, the reality is, unless you win a case on summary judgment (sadly, an unlikely result), you need to think about what a case is potentially worth and how much a plaintiff can potentially cover. For starters, it will drive settlement discussions. Moreover, and more importantly, if a case does not settle, you will want to whittle that number down as low as possible to limit the potential exposure at (gasp) trial.

Wednesday, November 18, 2015

The cost to defend a discrimination lawsuit (and can you do anything about it)


Two and a half years ago I asked, How much does it cost to defend an employment lawsuit? My answer:

The reality is that defending a discrimination or other employment lawsuit is expensive. Defending a case through discovery and a ruling on a motion for summary judgment can cost an employer between $75,000 and $125,000.

Oh, how I love to be right.

Wednesday, July 8, 2015

Be conscious of inequities when gauging litigation


Four years ago, in Wal-Mart v. Dukes, the U.S. Supreme Court held that it was inappropriate to certify a nationwide class of 1.5 million female Wal-Mart employees allegedly denied pay and promotions because of a corporate-wide "policy" of sex discrimination. SCOTUS’s Dukes decision ended a decade of litigation over the propriety of the attempted nationwide class action.

More than a year after the Dukes decision, Cheryl Phipps, Bobbi Millner, and Shawn Gibbon launched a similar lawsuit in federal court in Tennessee, but instead seeking a region-wide sex-discrimination class. Wal-Mart alleged that the claims, more than a decade old, were time barred. Yesterday, in Phipps v. Wal-Mart Stores [pdf], the 6th Circuit formally disagreed.

For civil procedure geeks (like myself), the case is a fascinating read on the theory of statutes of limitations and equitable tolling. That analysis, however, is well beyond the scope of what I hope to accomplish with my little slice of the Internet.

Here’s the practical take-away. Employers favor certainty, knowing that if an employee fails to file a lawsuit 90 days after the EEOC issues its right-to-sue letter, for example, the employee waived the right to assert federal discrimination claims. Courts, however, favor equities, and try to avoid inequitable results. Sometimes, these ideals clash. When this happens, employers cannot assume victory, and should brace themselves accordingly.

Monday, June 23, 2014

Is it ethical to check jurors’ social media accounts?


Every jury trial starts with what is called voir dire—a question-and-answer session between the lawyers and the pool of potential jurors. As lawyers, we are trying to deselect those jurors whom we feel would be unfairly biased against our case or our client. It is much more an art than a science, and the more information we can gather about potential jurors, the more educated of a decision we can make that a juror is not the right fit for our case. 

Recently, the American Bar Association made this information gathering a little bit easier. In an ethics opinion (h/t: ABC News), the ABA gave lawyers the green light to view jurors’ and potential jurors’ publicly available Internet information, which, for example, could include their Facebook or Twitter musing. 

The Internet is a treasure trove of information about jurors. You could learn their political leanings, religious background, and all about their jobs and families. In short, you could learn the entire backstory of a “connected” juror.

But, do you want to? Just because this information gathering is ethical does not mean it’s strategically wise. By using the Internet as a basis for questions about a potential juror, you will clue the entire pool of jurors in on the fact that you’ve been trolling online for information about them. They might view your ethical conduct as a creepy invasion of their privacy. Voir dire is as much about you learning about the jury as it is about the jury learning about you. In other words, you don’t want to piss off the jury during voir dire. If you lose credibility before the trial even starts, what chance do you have to win the case?

So, lawyers, my take is that Facebook-ing potential jurors presents more of a risk to damaging your credibility with the jury than any benefit you will receive from learning information to help with the inexact science of voir dire. And, if you choose to research jurors online, keep that choice private, and don’t let the jury know you’ve been trolling them. It’s not worth the risk of the jury punishing you for it from the privacy of their deliberations.

Wednesday, March 12, 2014

Don't Bieber your deposition


Three years ago, I wrote a post entitled, 10 tips for preparing for your deposition, in which I offered some ideas for how to best prepare to give a deposition in case in which you are a witness. The tips includes the common sense (tell the truth), to the more esoteric (beware leading questions).

Today, I’m updating that top-10 list with an 11th tip: Don’t be a Bieber. Earlier this week, TMZ leaked the video of the highlights (or lowlights, depending on your perspective) of the deposition Justin Bieber gave in a case in which a photographer claims Bieber ordered his bodyguard to attack him. This deposition might go down as the worst performance ever given under oath.


It is rare that you will win a case during your deposition. The person asking the questions is not your friend. The inquisitor is looking for opportunities to trip you up, put words in your mouth, and make you look bad. Yet, while you can’t win a case during your deposition, you certainly can lose it. You can make admissions that you don’t need to make, or you can come off looking like Bieber did in his video—like an a-hole.

The video is entertaining, but it’s also instructive. If you are being deposed, don’t play games. Don’t feign fake ignorance. Don’t get smart or act smarmy. Yes, it’s an unpleasant experience to be under oath. Don’t make it worse by giving a Bieber-like performance.

So, thank Biebs. You provided me the perfect instructional tool for me to show my witnesses before they are deposed, so they don’t act like you.

[Hat tip: Eric Meyer and Phil Miles]

Wednesday, February 26, 2014

Why we put plaintiffs to their proof


Because of the relative newness of the issue, it always seems newsworthy when the NLRB issues a social-media decision. World Color (USA) Corp. (NLRB 2/12/14), however, is much ado about nothing, but nevertheless reminds us of the importance of the process of litigation to the outcome of litigation.

John Vollene, a press room operator at World Color and member of his union’s bargaining committee, made several posts on his personal Facebook page critical of his employer. Vollene was Facebook friends with several co-workers, including his shift supervisor, Arvil Bingham. Shortly after Vollene’s posts, World Color’s employees voted to decertify the union. Shortly thereafter, the company reassigned Vollene as part of a restructuring of its pressroom operators. When Vollene asked Bingham why he was being reassigned, Bingham implied that management knew about his Facebook posts.

The NLRB concluded that Vollene had not proven that he had not been reassigned in retaliation for his Facebook posts, which could have constituted protected concerted activity:

However, the record here does not include a printout of Vollene’s posts, and it provides scant evidence regarding their nature. It reveals neither that the posts concerned terms and conditions of employment, nor that the posts were intended for, or in response to, Vollene’s coworkers. The testimony indicates only that Vollene posted unspecified criticisms of the Respondent and unspecified comments about the Union over a period of 5 or 6 months, and that he responded to another person’s initial post. The record does not identify that individual either by name or as a coworker. Based on this limited evidence, we will not infer that Vollene’s posts amounted to protected concerted activity. That Bingham’s statement implied that the Respondent had reacted adversely to critical posts is insufficient to bridge the evidentiary gap here.

Do not read too much into this decision. An employee’s Facebook posts critical of his or her employer can constitute concerted activity protected by section 7 of the NLRA. In this case, however, the NLRB concluded that because there was no evidence presented of the specific posts at-issue, or how Vollene’s co-workers responded to them. Thus, Vollene had not proven his case.

I have little doubt that if Vollene had put on evidence of the specific posts, and his co-workers reaction to them, this case could have turned out differently. This case serves as a good reminder of why we, as employers and their lawyers, put plaintiffs to their proof. A lawsuit is merely a collection of unproven facts. No law has been violated until a plaintiff  proves those facts through evidence. If the plaintiff doesn’t have the evidence to support the alleged facts, the plaintiff loses. That’s what happened here, which illustrates the importance of the litigation process to the outcome of cases.

Wednesday, August 21, 2013

Where’s Waldo? She’s teaching you a lesson on the high cost of sexual harassment


While employed as an electrical line worker for Consumers Energy Company from 2001 through 2005, Theresa Waldo claimed that she suffered the following incidents of sexual harassment, about which she complained to her supervisor, union rep, and HR manager, each of whom allegedly ignored her:

  1. She was repeatedly called derogatory and demeaning names, such as “bitch” and “wench.”
  2. Coworkers threw her purse out of a work truck and into the dirt, telling her that “there were no purses allowed in these trucks.” When she responded by carrying a smaller purse in her pocket, she was called a “dike.”
  3. Her coworkers refused to let her travel to a bathroom, instead telling her that if she “wanted to work a man’s job,” she had “to pee like a man.”
  4. Coworkers locked her in a porta-potty with duct tape.
  5. Coworkers isolated her at work sites by excluding her from lunch trips and forcing her to walk instead of riding in trucks with the male employees.
  6. There were sexually explicit pictures on the work trucks.

Based on the foregoing, a jury awarded Waldo $400,000 in compensatory damages and $7,500,000 in punitive damages on her sexual harassment claim. Applying Title VII’s damage caps, the trial judge reduced those awards to a combined $300,000. In addition to the capped damage award, the judge also awarded Waldo $684,506 in attorney’s fees, which the 6th Circuit affirmed.

Who wins these cases? According to Judge Sutton’s dissenting opinion, it’s the lawyers, not the litigants:

I join all sections of the majority’s opinion save one: its decision to uphold the district court’s award of $684,506 in attorney’s fees—all but $1,000 of the fees requested by Waldo’s attorney without any additional reduction for time or rate, including for all work incurred to lose the first jury trial, all work incurred to lose six of the seven claims (four of them state law claims) and for all work incurred to win $300,000 in the second jury trial. One can be forgiven for thinking that Waldo’s two attorneys, not Waldo, were the true winners. This is good work if you can get it.

Harassment takes a toll. It exactly a high emotional cost on the victim. It exacts a steep legal cost on the company defending a lawsuit that can be salacious and unpopular. Yet, as this case illustrates, the people that often win are the lawyers. It may sound odd for a lawyer to argue against litigation. Yet, as I’ve heard one of my partners espouse more than once, “When you’re litigating you’re losing.” This case is the perfect example. From start to finish, Theresa Waldo spent more than 8 years of her life (from June 2005 until August 2013) litigating. For that time and aggravation, not to mention the on-the-job harassment that she suffered, she was awarded $300,000. Her lawyers, on the other hand, pocketed more than double that amount.

Who really won, and what does this case teach us about the benefit of evaluating the risk of cases and resolving those that have merit.

Monday, August 12, 2013

6th Circuit rejects contract that shortens statute of limitations for wage claims


Twice in the last three years, the 6th Circuit has signed off on contracts between an employer and employee that shortened the time for an employee to bring a discrimination claim (here and here). 

Last week, however, that same court reversed course and refused to recognize a contractual clause that limited an employee’s right to file a wage and hour claim.

In Boaz v. FedEx (6th Cir. 8/6/13) [pdf], the 6th Circuit reviewed the following clause in an employment agreement:

To the extent the law allows an employee to bring legal action against Federal Express Corporation, I agree to bring that complaint within the time prescribed by law or 6 months from the date of the event forming the basis of my lawsuit, whichever expires first.

Boaz sued FedEx in 2009—both for wage and hour violations and violations of the Equal Pay Act—that she alleged occurred between 2004 and 2008. FedEx moved to dismiss the lawsuit, claiming that the six-month limit in her employment agreement barred her claims.

The 6th Circuit disagreed:

An employment agreement “cannot be utilized to deprive employees of their statutory [FLSA] rights.” That is precisely the effect that Boaz’s agreement has here. Thus, as applied to Boaz’s claim under the FLSA, the six-month limitations period in her employment agreement is invalid.…

Congress enacted the Equal Pay Act as an amendment to the FLSA. By then the Supreme Court had already held that employees cannot waive their FLSA claims for unpaid wages and liquidated damages. We therefore presume that, by folding the Equal Pay Act into the FLSA, Congress meant for claims under the Equal Pay Act to be unwaivable as well.

FedEx argued to the 6th Circuit that this holding establishes a split among the statutory limitations periods that employers can contractually limit.

FedEx responds that courts have enforced agreements that shorten an employee’s limitations period for claims arising under statutes other than the FLSA—such as Title VII. And FedEx argues that the discrimination barred by Title VII (i.e., racial discrimination) is just as bad as the discrimination barred by the FLSA, and hence that, if an employee can shorten her Title VII limitations period, she should be able to shorten her FLSA limitations period too. 

The 6th Circuit rejected FedEx’s argument for two reasons. 

     First, unlike claims under the FLSA, employees can waive their claims under Title VII. 

     Secondly, an employer that violates the wage and hour laws gains a competitive advantage that does not exist by violating the FLSA.

Despite this case, I still believe that agreements that lessen statutes of limitations are an important tool to limit risk, especially in a state like Ohio, which has a six-year statute of limitations for discrimination claims (except age). If nothing else, you can limit your risk for discrimination and other employment claims, even if your wage-and-hour risk might carry forward longer.