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Civil Litigation

Tuesday, February 14, 2017

For Your Own Sake Don’t Do THIS to Your Employees


Dumb, dumb, dumb case from Idaho, reversed by the Ninth Circuit Court of Appeals.  You can find the case here: http://cdn.ca9.uscourts.gov/datastore/opinions/2017/02/03/14-35396.
Read more . . .


Friday, April 15, 2016

NYC Human Rights Law Strengthened by Amendments to Employment and Public Accommodations


What recent and significant changes have been made to NYC's human rights laws?

Mayor Bill de Blasio has recently signed into law amendments intended to remediate and strengthen the New York City Human Rights Law (NYCHRL), particularly in regard to franchisers, franchisees and lessors. In keeping with the Mayor's stated purpose of improving legislation to protect employees and tenants from having their civil rights violated, he has signed into law amendments designed to:

  • Remove language regarding sexual orientation
  • Give the New York City Human Rights Commission the authority to award attorney fees
  • Add franchiser, franchisee and lessor to the list of those forbidden to discriminate on the basis of gender, race, disability, or any other protected class
  • Make it illegal to deny housing to anyone because he or she is a victim of domestic violence, sex offenses or stalking
  • Make it illegal to use discriminatory advertisements and public statements

It is important for all employers, businesses, and lessors to review their procedures to ensure that they are in compliance with the newly amended NYCHRL. The new legislation requires that "exceptions and exemptions from the NYCHRL be narrowly construed in an effort “to maximize deterrence of discriminatory conduct.”

Another aspect of the amendments to NYCHRL's protections addresses the manner in which discrimination on the basis of sexual orientation should be construed. The new wording states that language of the law should not be construed to:

  • Restrict an employer’s right to require that employees meet certain actual job qualifications
  • Permit employers to inquire about the sexual orientation of their current or potential employees or to adopt affirmative action quotas based on sexual orientation
  • Limit or override any pre-existing exemptions under NYCHRL
  • Legalize any act that violates New York Penal Law
  • Endorse any particular behavior or way of life

In addition, the amendments make it unlawful to "offer benefits, services or privileges" to anyone who is (or is presumed to be) a member of a protected class in such a way that such a person is deprived of the full and equal enjoyment” of those benefits on “equal terms and conditions” as all others who are not members of a protected class.


Read more . . .


Thursday, January 28, 2016

Cross It Off the Bucket List - Caterpillar To Pay $73.6 Million for Stealing Trade Secrets

What are the details of the trade secret lawsuit involving Caterpillar?

In December 2015, the construction equipment maker Caterpillar was ordered by a federal jury to pay $73.6 million for stealing the design of one of its vendors, Miller U.K., Ltd. The vendor had designed a coupling device that links heavy buckets to hydraulic excavation machines and the manufacturing method was deemed to be a trade secret. Caterpillar apparently entered into an agreement to buy the coupling device, but used the design and manufactured the coupling devices instead.

What is a Trade Secret?

A trade secret is confidential information that gives a business a competitive advantage in the marketplace, arising from its manufacturing processes, business practices, formulas, designs or patterns.

The essential elements of trade secret claims include:

  • Information that is generally unknown to the public
  • Information that gives the business an economic advantage over competitors
  • Information the business reasonably attempted to keep confidential
  • Information acquired by a competitor through misconduct

In this case, because Caterpillar had entered into an agreement with Miller, Caterpillar gained access to confidential information about the manufacturing process of the vendors coupling device. The $73.6 million verdict has been reported to be the largest award under the Illinois Trade Secret Act.

One controversial aspect of this case is the growing industry of so-called litigation financing which involved a consulting firm that bankrolled Miller's lawsuit, in return for a percentage of the jury award. Proponents of litigation financing argue that it grants small litigants legal recourse against wealthy defendants.  On the other hand, critics believe that giving investors a stake in the outcome of a case can unduly influence the litigant's decision-making. In any event, Caterpillar intends to appeal the decision.

What can I do if my trade secrets are stolen?

There are a number of ways to protect a trade secret, but even if precautions are taken to keep it confidential, a trade secret can still be stolen. As was the situation in this case, a trade secret can be obtained through breach of confidentiality.  If you believe a trade secret belonging to your business has been stolen, a qualified attorney can file a lawsuit to both obtain monetary damages and obtain an injunction to stop the thief from using the trade secret.


Friday, September 18, 2015

Muslim Flight Attendant Alleges Discrimination by Express Jet

What is "reasonable religious accommodation" and when has an employer violated it?

A female Muslim flight attendant, employed by ExpressJet, Charee Stanley, has been suspended and threatened with termination for refusing to serve alcohol on the job. While serving food and beverages, including alcoholic ones, to passengers is part of the job description of a flight attendant, abstaining from both imbibing and serving alcohol is a tenet of the Muslim faith.

When two years ago, Ms. Stanley, already having been employed by ExpressJet for a year, converted to Islam, she approached her supervisor, requesting that accommodations be made to enable her to maintain her position while adhering to her religious beliefs. The supervisor told her to make arrangements for another attendant to take over the serving of alcoholic beverages, which she did. By all accounts, this arrangement worked well.  Alcoholic beverages were served to those who requested them and Stanley remained comfortable in her work environment.

The peaceful atmosphere changed, however, when, months later, another flight attendant filed a complaint against Stanley, charging that she was not fulfilling her duties by refusing to serve alcohol.  The employee, who has been accused by Stanley and her lawyer of Islamaphobia, also complained that Stanley had a book with "foreign writings" and wore a headdress.

Upon receiving this complaint, the airline sent a letter to Stanley stating that it was rescinding its religious accommodation and placing her on unpaid administrative leave. The airline further advised her that her employment might be terminated after 12 months.

In response to this action, Stanley has recently filed a discrimination complaint with the Equal Employment Opportunity Commission for the revocation of her prior "reasonable religious accommodation."  Stanley's lawyer,  Lena Masri, an attorney with the Michigan chapter of the Council on American-Islamic Relations, has declared that "...no one should have to choose between their career and religion and it's incumbent upon employers to provide a safe environment where employees feel they can practice their religion freely. We are requesting that her employment be reinstated and the accommodation of her religious beliefs be reinstated as well."

According to Stanley and her attorney, the religious accommodation made for Stanley had been made at the explicit direction of the airline itself, had worked smoothly and without incident, and that, therefore, her employment, along with the previous minimal religious accommodations, should be reinstated.

A spokesman for ExpressJet has declined to discuss Stanley's complaint on the grounds that the airline cannot discuss "personnel matters," stating only that ExpressJet has a "long history of diversity in the workplace."

If you are faced with discrimination or other problematic employment issues, please contact one of our highly skilled attorneys at Thomas M. Lancia. Dedicated to serving clients throughout the New York City area on civil litigation and small business matters, we can be reached at 212.964.3157.


Monday, June 29, 2015

I've won! Can we please continue to litigate this case?

Uh . . . probably not.  Today's case is a recent trial court decision in Suffolk County. 

Tamai was employed by SAA as an anesthesiologist in Suffolk County.  Her contract with SAA had a restrictive covenant prohibiting her from holding medical staff privileges at four hospitals, including St. Charles and Mather Hospitals, for three years after leaving SAA.  She decided to leave SAA and accept a position at LIAP, which provided anesthesiology services at St. Charles and Mather.

SAA sent a letter to Tamai and LIAP, threatening legal action if she violated the restrictive covenant.  Tamai sued for declaratory, injunctive and other relief on February 25, 2015, after LIAP withdrew its offer of employment. She also moved for a temporary restraining order, which was granted in part, and a preliminary injunction, which was set down for a hearing on June 8, 2015. SAA cross moved for summary judgment dismissing the complaint. In a letter dated April 14, 2015, Tamai informed the Court that she had found other employment that did not require her to maintain medical staff privileges at any of the four hospitals named in the restrictive covenant. She also advised the court that she was seeking leave to discontinue this case against SAA without prejudice. SAA objected to discontinuing the case and argued that any discontinuance should be with prejudice. Tamai then moved to discontinue the action without prejudice.

The Court held that the case would be discontinued without prejudice because: (1) the case was mooted after Tamai obtained a job that didn't violate the restrictive covenant; 2) the action had not progressed far enough to prejudice defendant in any way.  The Court reasoned that even though this controversy was capable of repetition in the next three years or so, there was no novel legal question presented because it is well-settled that such restrictive covenants for anesthesiologists are subject to the same analysis of reasonableness in duration, location and so on as those for other professionals. 

In dictum, the Court discussed SAA's motive for seeking to continue the case.  It speculated that the motive was to seek a ruling affirming the viability of the restrictive covenant and then using that as a sword against Tamai and other employees in the future should the need arise.  Going slightly further, I suspect that a favorable decision would also be used as a "moat" to prevent or discourage valuable anesthesiologists from leaving the employer's "castle" for higher pay, better benefits, etc.  In any event, the Court declined to gild SAA's victory by bestowing the gift of an advisory opinion it did not need to write.

http://www.nycourts.gov/reporter/3dseries/2015/2015_50885.htm

 


Monday, June 22, 2015

Transgender Plaintiff's Case Revived by Second Circuit Court of Appeals

Cole Fowlkes, who self‐identifies as male but was born biologically female, alleged in his complaint that his labor union and two of its business agents discriminated against him on the basis of sex and retaliated against him for filing an earlier action against them.   The District Court held that Fowlkes’ failure to exhaust administrative remedies deprived the District Court of subject matter jurisdiction over his Title VII claims. The District Court thus also dismissed Fowlkes’ state‐ and city‐law claims for lack of jurisdiction.

 

The Second Circuit held that the administrative exhaustion requirement of Title VII is not jurisdictional but rather a precondition to suit and is subject to equitable defenses. In this case, at least two equitable defenses were raised on appeal: (1) whether the EEOC filing would be “futile” and (2) whether the claim was “reasonably related” to a prior EEOC claim Fowlkes had made on similar grounds. 

 

The Court vacated the District Court’s judgment dismissing Fowlkes’ federal claims for lack of jurisdiction and remanded the case to the District Court to determine whether any equitable defenses excuse Fowlkes’ failure to exhaust his administrative remedies. The District Court was also directed to entertain Fowlkes’ claim under the National Labor Relations Act, 29 U.S.C § 151, et seq., for breach of the duty of fair representation.  The decision can be found at http://law.justia.com/cases/federal/appellate-courts/ca2/12-336/12-336-2015-06-19.html.

 

In fairness to the District Court, because the plaintiff appeared pro se, the District Court was deprived of the assistance of counsel where the equitable defenses and the fair representation claim may have been raised, forcing the District Court into the difficult role of divining that on its own.

 

As the Second Circuit pointed out, whether an EEOC filing was a “precondition” rather than a jurisdictional requirement has not always been clearly articulated.  Whether this ruling now excuses such filings in a broader context remains to be seen.

 


Monday, May 11, 2015

In Workplace Harassment Lawsuit, Employee Sues Over Mockery of His Catholicism

Can an employee sue an employer for discrimination or harassment for denigrating his religion and ethnic background?

Workplace harassment takes many forms.  Workers are sometimes mistreated or discriminated against because of their sexual orientation or ethnic or racial background.  In the case of victim Joseph Modica, the reason involved religion.

His employer, Steven Rosen, allegedly ridiculed him relentlessly for his Catholic beliefs.  Rosen is a former employee of Jordan Belfort, the "Wolf of Wall Street" depicted in a Martin Scorcese film.

The 42-page lawsuit filed in a Manhattan court demands $5 million in damages for the endless abuse Rosen heaped upon Modica for his religious views, as well as his Italian-American heritage.

Rosen allegedly asked Modica if he really believed Jesus was born to a virgin, suggesting that if he did believe it, he was "a moron.”  Rosen also mocked the resurrection as scientifically impossible.  He asked Modica not to wear ashes on his forehead at work on Ash Wednesday.  Modica say Rosen frequently referred to him using ethnic and racial slurs.

The abuse increased after Modica went to the emergency room with a possible heart attack.  Rosen made insensitive comments to Modica about his lifestyle and upbringing.  Holidays were an especially difficult time, as Modica was dragged into conversations in which he was baited and forced to defend his religion.  Some of Rosen's slurs allegedly also impugned Modica's integrity, unfairly implying he was a crook.

According to the lawsuit, the abusive workplace conditions spanned a four-year period, from the beginning of 2010 to mid-2014.

If you have been the victim of behavior you feel is unacceptable - insults, harassment, denigration of your race, ethnicity, sexual orientation, or disability - you may be able to sue your employer for damages. Thomas M. Lancia is an experienced trial lawyer who has handled all types of labor and employment law claims and other litigation.  He is admitted to practice in both New York and New Jersey.  For an evaluation of your claim, contact the law firm of Thomas M. Lancia PLLC today at (212)964-3157.


Friday, April 24, 2015

Jury Verdict In "Blurred Lines" Controversy Finds Copyright Infringement

What do courts consider when determining whether a song infringes on another's copyright?

In a highly-publicized copyright infringement lawsuit, family members of legendary singer Marvin Gaye contended that pop icons Robin Thicke and Pharrell Williams unlawfully encroached on the unique sounds of Mr. Gaye’s hit 1977 song "Got to Give it Up" with their Summer 2013 mega-hit "Blurred Lines."

Eight jurors have now agreed and rendered a verdict of $7.4 million in favor of the Gaye family. According to accounting statements entered into evidence during the trial, "Blurred Lines" earned approximately $16 million. Rapper T.I., who was also named in the suit, was not found liable in the matter since his lyrical contribution to the song was considered in no way related or similar to Gaye's song.

When it comes to copyright laws, those holding the rights also hold the opportunity to defend against any subsequent content or creation that comes close to the protected version. The issue lies, however, in determining how similar a creation must be in order to infringe the copyright – as freedom of speech also comes into play to protect against overly broad or vague copyrights.

When discerning between a similar sound and a true infringement, courts are required to decide if the challenged piece contains “substantial similarity” to the original. Of course, this inquiry involves some level of subjective analysis; what sounds identical to one may sound completely distinguishable to another. Plagiarized music need not be identical to its source, but court opinions have hinged on some of the following issues: 
* Whether chords and notes used are identical
* Using the same title
* Whether lyrics are identical or near-identical
* Whether the copied version contains only a very minor change (e.g., altering the baseline).

For some juries, making a decision on this issue can be extremely difficult. In one famous copyright infringement case between Eagles front man John Fogarty and 1970s icons Creedence Clearwater Revival, the jury actually requested John Fogarty appear in the courtroom to perform the alleged copyrighted song – and determined it sounded similar, not identical.

The attorneys at Thomas M. Lancia PLLC have experience with copyright infringement litigation and will zealously represent your interests. Contact us today at (212)964-3157.


Tuesday, April 7, 2015

Successful Defense of Growing Startup that Provides Meals to Schoolchildren

Here is the appellate decision in recent case we successfully defended on behalf of a startup and its principal. The growing company, Red Rabbit, provides healthy meals for schoolchildren. The Appellate Division unanimously affirmed the lower court decision, dismissing all remaining claims for fraud and breach of fiduciary duty because the non-disclosed information was not material to, or relied upon in, the transaction.

Brummer v Red Rabbit, LLC
2015 NY Slip Op 02912
Decided on April 7, 2015
Appellate Division, First Department
 

Friedman, J.P., Acosta, Moskowitz, Richter, Kapnick, JJ.

14731 652565/12

[*1] John Brummer, Plaintiff-Appellant-Respondent,

v

Red Rabbit, LLC, et al., Defendants-Respondents-Appellants.

Order, Supreme Court, New York County (O. Peter Sherwood, J.), entered on or about July 28, 2014, which granted defendants' motion for summary judgment dismissing the complaint and plaintiff's cross motion for summary judgment dismissing the counterclaim, unanimously affirmed, without costs.

The complaint alleges that defendant Rhys Powell was a patient of plaintiff John Brummer, a podiatrist. In 2005, Powell formed defendant Red Rabbit, LLC to provide healthy lunches to New York City preschools. Powell used his own funds and those of other investors, including a total of $25,000 from Brummer at the inception of the business, giving Brummer a 7% interest.

In the summer of 2010, Powell approached Brummer and offered him $40,000 for 6% of the company (leaving Brummer with 1%), but without disclosing that he had been in negotiations for a large investment in Red Rabbit by two investors. Powell allegedly based his valuation of Brummer's interest on a percentage of Red Rabbit's average income for the past year and the next year as projected, and, in September 2010, Brummer accepted the $40,000.

The evidence of plaintiff's long-held desire to sell back his interest in defendant Red Rabbit, LLC demonstrates that the alleged false representations regarding the company's value and alleged concealment of impending investments from additional investors were neither relied upon nor material to plaintiff's decision to sell. Accordingly, dismissal of both the fraud and breach of fiduciary duty claims was warranted (see generally Lama Holding Co. v Smith Barney Inc., 88 NY2d 413, 421 [1996]).

Absent an allegation of actual loss by plaintiff, his unjust enrichment claim is also deficient (see Edelman v Starwood Capital Group, LLC, 70 AD3d 246, 250-251 [1st Dept 2009], lv denied 14 NY3d 706 [2010]).

The counterclaim failed to allege the breach of any duty found in defendant Red Rabbit's operating agreement.

Accordingly, it was properly dismissed.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 7, 2015

CLERK


Wednesday, February 18, 2015

Pawn Shops Settle EEOC Harassment Lawsuit

What are my rights at work when my boss harasses me?

Seapod Pawnbrokers will pay $300,000 as part of a settlement with the United States Equal Employment Opportunity Commission (EEOC). Operating stores in Brooklyn and Queens, the company was charged with harassing and retaliating against its Hispanic female employees.

Seapod's former owner and manager was accused of harassing workers based on their sex, race and ethnicity and firing them if they complained. These violations of federal law were the subject of an EEOC lawsuit. The pawn shop owner allegedly referred to his mostly Hispanic female employees as his "Seapod bitches" and his "whipping slaves." He also allegedly sexually harassed the women and fired some of them when they resisted or complained.

The EEOC filed suit after trying unsuccessfully to settle the case. A four-year consent decree resolved the case on various terms, including the EEOC monitoring Seapod's employment practices throughout the four years.

Monetary damages in the amount of $300,000 will be paid to the victims. The owner is forbidden from having any association with the company and cannot enter its stores or contact its employees. Going forward, Seapod must revise its policies for complaints and investigation and inform its employees about the changes. Seapod is also required to provide all employees annual anti-harassment and anti-retaliation training.

The EEOC has a Strategic Enforcement Plan identifying six national priorities that include preventing harassment in the workplace and protecting vulnerable workers. The agency is responsible for enforcing federal laws against employment discrimination.

If you have experienced employment discrimination or wrongful termination, Thomas M. Lancia PLLC can help. He has been zealously advocating for clients in New York, New York, for more than 20 years. Call him today at (212)964-3157 for a consultation.


Tuesday, February 17, 2015

F.R.C.P. 68 - Offers of Judgment and Attorneys' Fees

While acting as Plaintiff’s counsel, our firm has recently received a flurry of offers of judgment from competent defense counsel in federal cases.  Why?  I thought I would answer this question and provide a handy chart for employment, copyright and a few other types of cases we handle as plaintiff’s counsel.

A party defending a claim may make an Offer of Judgment under Rule 68 of the Federal Rules of Civil Procedure (the “Offer”), specifying the terms and amount of the Offer.  Rule 68’s language means Defendant is typically the party making the offer and the Plaintiff is usually the party that accepts or rejects it. When the Defendant makes the Offer, the trial court has no discretion to decide whether or not to enter it if it is accepted by Plaintiff.  But if the Offer is rejected, and Plaintiff ultimately prevails but receives a damages award lower than the Offer, Plaintiff’s counsel may not receive statutory attorneys’ fees.  That may ultimately make the Offer more attractive, precisely the effect desired by defense counsel when making the Offer.

            The relevant portion of Rule 68 reads “If the judgment that the offeree finally obtains is not more favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made.”  Fed. R. Civ. P. 68(d).   Clever defense counsel try to craft the Offer to be just high enough to entice an acceptance but still low enough to be a good result for their client.  Counsel must be sure to indicate that costs are included in the total amount of the Offer, or else defendant may be responsible for the plaintiff’s costs after the date of the Offer, even if the plaintiff’s recovery is less than the amount in the Offer, .

In recent cases our firm has handled, many practitioners have argued that a Rule 68 Offer of Judgment unequivocally cuts off attorneys’ fees in all cases.  That’s often true, but not always true.  As a general rule, attorneys’ fees are cut off as of the date of an Offer ONLY IF the statute governing the underlying claim defines attorneys'  fees as part of costs.  If the statute does not include attorneys’ fees as a part of costs, the party making the Offer may still be liable for paying the Plaintiff’s attorneys’ fees even if the amount recovered is less than the amount offered. 

As always, start with the statute.

Statute

Are fees defined as part of costs?

Copyright Act

Yes

Lanham Act

Unclear; Attorney fees may only be awarded in “exceptional cases”

§ 1983

Yes

Americans with Disabilities Act

Yes

Fair Labor Standards Act

No

Title VII

Yes

§ 1988

Yes

ERISA

No

FMLA

No


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