William Cafaro by cjleclaire
Employment Law,Medical Malpractice,Personal Injury Lawyers
May 17, 2016 | 49299 views | 0 0 comments | 338 338 recommendations | email to a friend | print | permalink

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Bikini Baristas – Constitutional Law and Female Anatomy Over Coffee
by cjleclaire
Jul 10, 2019 | 3796 views | 0 0 comments | 408 408 recommendations | email to a friend | print | permalink

The City of Everett, Washington, got very upset with the so called “Bikini Baristas”, and passed local laws which criminalized the clothing they wear as “lewd conduct”, and enacted a dress code for “Quick-Service Facilities,” which was clearly designed to apply to the drive through coffee-stands.  In fairness to the City, the “bikinis’ were really only pasties and g-strings, instances of clearly lewd conduct, as well as customer-barista physical contact, had been documented, and one sheriff’s deputy had even been convicted of helping an owner evade the undercover officers in exchange for sex acts. Although the city police were clearly able to make arrests for the acts that violated the existing public lewdness laws, the city complained that the resources required for undercover investigation of these businesses could be better spent elsewhere and that the new ordinances would make enforcement much easier.

 

Bikini Baristas ,hillbilly hottiesThe Ordinances and the Baristas’ Arguments:  Baristas working at “Hillbilly Hotties” sued the city, challenging the constitutionality of prohibiting “more than one-half of the part of the female breast located below the top of the areola,” “the genitals, anus, bottom one-half of the anal cleft, or any portion of the areola or nipple of the female breast” as well as the dress code provision requiring the covering of “the upper and lower body (breast/pectorals, stomach, back below the shoulder blades, buttocks, top three inches of the legs below the buttocks, pubic area and genitals).”They claimed portions of these ordinances were unconstitutionally vague. In their complaint, the Baristas pointed out that the length of a common woman’s shirt is often short enough that stretching or bending would reveal part of her back or stomach, violating the dress code, Complaint Doc. 1 ¶4. They also argued that in order to enforce the law, police would have to require suspects to expose their entire beasts in order to measure the top of the areola to determine whether “more than one-half of the part of the female breast located below the top of the areola” is covered. Women with larger areola or breasts are subject to different restrictions than women with smaller areola or breasts and accurate determination would be impossible without such exposure. Id. at  ¶¶31-3.

The Baristas Win the First Round:

TheBikini Baristas Win the First Round: The District Court judge1 found that the ordinances were probably not valid because they were constitutionally vague, especially because the term “bottom one half of the anal cleft” was not well-defined or reasonably understandable, and that the ordinances failed to provide clear guidance and presented risks of arbitrary enforcement. The District Judge reasoned that their choice of clothing was “communicative”, and conveyed messages of particularized values, beliefs, ideas, and opinions; namely, body confidence and freedom of choice, and that these messages are understood by customers. The City argued that the “message”, if any, was not sufficient to qualify for free speech protection, and was understood only as a sexual image.   The District Court ruled that the constitutional challenges to the ordinances should be analyzed according to the “intermediate scrutiny” standard2. A law satisfies intermediate scrutiny “if it is designed to serve a substantial government interest, is narrowly tailored to serve that interest, and does not unreasonably limit alternative avenues of communication.” It was clear that the ordinance was designed to serve a substantial government interest, which was to decrease crime and public sexual conduct, but the District Judge found that the City failed to establish a sufficient causal connection between the outfits worn by the Baristas and the crime and other secondary effects. It is also a basic principle of constitutional law that no government should burden substantially more speech than is necessary to further the government’s legitimate interests. The District Judge found that the ordinances went far beyond prohibiting pasties and g-strings, and required employees of all “Quick Service Facilities” to wear substantially more clothing than all other city residents.  Feeling the Baristas would ultimately win the case, the District Judge awarded them a preliminary injunction prohibit enforcement of the ordinances while the case went forward. The City Appealed…..and

The Baristas Lose on Appeal

The Baristas lose on appealThe appeals court3 viewed the case much differently, reasoning was as follows. First, since the terms “anal” and “cleft” are easily found in the dictionary, the public would not be left to guess about the meaning of the term, which is reasonably ascertainable to a person of ordinary intelligence. The second part of the vagueness test concerns whether the criminal “lewd conduct” provisions were amenable to unchecked law enforcement discretion. The appellate court recognized that some degree of law enforcement subjectivity might be involved in close cases, but the mere fact that there will be close cases does not make a law unconstitutionally vague. Where it is a criminal law, the defendant charged with committing the crime will always be entitled to proof beyond a reasonable doubt, which is sufficient protection in those close cases. Makes a law vague is not that it might be hard to determine whether the incriminating fact it establishes has been proved, but rather the indeterminacy of precisely what that fact is. A good example of a vague statute is a ban on the assembly of three or more persons on city sidewalks if they conduct themselves in a manner annoying to passers-by. Criminalizing conduct that is annoying is constitutionally vague, because what is annoying to one person may not be to another.

The appeals court did not feel that the choice to wear pasties and g-strings was sufficiently “expressive” to qualify for First Amendment protection. The First Amendment, by its terms, only protects speech, but it is clear that First Amendment protection extends to “expressive conduct.” Conduct that has sufficient elements of communication is protected, but conduct does not qualify as “speech” every time the actor intends to express an idea. Expressive conduct is characterized by two requirements: (1) an intent to convey a particularized message and (2) a great likelihood that the message would be understood by those who viewed it, i.e. students who wore black armbands to protest the Vietnam War engaged in expressive conduct closely akin to speech. The Barista’s claim failed because even if they intended to convey messages of female empowerment and confidence by choosing to wear pasties and g-strings,  wearing those items was not likely to be interpreted that way by those viewing them, particularly in a commercial setting where they are very close to the customers and trying to get large tips. The appeals court ruled that because the city’s dress code does not restrain any expressive conduct entitled to First Amendment protection, the “intermediate scrutiny” test used by the District Court did not apply; the City was only required to show that the ordinance promotes a substantial government interest that would be achieved less effectively absent the regulation. This is a very low burden which the city easily met. The appellate court made is clear that these ordinances are constitutional and valid.

P.S.  Nude and Semi-nude Dancing

It should be noted that nude and semi-nude dancing has been left to be expressive conduct entitled to at least some First Amendment protection, but the Baristas did not claim that they were covered by this. The City of Everett allows nude dancing, but it is subject to the adult entertainment licensing and zoning restrictions, which the owners of the Bikini Barista establishments chose not to comply with.

[1] U.S. District Court for the Western District of Washington, Edge v. City of Everett, Case No. C17-1361-MJP, District Judge Marsha J. Pechman.

[2] Depending on the nature of the speech, different standards are used to determine the validity of the government interest in restricting the speech and the extent to which the speech may be prohibited or limited. These analyses can become complex and go beyond the scope of a blog post like this.

[3] U.S. Court of Appeals for the Ninth Circuit, Edge v. City of Everett, 2019 U.S. App. LEXIS 19930.

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Race Discrimination Lawsuit Filed Against Brooklyn-Based Real Estate Law Firm, Wenig Saltiel LLP, Its Partners And Of Counsel
by cjleclaire
Apr 12, 2019 | 9724 views | 0 0 comments | 698 698 recommendations | email to a friend | print | permalink

Author: Louis M. Leon, Associate Attorney

Race Discrimination Lawsuit Filed Against Brooklyn-Based Real Estate Law FirmOn April 5, 2019, the Law Offices of William Cafaro filed a lawsuit in the Eastern District of New York in Brooklyn against Wenig Saltiel LLP, Ira Greene, Jeffrey L. Saltiel, and Meryl L. Wenig (a real estate law firm, its partners, and Of Counsel) alleging that they subjected Plaintiff (an African American female) to a despicable hostile work environment on the basis of her race; retaliated against her for opposing discriminatory practices; and terminated her employment because of her race and/or in retaliation for engaging in protected activity.  The case is known as Shonda Fernandez v. Wenig Saltiel LLP, Ira Greene, Jeffrey L. Saltiel, and Meryl L. Wenig.  Case No. 19-cv-01979 (ENV)(RML).  Click here for a copy of the filed complaint

The complaint thoroughly outlines Defendants’ alleged egregious and inexcusable conduct, which they purportedly perpetrated and/or condoned, including but not limited to Wenig Saltiel LLP’s Of Counsel regularly (1) watching videos of African Americans being raped, hung from trees, and set on fire, all from his office computer and within earshot of the rest of the staff; (2) declaring the inferiority of racial minorities in the United States of America; and (3) disparaging African Americans in the legal profession, including a well-respected female African American judge in Surrogates Court, Kings County, solely on the basis of their race.  The complaint further outlines Plaintiff’s repeated and desperate attempts to have the Firm address the Of Counsel’s alleged behavior as well as the Firm’s alleged retaliation against her for daring to speak up.  We will provide updates as the case progresses.

If you believe your employer has discriminated or retaliated against you, please contact the Law Offices of William Cafarotoday for a consultation.

Law Offices of William Cafaro

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How Much You Recover for Sexual Abuse by a Priest May Depend on Insurance Coverage Issues
by cjleclaire
Apr 09, 2019 | 6861 views | 0 0 comments | 560 560 recommendations | email to a friend | print | permalink

You can sue a church (or any other institution or business) whether there is insurance coverage or not, so why does this matter? Because some dioceses, like the Roman Catholic Diocese of St. Paul and Minneapolis, have filed bankruptcy over sexual abuse claims, particularly where priests have abused many individual children. Claims against Larry Nassar, the sports doctor who had sexually abused approximately 500 young female athletes while recording many of the acts, singlehandedly caused USA Gymnastics to file for bankruptcy in 2018. In a bankruptcy situation, claims that are covered by insurance can be paid up to the limits of the policy, but those that are not covered either go unpaid or have to share a limited fund with other claimants.

What Determines if the Insurance Will Cover Your Case or Not?

Insurance coverage is complicated, and always depends on the exact language used in the particular insurance policy and the facts of the case. The fundamental problem is that insurance is designed to cover accidents, i.e., unintended events that happened because people were not as careful as they should have been; insurance companies never want to cover intentional criminal acts. Subject to certain state regulatory requirements, insurance companies get to say whatever they want in the policies. Since the advent of all these claims, they have tried to phrase the definition of a covered event (an “occurrence”) so it doesn’t cover any intentional inappropriate sexual acts, i.e., so their obligation to cover the incident is not even triggered. They also write exceptions (which are called “exclusions”) from coverage based upon various intentional criminal acts. Depending on what the policy says, which state’s law applies, and how the event happens, this doesn’t always work out well for the insurance companies.

Not Only Was it Intentional or Accidental, but From Whose Point of View?

What if the Sexual Assault Occurred Over a Period of Years or There are Different Insurance Policies Involved?In RJC Realty1, a woman sued a health spa claiming that a masseur had touched her genital area while giving her a massage. The policy covered “bodily injury” caused by an “occurrence”. “Occurrence” was defined as an accident. There was also an exclusion from coverage for “’bodily injury’ expected or intended from the standpoint of the insured”. The insurance company said that this was not an “occurrence” because it was not an accident; it had to be intentional or it could not have happened, and because of the exclusion, the insurance policy did not cover the claim at all. The woman bringing the claim obviously didn’t accuse the spa owners of touching her; she accused them of being careless in hiring and supervising the masseur. It was also obvious that the spa owners never intended this to happen. New York’s highest court ruled that this was an “accident” and therefore it was also an “occurrence” because it was clearly not expected or intended from the standpoint of the insured. The spa had paid for the coverage and was the “insured”; the masseur was not. For the sexual assault to have happened, it had to be expected and intended by the masseur, but he was not the insured, and he had clearly done something the insured had never authorized or intended. The insurance company therefore had to pay attorneys to defend the spa and had to pay on the claim. Knowing this, in recent years, insurance companies have moved toward writing policies to exclude all claims based on sexual abuse or molestation, without regard to anyone’s point of view or expectation.

Strange Bedfellows

Interestingly, in coverage disputes in these cases, the child bringing the claim will usually join with the church, institution, or business being sued, against the insurance company, because they both want the claim to be defended and paid by the insurance company. The coverage issues will usually be fought out in a separate lawsuit, called a “declaratory judgment” action2, or in lawyer’s parlance, “DJ” for short. The parties to a lawsuit often want a decision on the coverage issues before they go forward in the lawsuit for the underlying claim, particularly before they talk about settlement. There are lawyers who do nothing but these insurance coverage disputes, which are very important to many people and businesses in many different contexts. In large commercial casualty losses, the way a few words in the policy are interpreted can make a difference of many millions of dollars.

How Will This Play Out Under the New NY Law Which Now Allows Lawsuits in Older Cases?

What Determines if the Insurance Will Cover Your Case or Not?Under the new law just passed in New York3, people will now be allowed to sue any institution or organization for any claim of sexual abuse against a minor, no matter when it happened, for a one year period called a “window”. After the explosion of sexual abuse claims against the Catholic Church, insurance companies started writing the policy exclusions much more carefully, but because we will now be dealing with sexual abuse that occurred so many years ago, everyone will have to get the old policies of insurance out and see what they say. These policies were written long before the insurance companies were aware of the magnitude of the losses from this risk, but if the company issued the policy, it will have to live with the way it was written then. Because people will now be able to sue until they are much older, these claims will go back many years. In some cases, it might not even be possible to find the actual policies, because certain insurance companies acquired certain other insurance companies, or because things were not yet computerized or kept in digital format at that time. If it can be determined which insurance company covered the church or other institution, and the policy cannot be found, that will create a whole slew of new issues that the courts will have to decide. However, in the older policies, the exclusions will probably be clumsily written and the insurance companies will likely have to pay both for both the legal defense and the actual settlement of the claims.

What if the Sexual Assault Occurred Over a Period of Years or There are Different Insurance Policies Involved?

This creates another whole slew of different questions, because the courts have to decide, for example, if abuse by the same priest over a period of years was one “occurrence”, one occurrence for the purposes of the policy period, or if each act was a separate “occurrence”. This can be very important because insurance companies have to pay certain amounts “per occurrence” and a certain maximum over the period of the policy. The church may also have bought its insurance coverage from different insurance companies over the period of the abuse, and these companies often fight amongst themselves over who has to pay and how much. The church may also have an “SIR” (self-insured retention) which is actually a very large deductible. This means that the church will have to pay the full amount of that deductible for each “occurrence”4 before the insurance company has to pay anything.  These issues are too complex for the scope of this article, but if you have a case like this, you should choose an attorney who is closely managing the insurance coverage issues, as well as pursuing your claim against the church in court to make sure that you actually get paid after all the smoke clears – Remember that a huge verdict doesn’t mean anything if it can’t be collected.

[1] RJC Realty Holding Corp. v. Republic Franklin Ins. Co., (2004) 2 N.Y. 3d 158.

[2] In New York State court, Civil Practice Law and Rules § 3001, in federal practice, 28 U.S.C. § 2201 and Federal Rules of Civil Procedure Rule 57.

[3] Child Victim’s Act, the civil statute of limitations is extended under CPLR § 214(g).

[4] The leading case in New York on this point is Roman Catholic Diocese of Brooklyn v. National Union Fire Ins. Co. of Pittsburgh, PA., (2013) 969 N.Y.S.2d 808, 21 N.Y.3d 139, and there is an excellent article that discussed this in greater depth in the NY Law Journal, 3/20/19, p. 4 by Altschiler and Kardisch.

Author: New York Employment Lawyers,Law Offices of William Cafaro

 

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You’ve Just Been Terminated. Do You Think it Was it Because of Your Age?
by cjleclaire
Mar 12, 2019 | 9623 views | 0 0 comments | 536 536 recommendations | email to a friend | print | permalink

here May be a Good Change in the Law on the Horizon

Author: Cafaro Verdicts

Older people (and “older” is subjective term), who cannot afford the luxury of retirement, are at a much higher risk of being let go. It’s also exceedingly difficult for them to compete in the labor market once that happens. Whether consciously or subconsciously, some employers tend to think that older workers have less energy and will be less productive, while ignoring the job experience and life experience they bring to the table. Greying hair or a paunch in the midsection can be a kiss of death. After being laid off and out of work for a while, older workers have this additional psychological obstacle to overcome in the interview process. But there are legal protections, so consider fighting back when they let you go instead of obediently signing all your rights away. Retaining an attorney who specializes in this field can often scare up a much more desirable severance than would have been offered otherwise without the need to actually file a lawsuit.

If You Worked in the City of New York – You’re in Luck. In NYC, we have the most progressive anti-discrimination law [1] in the nation, and it covers age. You can win an age discrimination case by proving that your age was a substantial factor (not the only factor, or even the main factor) in the firing decision. This is a tremendous advantage, explained further below.

What does it mean, in real life, when we say you have to prove age was a substantial factor in the decision to fire you? Who decides this? What basis do they use to decide a question like this?

If the case is not settled, the ladies and gentlemen of the jury decide it, after the judge reads them this language [2] (which is part of what we call a jury instruction). The following is part of what the judge would actually read to the jury before they go into deliberations to decide an age discrimination case:

  • The Employee is not required to produce direct evidence that the Employer discriminated against (him, her) on the basis of age. Discrimination is rarely admitted and may be inferred from the existence of other facts.
  • In order for the Employee to recover, you must first find that the Employee has proved that (his,her) age was a motivating factor, that is a substantial reason for the Employer’s decision. If you find that the Employee has failed to prove this, then you should proceed no further and report to the Court. If you find that the Employee has proved by a preponderance of the evidence that age was a motivating factor in the Employer’s decision to discharge (him,her), then the Employer has the burden to prove by a preponderance of the evidence that it would have discharged the Employee even if it had not taken (his, her) age into account. If you find that the Employer has proved that it would have discharged the Employee even if it had not taken (his,her) age into account, then you will find for the Employer. If you find that the Employer has not proved this, then you will find for the Employee.[3]

You’ve Just Been Terminated. Do You Think it was it Because of Your Age?This is called a “mixed motive” standard. It means that if the jury, after hearing all the evidence, decides that your boss had some legitimate reason(s) to fire you, but that your age, (which is not a legitimate reason), was a significant motivating factor in the firing decision, you win, unless the employer can prove that he would have fired you even without considering your age. This is huge, because no employer is foolish enough to admit firing the employee for an illegal reason; there will always be some file that has been worked up for a while to justify the firing. Sometimes it is disguised as a corporate reorganization, or the creation of new positions that will now handle the tasks you did before you were fired. Under the City law, these excuses can often be shown to be exactly what they are: Mere pretexts to justify the illegal discriminatory firing.

What if You Didn’t Work in New York City?

Federal Law – It’s Bad – But Don’t Despair – It May be Getting Better Soon

If you didn’t work in NYC, you can sue under New York state law [4] , but unfortunately, New York state law is tied to the federal anti-discrimination law [5] , which has been gutted by decisions from the Supreme Court of the United States. With rare exception, all employment decisions that come down from the US Supreme Court now are decided against workers and in favor of management.

Since 1967, the ADEA [6] was added to the federal law to protect older workers from age discrimination, but that law has been severely hobbled by the Supreme Court of the United States. Most discrimination laws, such as Title VII of the Civil Rights Act of 1964 [7] , which protects against discrimination based upon race, color, religion, sex, or national origin, are still decided on a mixed motive standard, similar [8]  to the way that age discrimination would be decided under the City law.

However, in a 2009 case [9] ,  the US Supreme Court (in an opinion written by Clarence Thomas) held that someone suing for age discrimination under the federal statute was no longer allowed to argue mixed-motive; they had to prove their case by what lawyers call a “but-for” standard. This requires proof that the firing decision would not have been made if the person’s age had not been a factor. This is extremely difficult for the employee to prove, and it even allows the employer to say that your age was part of the reason you were fired, but there were other reasons too, and if you had been younger, you would have been fired anyway. This really turns the mixed-motive standard upside down in favor of the employer, requiring the employee to carry a very heavy burden to win.

THE GOOD NEWS is that there is bipartisan bill currently under consideration in Congress called POWADA [10] , which has been co-sponsored in the Senate by Chuck Grassley (R-Iowa) and Susan Collins (R-Maine), and the House version has been co-sponsored by Jim Sensenbrenner (R-Wis.) and is supported by Reps. Glenn Grothman (R-Wis.), Will Hurd (R-Texas) and John Katko (R-N.Y.). This is very important, because it means that with Republican co-sponsors, the bill is likely to pass in the Senate, and the House is now under democratic control, so it will definitely pass there. Although President Trump will probably not be very sympathetic to this Issue, it’s probably not important enough for him to veto it.

age discriminationIf this passes, it will effectively overrule the US Supreme Court case mentioned above, and allow age discrimination victims to bring their cases in federal court under a mixed motive standard, with a much higher chance of success. This also translates into a better chance of getting a decent settlement offer without going to court. It will also go a long way toward overcoming the very hostile attitude federal judges now have toward age discrimination cases. There are not many changes in federal law these days that are favorable to workers – but it looks like we have one coming down the pike.

[1] Title 8 of the Administrative Code of the City of New York, The Local Civil Rights Restoration Act, effective October 3, 2005, as well as Local Laws 1, 34, 35, 36, 37, 38, and 40 of 2016

[2] Jury “Instructions” are an explanation of the law which is read to the jurors by the judge at the end of the trial. These “instructions” break down the legal requirements the person bringing the lawsuit has to prove in order to prevail on any claim against a particular defendant. These are read to the jury in every civil trial in New York. CPLR § 4110-b.

[3] Ny Pattern Jury Instructions – Civil, 2019 ed. § 9:2.

[4] Executive Law § 296.

[5] Mittl v. New York State Div. of Human Rights, 100 NY2d 326.

[6] Age Discrimination in Employment Act, 29 USC  623(a).

[7] 42 USC § 2000(e) et seq.

[8] While there are some similarities, all discrimination cases are much easier to prove under the City law.

[9] Gross v. FBL Fin. Servs., 557 U.S. 167, 129 S. Ct. 2343, 174 L. Ed. 2d 119.

[10] Protecting Older Workers Against Discrimination Act, S 485.

 

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The Stormy Daniels Case Made Easy: Contract Law for Porn Stars
by cjleclaire
Apr 24, 2018 | 36549 views | 0 0 comments | 1373 1373 recommendations | email to a friend | print | permalink

In Stormy Daniels v. Donald J. Trump, Michael Cohen, and the LLC that paid her the $130,000 in hush money, in federal court in Los Angeles, she is asking the court to let her out of the non-disclosure agreement she signed. The actual Non-Disclosure Agreement (“NDA”) is attached to the complaint.

Stormy Says: Trump never signed the NDA so he would be able to deny any knowledge of the agreement, therefore, no agreement was ever entered into by all the parties. Contract law says that there has to be a “meeting of the minds”. In fact, when asked by reporters recently, Trump said that he had no knowledge of the NDA at the time it was entered into, so there couldn’t have been any meeting of the minds.

Stormy also Says: The NDA shouldn’t be enforced because the payment made to her was illegal. When a contract requires either party to break the law to complete the contract, the courts generally will not enforce it. For example, if someone enters into a contract that requires someone else to perform an act of prostitution, the court will not enforce the contract for either side, because to complete the contract, someone had to perform an illegal act. Stormy’s argument is that either Cohen, or the company that paid her, had to violate the campaign finance laws to carry out the contract. Cohen has publicly said that he paid the $130,000 out of his own money, and Stormy’s argument is that the payment for her to stay silent was really made to help Trump win the election, so it was effectively a campaign contribution by Cohen of $130,000, which is way more than the $2,700 an individual is allowed to make (corporations are not allowed to make any contributions at all). Incidentally, if Trump had admitted knowing about the NDA and said that the payment was made out of his own money, or that he had agreed to pay the $130,000 back to Michael Cohen, there would be no election law violation at all, because Trump (or anyone else) is allowed to contribute his own money to his own campaign with no limits.

The Donald Says: Even if he didn’t sign the contract, Cohen signed it on behalf of the company that paid her. More important than that, basic contract law says that an agreement only has to be signed by the person you are trying to use it against, so it became enforceable when Stormy signed and accepted the money. Trump can therefore enforce it against Stormy whether he signed it or not, and it is just not fair to let her avoid the deal she made because the rights she sold are now worth a lot more than $130,000; a deal is a deal. Besides, even if Trump didn’t sign, it was clear that the company that paid the money was paying it to protect Trump, so he was what lawyers call a “third party beneficiary”, i.e., it was clear that the contract was being made for Trump’s benefit. Whether he signed or not, Stormy can’t really say that she didn’t know the contract was for Trump’s benefit.

Cohen and the Donald Also Say: Cohen is very close to Trump and has been acting as his lawyer for many years, so he has acted many times to protect Trump.  He did this by paying women off to stay quiet just like Stormy, who was not exactly the Donald’s first love, and has done this well before anyone thought about any elections. Therefore, this was not a campaign contribution and it was not illegal.

The Search Warrant Hits and the Donald Asks to Put the Stormy Case on Hold:

Next, on April 9, 2018, federal agents in New York seized numerous documents, phones and computers from Michael Cohen, the president’s private attorney. Cohen’s lawyers ask the judge to stop the FBI and prosecutors from looking at the materials because Cohen is a lawyer, and the documents are subject to the “attorney-client privilege”. President Trump asks to “intervene” (join in the request) because he is Cohen’s client, and he has a legitimate privacy interest because whatever he told his attorney is privileged. The judge gives Trump permission to join the case.

 

Even though there is no criminal case pending against Cohen yet, it looks like the Government will probably bring an indictment against him.Trump and Cohen ask the California federal judge to put the Stormy Daniels case on hold (to “stay” the case). If a witness in a civil case is asked about facts for which is he under criminal investigation, he can use the Fifth Amendment instead of answering the question on the grounds that the answer might incriminate him. The fact that someone “took the Fifth” cannot be used against a defendant in a criminal case, but it can be used against anyone in a civil case. If jurors hear any witness take the Fifth in a civil case, they will usually assume that he is guilty of criminal conduct, and it becomes very difficult for him to win the civil case. President Trump, who is also a party to the Stormy Daniels case, is claiming that Cohen is the only person in the case with knowledge of the facts, and that if Cohen has to take the Fifth instead of testifying, Trump will effectively be deprived of his right to present his defense.

The Judge in the Stormy Daniels Case Says: He is not deciding the request to put the case on hold based on what Cohen’s lawyers have said; he wants to hear from Cohen himself. He has ordered the defense to file an affidavit signed by Cohen himself, showing why he really needs the stay, by Wednesday, April 25, 2018. He’s going to have to convince the judge in California that he really will have to incriminate himself in order to testify in the Stormy Daniels case, which is not a good position to be in, particularly in such a high profile case. I can’t wait to see it.

Stay tuned for the next blog post about the DNC lawsuit against the Trump campaign.

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Wish You Had a Case Against Harvey Weinstein? Maybe Not
by cjleclaire
Apr 05, 2018 | 34566 views | 1 1 comments | 590 590 recommendations | email to a friend | print | permalink

The parent company of Weinstein Co.filed for Chapter 11 bankruptcy protection in Delaware on March 20, 2018. Before that, Eric Schneiderman, the New York Attorney General, had filed a lawsuit against the Weinstein companies on February 11, 2018 based upon its gender based hostile work environment and a pattern of quid pro quo sexual harassment. After over 100 women made accusations against Harvey based on his outrageous behavior and the company fired him in October 2017, it became clear that his company could no longer continue without new leadership. There were negotiations with a potential buyer which would have included $90 Million in funding to pay the claims, but the deal fell through. After the company filed Chapter 11, a new buyer is negotiating a deal which does not include any fund for the payment of claims. These women’s claims will now have to compete with all of the company’s other creditors for limited funds. In fact, they are at a disadvantage because most of the their claims never reached a judgment, which at least would have given them a claim for a certain amount. When a dollar amount has to be assigned to any contested claim in bankruptcy court, it will always be at a much lower amount than it would have been if the woman could have presented her case to a jury. All of the women can still bring their cases against Harvey Weinstein personally, but his income is now limited and he had just gone through a very expensive divorce.  They’d better hurry up and get a place in the line.

 

What is Quid Pro Quo Sexual Harassment?

Casting Couch 101. STAGE REVIEW: “Schooled” by Lisa LewisQuid pro quo is latin for something received or traded for something else. Applied to sexual harassment, it means the boss or supervisor will give the employee something (a raise or a promotion) in return for satisfaction of a sexual demand, or when a manager or other authority figure implies that he will not fire or punish the employee as long as she agrees to give him some type of sexual favor. While we usually think of men as the culprits, be aware that there are also cases where women demand sexual favors from men or from other women as well. Andrea Ramsey, a former executive, had to drop out of the race to become the democratic candidate for a competitive congressional district in the Kansas City area, when it came out that a man had filed a lawsuit against her in 2005 claiming he had been fired for rejecting her sexual advances. She denied that the claim was ever valid, but in December 2017 she acknowledged that in this climate, candidates were being held to higher standards, and the allegation was enough to make her abandon her congressional bid.

 

Can a Sexual Harassment Claim be Wiped Out (Discharged) in Bankruptcy?

Image result for Bill Cosby laughing

A sexual harassment claim can continue even if the guilty party has filed bankruptcy if it is “willful and malicious”[2], but the conduct has to be very serious. For example, where a father had sexually abused his daughter for 10 years, beat her, warned her not to tell others, and threatened her life, the bankruptcy court held that there was no need to have any trial on whether the conduct was willful and malicious, the harm was inevitable, and the daughter’s judgment was non-dischargeable and had to be paid even though the father had gone bankrupt[3].  In that case, the daughter had already obtained a judgment. Where there is an accusation of touching that the offending party denies, there will have to be a trial in the bankruptcy court. While I have not been able to find any cases on this, I am very confident that if the woman had to meet sexual demands to keep her job, she would win if the court believed her claims. On the other hand, if the conduct involved only verbal abuse and the injury was psychological, I think the claim would probably be wiped out by the bankruptcy, but I cannot find any reported case which answers this question either way. This is particularly true because bankruptcy judges tend to think only in economic terms, and are generally not receptive to awarding limited dollars against claims of emotional trauma, as opposed to giving it to creditors who have sustained economic losses in hard dollars and who are only going to get a small portion of their claims paid. This might change with the advent of the #metoo movement, though – we’ll have to wait and see.

[1] Weinstein Accusers Face Difficult Road to Recovery in Bankruptcy, NYLJ 3/24/18

[2] 11 USCS § 523(a)(6).

[3] Henderson v. Woolley (In re Woolley), 288 B.R. 294, 303, 2001 Bankr. LEXIS 2106, *22

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Mickey Ceeee Sr.
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April 16, 2018
Very Well Written! Good Job! Mickey

What are the Real Issues in the Sofia Vergara Embryo Lawsuits
by cjleclaire
Sep 14, 2017 | 41122 views | 30 30 comments | 946 946 recommendations | email to a friend | print | permalink

by Bill Cafaro

How Have the Cases in Other States Been Coming Out? What are the Rules?

Sofia Vergara, one of the most beautiful women in the world and one of the highest paid women in television[1] was engaged until 2014 to Nick Loeb, the son of a diplomat and philanthropist, great grand-nephew of former New York governor and banking heir Herbert H. Lehman, and cousin of the heir to the Seagram fortune, who admitted that even she thought he was a “dorky guy”.

 

 

 

 

 

They wanted children but she wanted a surrogate to carry the pregnancy to term, so they went through IVF treatment. The first time, one implantation failed, and the surrogate miscarried. They went for a second egg retrieval, resulting in two female embryos,[2] which were cryogenically frozen. After they split up, he wanted the embryos to implant in a surrogate mother, which she refused to allow. Each time she had undergone IVF treatment, they both signed consent forms at the IVF facility which did not specifically say what would happen if they separated, which is required by California law,[3]  but they did say that they would only be implanted if both of them agreed to it.

Why Drag This Through the Courts?

Her lawyers say that Loeb is just trying to keep himself in the public eye, that he had always used her celebrity status to promote his hot dog condiment business[4], and that if he really wanted a family, he should hire a surrogate and an egg donor without unnecessary legal battles. He says that his position is not just about saving lives; it is also about being pro-parent. However, these cases are not really right to life cases, because the chance of successful implantation of viable frozen embryos is a subject of scientific debate, but from a 40 year old egg donor, probably somewhere in the range of around 30% to 40%[5]

Loeb’s Two Previous Girlfriends Who Had Abortions

In the second case Loeb brought against Vergara in California, her lawyers asked to question two previous girlfriends who had aborted pregnancies fathered by Loeb, to try to show that his pro-parent beliefs were not as sincere as he claimed. Vergara won on this issue, and the California judge ordered Loeb to tell her the names of the two prior girlfriends, and also ruled that Vergara’s lawyers could question them under oath. Loeb publicly said he would go to jail before he revealed their names, and apparently abandoned the lawsuit rather so he would not have to obey the judge’s order.

A woman is entitled to bring a pregnancy to term even if the man objects. Shouldn’t a man who is willing to take on all parental responsibilities be similarly entitled to bring his embryos to term even if the woman objects? 

What are the Rules?

There is no federal law in this area, so it depends on what state you live in. Most courts will generally follow the directives on the forms the couple signed at the IVF center, however, the result might have been different if Loeb and Vergara had been married, because they lived in California, a community property state. Embryos clearly are viewed as property in New York, and in a New York case[6] very similar to this one, the wife was denied the right to thaw the embryos over the husband’s objection, based upon the form she had signed. In both New York and California, the egg and the sperm donor are considered parents and have all parental obligations, including all the financial support obligations they would have for their own biological child, even if the embryo was thawed and implanted over their objection. For this reason, most courts are very reluctant to impose the burden of unwanted fatherhood upon the man, which is sought by the wife in most of the cases that have been brought. On the other hand, people who start IVF treatment which results in a live birth will generally be shouldered with parental obligations even if they are not the biological donors. In one California case[7], a couple consented to IVF treatment with anonymous egg and sperm donors, and contracted with a surrogate who carried the baby to term, and the father filed for divorce a week before the birth. The wife, over the husband’s objection, sued to have them both declared the legal parents of the child, which the court refused to do because neither of them had any biological connection to the child. However, on appeal, it was held that they were both the legal parents of the child, reasoning that it would generally be in the best interests of the child to have a rule giving parental rights to the people who set the process in motion. This would also take the burden of support away from the taxpayers. While the father in that California case clearly did not want parental support obligations, the court quoted another case which had observed that “a deliberate procreator is as responsible as a casual inseminator” [8].

Sofia Vergara Gets Cajun Justice

Louisiana law, unlike any other state, has a specific law giving embryos rights as legal persons[9], and the judges will resolve any disputes between the “parents” about the embryo in the best interests of the embryo[10], in the same way that judges in all other states decide custody cases in the best interests of the child. For this reason, Loeb filed  another lawsuit in the names of the embryos only, against Vergara in Lousiana state court, and Vergara transferred[11]  the case to the federal court in Lousiana. “Diversity Jurisdiction” in federal court means that the lawsuit is between citizens of different states, and the amount in dispute is greater than $75,000. No federal judge can decide any case without first finding that there is federal jurisdiction, so to decide this, the judge had to decide if the embryos were citizens, even though they were created in a state that did not give them legal status. First, no one knows if embryos can be “citizens” for federal jurisdictional purposes, and no one, let alone a judge, has ever placed a dollar value on an embryo, so how could a judge possibly fix a value in a court case?  The case also presented constitutional questions concerning procreation rights, and whether federal law “preempts” (takes precedence over) the Louisiana state laws giving rights to embryos from artificial insemination, because under Louisiana law embryos cannot be intentionally destroyed. The judge observed that all these difficult questions could be avoided by first deciding whether Sofia Vergara could be sued in the state of Louisiana at all in the first place. Any court, state or federal, needs some specific basis to make anyone answer and defend a lawsuit in any state where they don’t live or have a business[12]. This rule is called personal jurisdiction, and this is what gives the court legal power over anyone who is being sued. In this case, Sofia Vergara lived in California and had the IVF treatment which created the embryos there, she had never lived in Louisiana, she had only made a movie there and rented a house there for a few months. Even if she had, as Loeb claimed, had some conversations with him about the embryos there and that they had planned to live there in the future, that would not be enough to force her to defend any lawsuit in Louisiana. The judge therefore dismissed the lawsuit against her, because she did not have enough “minimum contacts” with Louisiana to make her defend a lawsuit there. This rule makes sense because it would be fundamentally unfair, for example, to make someone who lives in New York defend a lawsuit in Alaska. While it might sound like the judge was being lazy in dodging these tough questions, she was not – there are rules[13] in place that required her to do this, because judges are not supposed to make difficult, novel decisions where the case can be completed decided by ruling on the simple issues first. Because it has already been held that Vergara cannot be sued in any court in Louisiana, he cannot sue in any Louisiana court again; if he wanted to challenge that result, he would have to appeal from the decision dismissing the case, and it does not appear that he has done so. Loeb is a wealthy man, and can certainly afford to pay lawyers to file another lawsuit, but it looks like he has exhausted all of his available legal options, and if he files any other lawsuits in California or in Louisiana, a judge could find them to be frivolous, meaning baseless with no real legal argument which has any chance to succeed and sanctions, (fines) could be imposed on Loeb and/or his lawyers.

How Have the Cases in Other States Been Coming Out?

At the end of the day, in almost all of the reported cases in the country, judges have honored the choices the couple made on the forms they signed at the in vitro facilities at the time, but the courts are very reluctant to make someone become a parent against their wishes. The Supreme Judicial Court of Massachusetts has said that even if the signed forms required one of the parties to become a parent against their will, this could not be enforced because it would be against public policy[14]. Cases in which there were no signed forms or presented circumstances not covered by the forms have used a “balancing approach” between the interests of the parties. In one case in Pennsylvania[15], the embryos were frozen and the husband and wife divorced. They had not signed the form saying what would happen in the event of divorce. The wife wanted to keep the embryos but the husband, who had remarried and had a child with another woman, wanted them thawed and destroyed. The Pennsylvania court said that ordinarily, no one should be made a parent over their objection, but the wife had undergone extensive chemotherapy and radiation treatment for cancer, and was obviously unable to be a biological parent without the embryos. In that case, the court found that the wife’s interest in the embryos, which were property subject to “equitable distribution” after a divorce, outweighed the husband’s interest in not becoming a parent. In another case in Illinois[16], the woman, a doctor who had been diagnosed with cancer, underwent IVF with her boyfriend before beginning her chemotherapy treatment, which she knew would cause ovarian failure and destroy any possibility of her conceiving a child naturally. The forms they signed said that if they could not agree on what should happen, that the embryos should be donated to another couple. Again, because of the woman’s complete inability to become a biological parent, the Illinois court found that there was a verbal agreement between the parties that was not changed by what they signed on the forms.

The result might have been different in the Sofia Vergara case if Loeb had been able show that it was biologically impossible for him to father another child, but we will never know.

[1] Besides earning $325,000 per episode for “Modern Family”, she does extremely lucrative endorsements. A selfie posted on her social media account was used without her permission in an advertisement, which prompted a $15M lawsuit, alleging that this is what she normally gets for an endorsement. While the amount of the settlement against Venus Legacy in March, 2017 was confidential, it was certainly a respectable sum.

[2] “Embryo” is a technical misnomer in these cases. These are actually fertilized ovum, which are more accurately referred to as pre-embryos which can develop into embryos if successfully implanted in a female uterus.

[3] Cal. Health & Safety Code § 125315(b)(3).

[4] Loeb’s Crunchy Condiments

[5] https://www.ncbi.nlm.nih.gov/pubmed/24365019

[6] Kass v. Kass, 91 N.Y.2d 554 (1998).

[7] In re Marriage of Buzzanca, 61 Cal. App. 4th 1410, (Cal. App. 4th Dist. Mar. 10, 1998).

[8] Michael U. v. Jamie B., 39 Cal. 3d 787, 1985 Cal. LEXIS 336 (Cal. Sept. 19, 1985).

[9] An in vitro fertilized human ovum is a juridical person, La. Revised Statutes § 9:123.

[10] La. Revised Statutes § 9:131.

[11] Although Loeb filed a lawsuit in the names of the Embryos is the Louisiana State court in the Parish of Jefferson, Vergara removed the case on diversity grounds, 28 U.S.C. 1441, to federal Court in the Eastern District of Louisiana  Human Embryo #4 HB-A v. Vergara, Civ-17-1498 Section “S” (1)(E.D. La. 2017) based on diversity jurisdiction, 28 USC § 1332.

[12] The defendant has to have “minimum contacts” (“presence” ) within the state where they are being sued so making them defend a lawsuit there does not offend traditional notions of fair play and substantial justice, Int’l Shoe Co. v. Wash., 326 U.S. 310, 316-317, 66 S. Ct. 154, 158, 90 L. Ed. 95, 102, 1945 U.S. LEXIS 1447, *13, 161 A.L.R. 1057 (U.S. Dec. 3, 1945). This rule was made much stricter in the New York federal courts when the case against the PLO for terrorist attacks was dismissed because the federal appeals court found there was no “personal jurisdiction” over the PLO. Waldman v. PLO, 835 F.3d 317, (2d Cir. 2016).

[13] This is called “judicial economy and restraint”, see,  Ruhrgas Ag v. Marathon Oil Co., 526 U.S. 574, (1999); Alpine View Co. v. Atlas Copco AB, 205 F.3d 208, 213-214, (5th Cir. 2000).

[14] A.Z. v. B.Z., 431 Mass. 150, 725 N.E.2d 1051, 2000 Mass. LEXIS 163 (Mass. Mar. 31, 2000).

[15] Reber v. Reiss, 42 A.3d 1131, 2012 Pa. Super. LEXIS 167, 2012 PA Super 86 (Pa. Super. Ct. 2012).

[16] Szafranski v. Dunston, 2015 IL App (1st) 122975-B, 34 N.E.3d 1132, (Ill. App. Ct. 1st Dist. 2015).

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DEFAMATION – The Ground Rules and How They Played Out in Sarah Palin’s Lawsuit against the New York Times
by cjleclaire
Aug 31, 2017 | 31148 views | 6 6 comments | 546 546 recommendations | email to a friend | print | permalink

Why Can’t People Sue……
Anytime the Media Says Something Obviously
False About Them?

Because the U.S. Supreme Court has placed severe restrictions on libel lawsuits  since 1964[1] because it would be a restriction of the right to freedom of the press under the First Amendment.[2] Obviously, the person suing has to prove that the statement was false. Keep in mind that we are only talking about publishing incorrect facts; any statement fairly viewed as an opinion cannot be the basis of a lawsuit.[3] To win a defamation case, the person suing has to prove actual malice, (in this context, the word “malice” does not have the meaning we ordinarily use). Actual malice means that the author[4] i) knew it was false, or, ii) had reason to suspect it was false, but went ahead and published it anyway[5]. This suspicion can sometimes be shown by obvious reasons to doubt the source of the information or the accuracy of the source’s previous reports.[6] Actual malice has to be proven by clear and convincing evidence, which is a much tougher standard of proof than what’s required in most civil cases. Actual malice is very hard to show, and most defamation cases against the media are dismissed on this basis soon after they are filed.[7]

Why is it So Hard to Sue for Defamation?

Because the courts don’t want to make the media defend these lawsuits, which become very expensive, and which are also intrusive, because they allow questioning by their opponents’ lawyers about internal policies and procedures. This could intimidate the media from engaging in robust criticism on both sides of the aisle that society needs.

The Times Goofs about Linking Palin to Giffords’ Shooting and Palin Takes the Times to Court

On June 14, 2017, the day Rep. Steve Scalise was shot on a baseball field with other Republican lawmakers, a NY Times editorial entitled “America’s Lethal Politics”, referring to the 2011 shooting in Tucson of Rep. Gabby Giffords, said “the link to political incitement was clear. Sarah Palin’s [PAC] circulated a map of targeted electoral districts that put Ms. Giffords and 19 other Democrats under stylized cross hairs. Conservatives and right wing media were quick…to demand forceful condemnation of hate speech and crimes by anti-Trump liberals. They’re right. Though there’s no sign of incitement as direct as in the Giffords attack, liberals should of course hold themselves to the same standard of decency that they ask of the right.”

Everything in the bold text above was clearly false. Giffords’ assailant, Jared Loughner, had been obsessed with her well before the map was published, there was no evidence he had ever seen the map, and it had been widely reported in the mainstream press, including the Times, that there was no evidence linking Giffords’ shooting to the map. Second, the crosshairs on the map were over the districts, not over the Democratic representatives themselves. In fact, a hyperlink in the disputed editorial took the reader to the earlier Times article with all the correct facts. The editor who inserted them in a re-write had clearly failed to investigate facts that were readily available to him, literally by just clicking that hyperlink, but negligence, even gross negligence, in fact checking is not enough to show actual malice.[8]

The Judge Puts the Times’ Editor on the Spot

When U.S. District Judge Jed. S. Rakoff asked the editor if he had any information suggesting that the map was in linked to the shooting in any way, he incredibly answered that “it didn’t enter [his] reasoning at the time that [Giffords’ assailant] was acting because of this map.” He told the judge that he had not meant that there was a causal link between the map and the shooting, only that there was a link between the incitement and the victim. For someone who had been a journalist for 25 years, these answers sounded much like he had pulled them out of a certain bodily orifice. (Transcript pp. 13-18). The defendant can argue “that’s not what I meant”, and still win when the statement is ambiguous[9], but the statement in this case looked pretty clear. He also admitted that he had never looked at the map.

The Judge Tosses the Case

 

In spite of the fact that the editor had obviously been negligent in fact checking, the error had been made under the pressure of an upcoming deadline, and the judge felt that it was a good faith error. He said that the hyperlink to the article (which he called the modern equivalent of a footnote) with the correct facts showed a lack of actual malice, and the editor also testified that when readers complained about the claim that there was a clear link between the map and the shooting, he issued an on line correction[10]  at 5AM the next morning, and in the print edition the next day. Sarah Palin will certainly appeal from the dismissal, arguing that the fact that the editor initially had no basis for saying that there was a direct link between the map and the shooting, but in my opinion, the judge’s decision will probably be upheld because of the hyperlink to the article with the correct facts and the very prompt corrections. Palin’s lawyers argued there was malice because the Times is always bashing her, attempting to portray her in a bad light to boost readership. In fact, in her complaint, ¶ 29, she quoted a previous Times column: “Yes, she’s about as sharp as a wet balloon, but we already know that… What purpose does [devoting more time and energy to that] serve other than inflaming passions to drive viewership and Web clicks?[11]   In his decision, the Judge acknowledged that the Times Editorial Board has no fans of Sarah Palin, but said that it is not the role of the courts to insure that media outlets are  unbiased.

Is This a Good Result for Society?

In my opinion it is, because holding the media liable for any statement that turns out to be wrong would be a restraint that neither the Times or Fox should have to live with, especially in the blinding speed of today’s news cycles. While journalists have professional obligations to get verification of what they publish, exposing them to constant lawsuits every time they fall short would take a lot away from the vitality of free public expression. On the other hand, we also need some mechanism to keep the media honest, and these lawsuits serve that purpose. It’s a difficult balancing act, but someone has to do it.

In an upcoming blog, we will look at the defamation lawsuit brought by investigator Rod Wheeler that accuses Fox News of manufacturing the Seth Rich murder conspiracy. Even after Fox retracted the story, Sean Hannity still takes it around the dance floor as if it had never been discredited.

[1] New York Times Co. v. Sullivan, 376 U.S. 254 (1964) put new burdens on public officials suing for defamation, which were extended to public figures in 1967, Curtis Pub. Co. v. Butts, 388 U.S. 130, and then to private persons that become public figures for a limited range of issues in 1974, Gertz v. Robert Welch, 418 U.S. 323.

[2]
NOTE OF CAUTION: This blog only deals with rules about defamation of a public figure by a media defendant on a subject of public concern. Defamation law gets complicated and involves very different rules when the case is brought by a private person, as opposed to a public figure, when the statement involves a private subject, as opposed to a matter of public interest, when products or businesses are disparaged, and also changes with several other variables.

[3] Immuno AG v. Moor-Jankowski, 77 N.Y.2d 235, 254 (1991).

[4]The “ knowingly false” requirement cannot be proven by showing that other people at the same media outlet knew it was incorrect, the author has to know personally. N.Y. Times Co. v. Sullivan, 376 U.S. 254, 287-88 (1964).

[5] This is legally referred to as “reckless disregard” for the truth, but in this legal context, “reckless” doesn’t have its ordinary meaning either.

[6] Herbert v. Lando, 781 F.2d 298, 308, (2d Cir.1986); St. Amant v. Thompson, 390 U.S. 727, 731, (1968).

[7] Motions to dismiss just claiming that the complaint is insufficient, Fed. R. Civ. P. 12(b)(6); CPLR § 3211(a)(7).

[8] St. Amant v. Thompson, 390 U.S. 727, 731, (1968)

[9] Kendall v. Daily News Publ’g Co., 716 F.3d 82, 90-91 (3d Cir. 2013); Corporate Training Unlimited, Inc. v. NBC, 981 F. Supp. 112, 119-23 (E.D.N.Y. 1997).

[10] Publishing the corrections does not mean that the case has to be dismissed, but prompt corrections can be viewed as some evidence that the outlet did not act with actual malice. Hoffman v. Washington Post Co., 433 F. Supp. 600 (D.D.C. 1977).

[11] NY Times column written by Charles Blow on December 3, 2010.

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ZincM
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April 02, 2018
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The James Damore Google Memo Firing and Its Legal Consequences – It Could Potentially Blaze New Trails in Constitutional Law
by cjleclaire
Aug 16, 2017 | 33017 views | 2 2 comments | 681 681 recommendations | email to a friend | print | permalink
James Damore is the Google software engineer who wrote the “Google’s Ideological Echo Chamber,” Memo, arguing that genetics are the primary reason why software engineering is dominated by men. Stated that way, his position sounds very sexist, but, in fairness to him, he does not say that women are inferior, but that as a group, men and women have different innate abilities, propensities and goal orientations, (all of which overlap with those of men) and consequently women tend to make different career choices as a group. He posits that “Differences in distributions of traits between men and women may in part explain why we don’t have 50% representation of women in tech and leadership. Discrimination to reach equal representation is unfair, divisive, and bad for business”. He concedes that sexism exists in Google and in society, and he does say that diversity is a desirable goal. As an employee advocate who has represented many women, I personally think it is intellectually dishonest to characterize his Memo as sexist or misogynistic, even though some of his assumptions are questionable and his conclusions are obviously politically incorrect. In his YouTube interview with right wing host Stefan Molyneux, he argues that just as the right ignores the science on climate change and evolution, the left ignores the science on how men and women are wired differently because it leads to conclusions that make them uncomfortable. By voicing the complaint that left leaning political correctness within the company prohibits expression and shames conservative viewpoints, this young man provoked a very significant debate inside Google’s top management. Forced to choose between two of the priorities for which it is noted, freedom of expression and the quest for diversity; it came down on the side of diversity. While we are obviously not privy to management’s internal debate, this conversation took place against the backdrop of a U.S. Dept. of Labor investigation which accused Google of “extreme” gender pay discrimination[1]. While Damore might go on to make himself a posterchild for the alt-right and associate himself with some indefensible viewpoints, this blog post is confined to the content of his Memo and its potential legal consequences.

Regardless of Google’s Internal Policies, Doesn’t He Have the First Amendment Right of Free Speech to Say Anything He Wants?

James Damore Google EngineerAbsolutely, he does. But that doesn’t affect Google’s right to fire him for saying it. California is an “at will” state, meaning that the Employer can fire an Employee for any reason or for no reason, as long as it is not for an illegal discriminatory one. A private company can fire any “at will” Employee for expressing almost any viewpoint, on or off the job, and can clearly fire anyone for advocating a discriminatory labor practice in the workplace. On the other hand, a convincing case can be made that he was fired for expressing views that Google’s policies actually constitute discrimination based upon gender – discrimination against men, because allowances and adjustments are continually made at Google to strive for equal representation between men and women, leaving fewer of these desirable lucrative jobs for men. Discrimination claims brought by the members of the non-minority group against affirmative action programs are referred to as reverse discrimination claims.

Reverse Discrimination Claims in the Workplace – The New Haven Firefighter’s Test

Reverse Discrimination Claims are clearly being recognized in the Courts, even though they have had somewhat limited success up to this point. But see, Ricci v. DeStafano[2], in which the results of New Haven, CT Fire Department exam for captains and lieutenants were thrown out altogether because no black applicants qualified for promotion. The white and Hispanic applicants sued, claiming that they had been intentionally discriminated against by the City based on their race, which, in constitutional law, is called disparate treatment. The Supreme Court said Title VII[3] (the federal law against discrimination in employment) prohibits both intentional discrimination (the “disparate treatment” given to the white and Hispanic applicants) as well as, in some cases, practices that are not intended to discriminate but in fact have a disproportionately adverse effect on minorities (known as “disparate impact”, the result which followed for the black applicants).  Because no black applicants qualified, the City threw all the test results out and no one was promoted, so the white and Hispanic applicants had obviously been subjected to disparate treatment. The City, on the other hand, argued that this was necessary to avoid a clear disparate impact, i.e., no black applicants qualifying for promotion. The Supreme Court reversed all lower courts, holding that once the test had been set up, applicants had paid for it, taken time to study for it, and legitimately expected to be promoted or not based upon a legitimate expectation that their race would not be a factor, throwing the test results out amounted to exactly the sort of racial preference Congress had been trying to prohibit. The Supreme Court reasoned that even though there was a disparate impact, the test was job related and consistent with business necessity, and there was no equally valid non-discriminatory alternative which the City had refused to adopt. Affirmative action continues after this ruling because selection processes are designed to include race as only one of a series of factors that make up some kind of a composite score, so no hard and fast racial quotas, (which would clearly constitute disparate treatment) are ever used. “See, Fisher v. University of Texas[4]. While the Courts do take reverse discrimination claims seriously now, they are still very difficult to win, and as long as Justice Kennedy stays on the Court and is unwilling to abandon affirmative action, this is likely to continue. On the other hand, if Kennedy retires or dies and is replaced by a Trump appointee, affirmative action as we know it will probably come to an end. In such an environment, James Damore would unquestionably win.

The Google Memo as a Retaliation Case – Fired for Complaining About Reverse Discrimination

Damore was not fired because of his gender, which is the classic Title VII discrimination case; instead his argument is that he was fired in retaliation[5] for opposing an unlawful practice under Title VII, which is good enough. He would also likely file under the California statute prohibiting retaliation for complaining about any discriminatory practice.[6] To make a claim for being fired based on gender, he would have to prove that Google’s policies were actually discriminating against men – which would be exceedingly difficult, if not impossible. But in a retaliation case, he only has to show that he honestly and reasonably believed that the practice he spoke against was unlawful, even if this is not ultimately found to be correct.[7] To win this claim, he doesn’t have to hit a home run – he just has to get to first base. He would have a good chance to do this under the state of the law as it actually is now, because the Fox News viewers on the jury would vote for him, feeling that a conservative viewpoint was suppressed within a liberal organization. Ironically, this is one of those few employment cases where the employee would be better off with a conservative jury panel. However, if he filed his case in federal court, it would likely be assigned to the San Jose courthouse in the Northern District of California, and his jury pool would be drawn from four counties that went for Hilary Clinton in 2016.  I think he would clearly be able to make out a case and get to trial, but no one can say how the jury would decide it.

Damore’s Petition with the National Labor Relations Board (“NLRB”)

Even before he was fired, Damore filed a petition with the NLRB, a federal administrative agency which usually deals with labor unions, but there is a right to “concerted activity for mutual aid or protection[8] by non-union workers as well. While the content of Damore’s petition is not yet publicly available, he will clearly allege that Google engaged in an unfair labor practice by interference, restraint, and/or coercion[9] with his right of concerted activity. This allows non-union employees to communicate amongst themselves about their working conditions for the purpose of improving them. According to the Department of Labor, this generally requires two or more employees acting together, but the action of a single employee may qualify if he is acting on behalf of others, or attempting to get others to act.  His best argument is that the Memo was circulated on the internal Google electronic bulletin boards to communicate to all other male software engineers that they should challenge the various allowances and adjustments which will eventually make 50% of the software engineers female. This would make their jobs more secure, and could legally qualify under this rule.

How Will the Case be Decided at the NRLB?

The case will first go before an Administrative Law Judge and could come out either way, but whichever party loses has the right to appeal to the Board, which consisting of 5 members appointed by the President. Often a panel of three Board Members will decide a case, but the full Board usually considers novel or potentially precedent changing cases. Although there are normally 5 Board members, there is still one vacancy, so there are only 4 members on the Board now, 2 Republicans and two Democrats, but Trump could fill that vacancy before the case gets there. Unlike cabinet members, NLRB members are appointed for 4 year terms, and cannot be fired by the President, so they are a little more independent. While there might be a desire on the part of the Republicans to rule in favor of a viewpoint which is attractive to the right, that would also create a precedent making it harder for employers to fire an employer for taking a liberal viewpoint, so it’s anybody’s guess what they would do. An NRLB decision can be appealed to a United States Circuit Court of Appeals, but which one? The Employer has the right to appeal to the D.C. Circuit in Washington, D.C., or in any circuit in which it has sufficient business operations. However, the party that brought the petition can also appeal, and the NRLB itself has the right to seek enforcement in any Circuit Court. If multiple parties file petitions for appeal within 10 days after the Board’s ruling, the Circuit Court that will decide the case will literally be determined by a coin toss. Mr. Damore has the potential to become the right’s standard bearer against affirmative action. This is really a ball game that could go either way, and appeals from the decision could also be a roller coaster ride for years.

Opinion: Whether the Memo’s Conclusions are Right or Wrong, Political Correctness Should Not Prevent Us From Having this Conversation

While some women will be offended by some parts of the Memo, and justifiably so, that was clearly not the author’s intention. Numerous blogs and articles have popped up which are not the least bit sexist, in fact, one written by Michael Kreiger (Liberty Blitzkrieg) makes the following cogent point: For example, American culture worships the Wall Street trader who makes $5 million a year while adding very little to no value to society, while looking down upon a mother or father who chooses to stay home and raise their children. Rather than reflecting upon the world we’ve created and admitting how perverse this is, the mantra seems to be “hire more women traders.” That’s a one-way ticket to nowhere.

It’s Food For Thought 

[1] Matter of Office of Federal Contract Compliance Programs, U.S. Dept. of Labor v. Google, Inc., Case No. 2017-OFC-00004.

[2] 557 U.S. 557, 129 S. Ct. 2658, 174 L. Ed. 2d 490 (2009)

[3] 42 USC § 2000e-2.

[4] 42 USC § 2000e-3.

[5] California Government Code § 12940(h), Fair Employment and Housing Act.

[6] Protesting what an employee believes in good faith to be a discriminatory practice is clearly protected conduct.42 U.S.C. § 2000e-3(a)Griffiths v. Cigna Corp., 988 F.2d 457, 468 (3d Cir. 1993). Thus, “a plaintiff need not prove the merits of the underlying discrimination complaint, but only that ‘he was acting under a good faith, reasonable belief that a violation existed.'” Griffiths, 988 F.2d at 468(quoting Sumner v. United States Postal Service, 899 F.2d 203, 209 (2d Cir. 1990)).

[7] 29 USC § 157.

[8] 29 USC § 158(a)(1)

[9] 136 S. Ct. 2198, 195 L. Ed. 2d 511 (2016)

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The Confidentiality Clause – The Abuse That Keeps on Giving
by cjleclaire
Jul 26, 2017 | 31535 views | 4 4 comments | 807 807 recommendations | email to a friend | print | permalink

The First Amendment guarantees us the right to free speech, but unfortunately, it is generally legal to force employees (or anyone else) to sign this away. Businesses do this by making people sign confidentiality clauses to get hired, to keep their jobs, or to get their settlement after any employment dispute or lawsuit. Confidentiality agreements prevent the Employee from talking about anything the Company doesn’t want discussed, and always include the amount of the settlement. Confidentiality will usually be accompanied by its evil twin, “Non-Disparagement.” A non-disparagement clause takes away the Employee’s right to say anything bad about the Company, whether it is true or not.  These clauses are sometimes called “Non-Disclosure Agreements”, but no matter what lawyers call them, they are best described as “Gag Clauses”. While the First Amendment still gives you the right to say anything you want, it does not prevent you from being sued if you violate an agreement you signed.

What’s So Bad About These Agreements? Shouldn’t Business Owners Have a Right to Some Privacy?

Businesses legitimately need non-disclosure agreements to protect their trade secrets and other vital information from their competition. Unfortunately, they can also be used to conceal systemic violations of laws and regulations, patterns of discriminatory conduct, or sexual harassment.  In those situations, offensive and illegal behavior can continue and flourish.  For example, Fox News used these clauses as a curtain to keep a culture of sexual harassment out of public view for over a decade, allowing Roger Ailes to rack up $45 Million in payouts for sexual harassment claims, and Bill O’Reilly another $13M. Because his victims had to sign confidentiality and non-disparagement clauses as part of their settlements, Ailes continued victimizing women in complete privacy. Ailes was probably able to remove many panties off that would otherwise have stayed on if these clauses were illegal. But for the most part, they are perfectly legal under federal law[1], and with a Republican Congress and President Trump in the White House, this will not change anytime soon.

In fact, President Trump loves these clauses so much that everyone who volunteered for his campaign had to sign one prohibiting them from saying anything bad about Trump, his family or his businesses forever, and it also required the volunteers to prevent their employees (if they had them) from doing so. It also prohibited them from campaigning for any other presidential candidate until 2024, even if Trump had had not gotten the nomination. https://arstechnica.com/tech-policy/2016/03/revealed-the-trump-campaign-nda-that-volunteers-must-sign/. While I like to think that the Courts would not uphold something this outrageous because it places an unnecessary restriction on political speech, the President has sued many people without having a good reason, and whether he’s ultimately going to win or not, who wants to be the one to find out?

Is This Problem Limited to the Employment Context?

No. For many years, the Catholic Church settled claims brought against pedophile priests using these same exact clauses, and it still does. The Diocese would transfer the pedophile priest to another distant parish, the family would sign a confidentiality and non-disparagement clause as part of the settlement, and the priest continued to prey upon different children while the risk remained hidden from their parents.

 

What Happens When You Break a Confidentiality or Non-Disparagement Agreement (“NDA”)?

You can be sued by the Company. When this happens, the Company has to prove the amount of money they actually lost as a result of what you said. As a practical matter, they usually cannot prove any hard losses as a direct result of whatever you said, so there are two tricks they use. One is called a “liquidated damages” clause, which means that if you say anything they don’t like, you have to pay them a specific amount of money; usually all of the money you received under any settlement. Second, the agreements usually make you pay their attorney’s fees for bringing the suit against you, which can be very expensive, aside from the fact that you will have to pay an attorney to defend yourself.

What Protections Are There Against This Under Existing Law?

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i) NEGOTIATE – If you are asked to sign papers as a condition of receiving a severance payment, you should consult with an attorney if possible. If you have any right to sue the Company, a lawyer might have leverage to negotiate some aspects of these provisions. For example, you might be able to negotiate that truth will be a defense to any non-disparagement claim. You might be able to negotiate that the Company has to get a jury to actually decide that you violated the agreement before you owe them any money. You might be able to negotiate that the Company has to prove the violation by “clear and convincing evidence”, (more proof than in an ordinary case) which can protect you against false “he said-she said” accusations that you said something you didn’t actually say. The Company will always require you to pay their attorneys’ fees if they sue you under the agreement, but a lawyer can often negotiate a clause for you that says that whoever wins the lawsuit will be able to collect their attorney’s fees from the losing party. At least this gives you some protection against the Company filing a baseless lawsuit against you, and your lawyer can recover your attorney’s fees from the Company if you win.

ii) LIQUIDATED DAMAGES MIGHT NOT BE ENFORCEABLE – If you get sued by the Company in New York for “liquidated damages” for breaking the confidentiality or NDA and the Company sues you to get the entire settlement amount back, don’t despair completely.There is a good chance that the New York courts will call this an illegal penalty clause and refuse to uphold it.[2] The larger the amount of money involved, the better your chances of winning with this argument. If you win on this ground, the Company will be limited to any actual losses it can prove happened as a direct result of what you said. If they cannot prove any actual damages, which they usually can’t, they will probably not be allowed to collect their attorneys’ fees either. The problem is that you will have to pay a lawyer to defend you, and there is no guarantee that this defense will succeed.

iii) LAW ENFORCEMENT – These agreements cannot legally stop you from reporting any illegal conduct to the appropriate law enforcement agency.

iv) FILING AN EEOC CHARGE – These agreements cannot stop you from filing a charge with the Equal Employment Opportunity Commission (EEOC), and possibly with other government agencies, but they usually will prevent you from being able to collect any money damages as a result of having filed such a charge.

v) IF YOU ARE SUBPOENAED TO TESTIFY – These agreements cannot stop you from giving truthful testimony if you are subpoenaed to testify in court or before any administrative agency by someone who suffered a similar violation by the Company. If you have signed an agreement like this and you are contacted by someone else who you would like to help in a different lawsuit against the same Company, just tell them to have their lawyer subpoena you, and the Company will not be able to sue you for testifying. You’re on solid ground with this.

vi) NON-PAYMENT OF WAGES – In cases for nonpayment of wages, confidentiality clauses are no longer permitted in the New York federal courts[3].

vii) WORKPLACE COMMUNICATION RIGHTS – The National Labor Relations Board (NLRB) held that Quicken Loans[4]could not enforce its non- disparagement clause because it violated the workers’ rights to criticize their employer and its products as part of their right to engage in protected activities, and employees sometimes do so in appealing to the public, or to their fellow employees, in order to gain their support. Be careful about relying on this one, though.

viii) I’M BROKE – SUE ME IF YOU WANT! If you don’t own any significant assets, and you are in a position where you could declare bankruptcy or anywhere near it, this gives you the freedom to disregard the agreement, say whatever you want, and let the Company sue. Normally, they will send a letter before they sue you, and if they do, you can just tell them “Go ahead – I’ll just file bankruptcy!”. If they believe you, they probably won’t sue, because it will just draw more attention to whatever they want to keep quiet; in fact, now that most courts have electronic filing, it will be putting the secrets they wanted to protect out on the internet for all the world to Google. Even if they sue and get a huge judgment against you, you can file bankruptcy for a few thousand dollars, along with whatever credit card debt you happen to have.

Is Anything About These Clauses Good for Employees?

Yes – i) Stay Off Google – If the case was not filed in any Court, the Employee wants to make sure that his/her claim against their Employer is not floating around in cyberspace where it can easily be googled the next time they apply for another job. ii) Neutral Reference – As part of a confidentiality clause, you might also negotiate what we call a “Neutral Reference”, i.e., if asked for a reference, the Company will provide the position held, dates of employment, salary, and say that it is their policy to provide this type of reference and nothing else. iii) The Shakedown Effect – In some cases the Company’s desire to keep certain information from getting out can motivate them to settle the case early on and for more money. If confidentiality agreements were illegal, this leverage would be lost. Management would call this legal extortion, and in some cases, that’s exactly what it is. This is another evil that would be corrected in a perfect world, but is very unlikely to be corrected in the world we actually live in.

How Did Dennis Rodman Make New Confidentiality Clause Law?

On January 15, 1997, while scrambling for the ball in a game against the Minnesota Timberwolves, Rodman fell into a group of photographers on the sidelines. When he got up, he did the only reasonable thing – he kicked one of them in groin. Without even suing, the photographer’s lawyers settled the case for $200,000, with Rodman’s attorney’s insisting upon, and getting, a strict confidentiality clause. Because personal injury settlements are not counted in taxable income[5], the photographer did not show the settlement on his taxes. The IRS came after him and the Tax Court[6] held that because the photographer’s injuries were really minimal and nowhere near worth $200,000, some of the settlement had to be assigned to the confidentiality clause, and taxes had to be paid on that part. Not only did the photographer lose out; Dennis Rodman obviously lost the benefit of his confidentiality clause, because the Tax Court opinion was widely reported after he paid so much money to keep it quiet. (Talk about getting kicked where it hurts!) After the “Dennis Rodman Case”, if you are getting a personal injury settlement with a confidentiality clause like this (most medical malpractice settlements require these), it’s a good idea to make the Confidentiality Clause run both ways, that is, to prevent the Company being sued from talking about the settlement also. Even though the Defendants never tell anybody about settlements anyway, if the IRS ever bothers you about it, you’ll have a good argument that the clause had a value to you, too. For example, if it becomes common knowledge that someone who lives in a Housing Project in the South Bronx is getting $250,000, that can become hazardous to his health. You can always tell your lawyer to have the agreement say that you didn’t want anyone to know that you were getting money just so people wouldn’t hear you were getting a settlement and ask you to borrow money, which is something that happens all the time. Sometimes, ignorance is bliss after all.

[1] Although there might be some protection under state law, depending on where you live.

[2] The New York courts have consistently held that “liquidated damage provisions will not be enforced if it is against public policy to do so and public policy is firmly set against the imposition of penalties or forfeitures for which there is no statutory authority”, see, Truck Rent-A-Center, Inc. v. Puritan Farms 2nd, Inc., (N.Y. 1977); 555 W. John St., LLC v Westbury Jeep Chrysler Dodge, Inc., 149 A.D.3d 796, (2d Dep’t 2017); Clearview Farms LLC v Fannon, 145 A.D.3d 1556, (4th Dep’t 2016).

[3] Cheeks v. Freeport Pancake House, Inc., 796 F.3d 199, (2d Cir.2015).

[4]  Quicken Loans, Inc., Case No. 28-CA-75857 (Jan. 8, 2013). This comes from § 7 of the National Labor Relations Act, which guarantees workplace rights of association and to discuss the conditions of their employment with each other. However, as President Trump continues to appoint management oriented people to the NLRB, its decisions will give employees fewer rights.

[5] 26 U.S.C. § 104(a)(2)

[6] Amos v. Commissioner, U.S. Tax Court No. 13391-01, Dec. 1, 2003.

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