Unlike Texas, some states still have a viable worker’s compensation system that produces valuable benefits for workers. One such state is California. So, as we might expect, the worker’s compensation docket is much more competitive than here in Texas. One defense firm sought an extra edge. It allegedly hacked into online stored legal files for worker’s compensation claimants. At a hearing in California, the defense firm pulled out the intake packet for one claimant, Hector Casillas. The packet included the retainer agreement the claimant signed with his lawyer. The defense lawyer was asked by the judge how he obtained the packet. The defense lawyer offered a various explanations and then finally said he did not know.

Hector Casillas and the law firm has now filed a class action lawsuit accusing the defense firm, Knox Ricksen, four attorneys, a claims service company, and two insurance company employees of unlawfully hacking into attorney-client files. See ABA Bar Journal report. In a separate lawsuit, the same law firm, Reyes and Barsoum, filed suit in Los Angeles alleging the same defense firm obtained more than 30,000 files when it hacked into files stored with HQ Sign-up Services, Inc. Reyes and Barsoum used HQ Sign-up to store confidential files.

Wow. That is taking “zealous” advocacy way too far….

Well, it is not surprising. Donald Trump has been friends with Roger Ailes for many years. Mr. Trump spoke in defense of Mr. Ailes, recently, noting that the women who complained about the Fox News CEO, were helped by him. See USA Today news report.

Don’t you know they meet now and then at the local watering hole,  sit in the corner, and rate the women on a scale of one to ten and tell blonde jokes….

Roger Ailes has been forced out as CEO of Fox News. He submitted his resignation after Rupert Murdoch offered him millions of dollars to retire. I wrote about the sex harassment allegations against him here.

He will continue for some period of time as advisor to Mr. Murdocch. When Megan Kelly added herself to the growing list of women claiming they had been sexually harassed by Mr. Ailes, that was apparently the final nail in the coffin. See CBS News report.

Sheriff Joe Arpaio, who claims to be the toughest sheriff in America, has received the first step in the contempt process of federal court. The court found him in contempt last year. See my prior post about Sheriff Joe here. Judge Snow in Maricopa County, or Phoenix, Arizona, has ordered a re-organization of the internal affairs department at the Sheriff’s office. The Sheriff’s office has already been found in civil contempt. Civil contempt simply means jail time is not an option.

It seems that someone in the internal affairs department kept a set of video tapes showing racial profiling in some traffic stops. Those tapes were expected to be used at trial. But, suddenly, they went missing. Ok.  . .  no one said Sheriff Arpaio is subtle. Of course, hiring a private investigator to investigate Judge Snow’s wife was not subtle other.

Still unresolved is the possibility that the Sheriff and his top aide, Jerry Sheridan, will be found in criminal contempt. They did violate the Judge’s orders. Criminal contempt would involve fines or jail time. See CBS news report.

According to the report, the citizens of Phoenix will have to pay another $13 million over the next year to pay for this case. They have already paid $41 million. All this just so Sheriff Joe can profile Hispanics.

In many lawsuits, the two opposing parties eventually turn to mediation or talks about settlement. Not every case settles at mediation, but many do. Typically at mediation, if the parties reach a verbal agreement, they then reduce that verbal agreement to a very brief written agreement. The mediator will usually have on hand a generic, one-size-fits-all agreement. The idea is that the parties will then negotiate a more detailed written agreement in the next few days. But, what happens if there are new provisions in the more detailed agreement? That is often the case, since attorneys for both sides typically are accustomed to fairly mundane clauses that may cause concern to a person new to the process. Most, if not all, plaintiffs are new to the process. For example, all settlement agreements in employment cases involve a confidentiality clause. But, the generic, two page settlement agreement used by most mediators does not include a confidentiality clause. When the plaintiff signs that brief agreement, there is no confidentiality clause. What happens if a plaintiff sees new clauses as some form of subterfuge?

Trust in your lawyer is key at times like that. Many plaintiffs have no real understanding of these “legalese” clauses. They are asked to learn too much too fast. It can be overwhelming. Many plaintiffs’ first reaction is to run away. Buying a car is similar. The car salesman is so friendly and smiling. Until the big moment. It is time to sign. He tries to rush you through it. You know you need to read those papers. But, that car is so shiny and pretty. Why wait?

But, a settlement is different. You had to compromise. You had to accept $20,000 when you were convinced your case was worth half a million. That car just ain’t so pretty at moments like that.

In Sanders v. UNUM Life Ins. Co. of America, No. SA-15.CV-310-DAE (W.D. Tex. 2/5/2016), the plaintiff appears to have had a similar reaction. She went to mediation over an ERISA claim. The plaintiff had received disability benefits and was then cut off. She filed suit. The life insurance company counter-sued saying Mrs. Sanders had received $35,000 in benefits that she should not have received. UNUM wanted that $35,000 back. It was a major lawsuit. The parties reached an agreement at mediation on Nov. 5, 2015. They signed the short mediator’s agreement. But, when they started working on the more detailed settlement agreement, Mrs. Sanders balked. She met with her lawyer for over two hours. They exchanged emails. They spoke on the phone. According to the plaintiff’s lawyer, the plaintiff raised new concerns that she had not previousl;y raised. The plaintiff’s hesitation and discussions extended over two months.

The discussions between a lawyer and client are privileged. So, we do not know what specific new concerns were raised by the plaintiff. If the new concerns were based on new clauses added by the insurance company, then her new concerns might have some justification. But, that appears to not be the case. Because the plaintiff’s lawyer asked to withdraw. After two months of negotiating, the insurance company said it would file suit to enforce the brief mediator’s settlement agreement. The plaintiff had signed that brief agreement on Nov. 5.  Now, in late January, 2016, the insurance company had already agreed to make some changes to the settlement agreement to satisfy Mrs. Sanders. But, she apparently was still raising new issues. So, they threatened to file a motion to enforce the brief settlement agreement.

At this point, the plaintiff’s lawyer must decide whether she can legitimately oppose a motion to enforce. If there are no grounds to oppose the motion to enforce the brief settlement agreement, then she must withdraw from the case. Otherwise, the plaintiff’s lawyer risks being sanctioned by the court. A frivolous breach of the brief settlement agreement is a breach of contract. If a person lacks good grounds for doing so, both the party and the lawyer risk being sanctioned. This is federal court, after all.  So, Mrs. Sanders’ lawyer asked to withdraw. The court granted the motion to withdraw.

Moral of the story is trust your lawyer. If you do not trust your lawyer, you need a new one. Second moral is to be careful when you agree to settlement. Once you sign that piece of paper, no matter how brief and simple it is, you are bound. Third moral is that buyer’s remorse is as common in settling cases as when buying a shiny, new car. Understand it and be ready for some buyer’s remorse the day after.

Yes, some employers will take advantage of employees. My friend, Chris McKinney, discusses one such case of a worker for Buc-ees. You know the place with the friendly, smiling beaver? Kelly Rieves was hired by Buc-ees as an assistant store manger in Cypress, Texas. They had her sign a contract which included a clause for “retention pay.” Retention pay is usually used for senior executives. But, Buc-ees imposed it on this assistant store manager. A portion of her pay, about one-third, was designated as retention pay. If she left before 48 months, she would agree to return that retention pay. She did in fact leave after three years. She tried to work out an agreement with her boss before she left. But, he would not discuss it.

The contract provided that she could be fired at anytime. Yet, the retention pay clause remained.

After she left, Buc-ees sued her. The friendly beaver sued her for the amount of retention pay, or $67,000. She lost the lawsuit. The court also awarded attorney’s fees and interest. Now, she owes $100,000. The matter is on appeal. See Chris’ blog post here.

I do not know the specifics of Ms. Rieves’ case. But, many workers who are sued for non-compete clauses often ignore the lawsuit. They hope the suit will go away. But, unfortunately, these lawsuits by prior employers do not just go away. Retention pay clauses might make sense for senior executives who have some bargaining leverage. But, seriously, for an assistant store manger, this is a case of an employer taking advantage of its superior bargaining position.

Implicit bias is a concept acquiring some attention. The theory is that as human we have subconscious biases. I have written about the theory before. See my prior post here. The U.S. Supreme Court recognized the theory in Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc., 135 S.Ct. 2517 (2015). The theory is we tend to filter out certain information based on subconscious biases.

The San Antonio Police Department apparently sees some value in the theory. They have asked Dr. Lorie Fridell, an expert on law enforcement and biases to provide the local law enforcement agency with training on how to deal with biases. In this day of police shootings, one has to consider the possibility that bias may play some role. Too many African-Americans and other minorities have reported being stopped by law enforcement for little or no reason.

The police union opposes the training, saying it starts from the standpoint of racial bias and that officers do not know what they are doing. See San Antonio Express News column by Brian Chasnoff. No, at least, not as I understand the concept. What implicit bias starts with is the standpoint that we are human, with human weaknesses.

So, now Roger Ailes has invoked an arbitration clause in the lawsuit filed by Gretchen Carlson. I previously wrote about her lawsuit here. Of course, he would invoke arbitration. See Washington Post report. In arbitration, he can keep these unseemly allegations out of the press. Arbitration is private. Already, other women have come forward saying they too were propositioned by Mr. Ailes.

His lawyer filed a removal action, asking the case to be removed from New Jersey state court to New jersey federal court. He could just as easily have invoked arbitration in state court. But, probably because he expects a friendlier forum to arbitration, he first removed it to federal court. Ms. Carlson’s lawyers apparently anticipated this tactic. In the lawsuit, they named Roger Ailes, not Fox News as defendant. Although, in describing Mr. Ailes, they had to mention that he was and still is the CEO of Fox News. The agreement that includes the arbitration clause was between Gretchen Carlson and Fox News. In theory, the arbitration clause would only apply to Fox News, not to Roger Ailes. But, does the arbitration clause apply to the CEO of Fox News? That is what a judge will have to decide. Mr. Ailes’ lawyers apparently believe the federal judge will be more disposed to find the agreement also applies to the CEO of Fox News.

I cannot speak to New Jersey state law, or New York’s, but in most states, contract rules are interpreted strictly. It will be interesting if the employer can stretch “Fox News” big enough to include the CEO of Fox News.

Coach Briles has been sued along with Baylor University. Various female plaintiffs allege the school did not protect them from sexual assaults. The lawsuit is based on Title IX which requires equal facilities for female students.  This week, Coach Briles filed a motion asking to be dismissed from the lawsuit. Among the reasons why he argues he should be dismissed are:

  • that the time limit for filing a Title IX lawsuit has passed. One of the plaintiffs was attacked by a football player in 2012, but suit was not filed until 2016;
  • under Title IX, a person cannot be sued in his own personal capacity;
  • Claims that Coach Briles was warned that a player was a sexual predator are based on hearsay;
  • under Texas law, a person cannot be held liable for the criminal acts of another. A person is not required to protect another person from criminal acts.

Legally, these may be good reasons for one defendant to be dismissed from a lawsuit. The time limit issue is problematic for the plaintiffs. But, we do not know the names of the other plaintiffs. We do not know if they have more timely claims against Baylor and Coach Briles. See San Antonio Express News report.

But, in the court of public opinion, Coach Briles will lose when he claims he had no responsibility to protect female students from sexual predators on his football team. Right or wrong, we expect a football coach at a major public university to have a good bit of control over his players. And, every female student who has ever attended a U.S. university came with some minimal expectation that no coach would knowingly allow a football player to prey on female students. In filing motions like that, one expects that Coach Briles does not intend to seek future jobs as a coach. Who would hire a coach who claims publicly that he has no duty to protect some students from his players?

Gretchen Carlson has filed suit against Fox News and Roger Ailes for sex discrimination. Ms. Carlson was Miss America in 1989 and is attractive. In her lawsuit, she accuses Mr. Ailes of ogling her, repeatedly commenting about her legs, and once told her she was sexy but “too much hard work.” Nine months ago, he told her she should have had a sexual relationship with him long ago. Things would have been better for her, he assured, if she had. Mr. Ailes is 76 years old. Ms. Carlson is 50.

As the suit points out, Ms. Carlson anchored her own show until a few weeks ago. She was demoted three years ago from a position as host of the morning show when she complained about sexual harassment. She had apparently complained about one of her co-workers, Steve Doocy, who, she said, condescended toward her and treated her in a sexist way. She should, said Mr. Ailes at the time, learn to get along with “the boys.” Mr. Ailes also accused her at the time of being a “man hater.” See CBS news report. I bet Fox’ lawyer really cringes over that last statement.

An employer should not say things like that. The chief executive officer should not bring sex or gender into a discussion when someone complains about sex harassment. That should be a basic principle for avoiding lawsuits. Sex harassment is subjective. It is hard to show. Mr. Ailes gained nothing by making comments suggesting she was not “one of the boys.” If Fox did not then conduct some sort of investigation about her complaints, it will start out in this lawsuit with a deficit. Sex harassment is hard to prove. Retaliation is much easier. At least so far, Ms. Carlson’s case looks pretty good.