In yet another marathon hearing in the New York AG civil lawsuit, Judge Engoron gave Donald Trump a second chance to file an Answer that reflects reality. I talked about his Answer here in which he contradicted previous testimony in other lawsuits.

The judge denied the New York Attorney General’s request for sanctions and ordered Donald Trump to submit a new Answer to the lawsuit. See Daily Beast report here. Mr. Trump can re-do his Answer. But, in any lawsuit, lies do not just go away. I expect the original Answer and statement provided by Mr. Trump – 300 pages long – with many half-truths and lies will re-appear during the course of litigation.

One thing you do not do in court is lie to the judge. Telling a fib in a deposition is tantamount to lying to the Judge. Swearing to a falsehood in a statement is a lie in any court. Any party litigant must write this rule on his/her forehead: do not lie in any court aper or proceeding. Yet, it appears Mr. Trump has done exactly that.

In a civil lawsuit filed by the New York state Attorney General, Mr. Trump said under oath that he was not President of Trump Organization during his four years as President of the United States. Yet, in a separate, recent lawsuit filed by protesters who claimed Trump’s security guards assaulted them, Trump said he was an inactive president of Trump Organization and now he is active again.

Never was President of Trump Organization

But, in an Answer filed in the New York AG lawsuit, Trump said the opposite, that he denied the allegation that he was ever the inactive president of Trump Organization. Indeed, in that Answer, Trump’s attorney, Alina Habba claimed there was no such entity as Trump Organization. Which makes no sense. Donald Trump verified his statement, meaning he signed under oath before a Notary that it was true and correct. Yet, just last November, Ms. Habba announced herself to the same New York Court as a representative of Trump Organization and Donald Trump.

The New York AG, Letitia James, has filed a motion seeking sanctions for these incredibly inconsistent representations. The judge, Arthur Engoron, has already threatened to sanction the entire Trump family in that same lawsuit. And, just last week, Ms. Habba was sanctioned along with Mr. Trump by a Florida Federal judge.

It is Litigation 101 that you never lie in court or in writing. Do not lie, at all. But, if you do, do not do it in writing or in a deposition. Mr. Trump has clearly disregarded the advice of his lawyers, once again. See Daily Beast report here for more information.

There is a reason why persons do not routinely – or ever – file weak lawsuits. First, a reputation for weak lawsuits will follow you from court to court. Second, the judge will get annoyed and sanction you. Judge Middlebrooks of the Southern District of Florida has done all the above. Former Pres. Trump filed the weakest of some dozen frivolous lawsuits in 2021 against his political rivals. The defendants in that suit included everyone from Hillary Clinton to dozens of FBI and Justice Department officials. The lawsuit addressed a hodgepodge of political actions and decision by DOJ officials over the prior several years.

Judge Middlebrooks sanctioned Donald Trump, his lawyer, Alina Habba and her law firm $937,989. The court found the lawsuit was filed for political purposes and it served no apparent legal purpose. Said the court:

“This case should never have been brought. Its inadequacy as a legal claim was evident from the start. No reasonable lawyer would have filed it. Intended for a political purpose, none of the counts of the amended complaint stated a cognizable legal claim.”

That is as complete a rebuke as a judge can issue. The Judge found the lawsuit deficient in some very fundamental respects:

  • That the statute of limitations should be tolled because Trump was busy as president. The former president, said the Judge, still found time for many other personal lawsuits.
  • The defendants were liable for malicious prosecution, even though there never was any actual prosecution.
  • There was personal jurisdiction in Florida over defendants who resided elsewhere, because the defendants knew Florida is a very important state. (For pete’s sake, this claim exceeds any prior definition of silly).
  • The defendants were liable under a trade secrets claim, even though there were no actual trade secrets.
  • The defendants were liable for obstruction of justice, even though there was no actual official proceeding to be obstructed.

These are ludicrous legal claims. The lawyer absolutely knew they were silly when she filed this ridiculous lawsuit. Any judge would find the suit offensive, because most judges are already overwhelmed with a glut of criminal and civil lawsuits in Federal courts.

Categorically Absurd

The Judge mentioned that Habba and Trump repeatedly mis-characterized the Mueller investigation report. He described as “categorically absurd” the claim that Hillary Clinton and James Comey conspired to seek an investigation into Trump

The Court noted that this lawsuit represented a playbook often used by Trump in which he files a lawsuit with boasting, political rhetoric carried over from his political rallies, personal attacks on political opponents and media, and disregard for legal principles. See ABA Bar Journal for more information here.

In all employment lawsuits, the employer will move for summary judgment or seek dismissal of the case. Even when the facts are very strong, the employer wants to “take a swing” at summary judgment. It should be obvious that the employee must then point to specific facts which show that a trial is necessary. Summary judgment is not supposed to involve weighing the evidence. It is supposed to address the question whether there are sufficient minimal facts to justify having a trial. So, what happens if the plaintiff’s lawyer responds to the summary judgment motion not with actual evidence, but instead relies only on the Complaint? In such instances, the plaintiff will lose. That is what happened in Webb v. City of Huntsville, No. 17-CV-03829 (S.D. Tex. 8/10/2020). In this case, Kimberly Webb sued the City of Huntsville, saying she was fired after she complained about sexual harassment and sexual assault by her supervisor.

Why would the employee’s attorney rely solely on the Complaint? The Complaint is nothing more than a list of allegations. It is not supported by any witness or piece of evidence. Why would the plaintiff’s attorney overlook this very critical response? We will see.

New Evidence

The plaintiff lost. The judge initially granted the motion for summary judgment. Later, the employee obtained new counsel. The new plaintiff’s lawyer submitted a motion asking for reconsideration. He claimed the employee had located new evidence. In the motion for reconsideration, the plaintiff, Ms. Webb, showed that her former law firm had changed attorneys three times within five months. She had kept up to date with the lawsuit. She prompted the attorney when the response to the motion for summary judgment was due. She  even provided an outline of evidence to use in the response. The court noted Plaintiff’s proactive assistance to her attorney. The court found this was sufficient to show the attorney may have erred, but the client did her part.

Regarding the “new evidence,” the judge rightly noted that the new testimony was not actually new. The witness was available prior to the motion for summary judgment. But, the old attorney simply failed to depose that witness. The judge did, however, allow the new attorney to submit an amended response to Defendant’s motion for summary judgment. But, the Judge did not allow discovery, which meant the plaintiff could not depose the helpful witness.

So, in the end, after many months, the Court granted summary judgment. The evidence was still the same, but now, at least the plaintiff’s attorney was able to craft an actual argument based on the limited evidence available. And, it is critical to our system of justice that every person feel s/he had their day in court. Ours is an adversarial system of justice. If one adversary fails, then the entire system fails.

I previously talked here about Rudy Giuliani appearing in federal court and being woefully unprepared. He gave some really silly answers to serious questions court about his lawsuit. That should have been an embarrassing performance for an experienced litigator.

Now, a three lawyer committee has found that he violated one or more ethical rules in that Pennsylvania lawsuit. Mr. Giuliani appeared in a Pennsylvania federal court in 2020 arguing 1.5 million votes had been illegally counted. He offered no evidence then or now for his allegations. He signed the complaint for that lawsuit. For several days in December, 2022, a three lawyer committee in Washington, D.C. listened to witnesses regarding Mr. Giuliani’s ethics in that lawsuit.

In a lengthy bar association trial, Giuliani again aclaimed there was election fraud in Pennsylvania. And, again, he failed to offer evidence in support of his allegations. In fact, during much of his testimony, he rambled on and on. The presiding lawyer had to advise him more than once to answer the question. His only defense appeared to be that he was rushed when he was driving to the hearing in court. But, as he surely knows, that is no defense to not being prepared for any court appearance. And, for lack of evidence regarding major allegations in a high profile lawsuit? See Politico news report here.

The committee was very likely composed of volunteer attorneys. These sorts of committees are always manned by volunteer members of the bar association. Mr. Giuliani may claim prejudice of some sort, but it is hard to argue that volunteer members of ethic committees are particularly prejudiced one way or the other. Any punishment will be decided later. For most first-time violations, lawyers typically see a letter of warning or possibly probation. But, for such a large sort of violation, who knows what the committee will impose.

A little known provision in the National Labor Relations Act  provides protection to employees when they discuss “terms and conditions” of employment.  The discussion must be between two or more employees.  The purpose of this provision (remember, the NLRA was passed in 1935) was to protect employees who may be forming a union.  But, for workers today, it means you can discuss issues in the workplace, so long as the discussions concern problems at work.  So, for example, several years ago, there was a case where female employees discussed possible sex harassment at work.  The court found that was protected conduct.  They should not have been disciplined for those discussions.

So, what does “terms and conditions” mean?  What topics will be protected discussion?  In general, the topic needs to apply to more than one employee.  But, if you are not sure, contact theNational Labor Relations Board.  The NLRB enforces the NLRA.

We can disagree with the findings of some judges. But, the Trump appointed judges do seem to favor hyperbole. I wrote about a Fifth Circuit decision in which three Trump appointed judges argued that funding one federal agency through a second federal agency amounted to “despotism.” See that prior post here. Now, another Trump appointed judge in the Ninth Circuit (California) has also tried to make his point via hyperbole. The appeal in Golkar v. City of San Diego, No. 21-55046 (9th Cir. 10/26/2022), concerned San Diego police officers who would mark the tires with chalk, to enforce parking time limits. Two plaintiffs filed a class action arguing that chalking their tires violated the Fourth Amendment prohibition on search and seizure without a warrant. The car owners, they argued, did not give the police permission to mark their tires.

On appeal, the majority opinion found the chalk was a de minimis effect which did not infringe upon personal liberty. But, Judge Bumatay, appointed by Pres. Trump, dissented. He believed the chalk violated the framer’s intent. Looking back at American Revolutionary history, he compared chalking tires to  the “Crown officials’ abuse of investigative tools’ that ‘helped spark the American Revolution.” The majority opinion viewed this dissent as “analysis by hyperbole.” See the ABA Bar Journal report here. I do not think Sam Adams or Thomas Jefferson were appalled by British soldiers marking houses or carriages with chalk in 1776.

 

Nine years after the death of Cameron Redus, his family settled their lawsuit against University of the Incarnate Word. I previously wrote about that lawsuit here and here. UIW embarked upon a creative defense in which it argued that its police force was an arm of the state government, and therefore, immune from suit. It was a dubious defense. UIW is a private university and always has ben. Yet, that defense had enough legs to drag the suit out for years while the appeals were considered. The suit was filed in 2014.

Trial had been set for Sept. 19, 2022. That trial setting likely led to more serious sorts of negotiations. See San Antonio Express News report for more information.

There are folks with disabilities who test public accommodations like a hobby. They do this testing across the country, often from great distances. They justifiably want to see stores, hotels, banks and more satisfy the Americans with Disabilities Act requirement to make their places of business open to persons with disabilities. But, can a tester file a lawsuit based on his/her test?

The First Circuit says yes. The First Circuit found Debbie Laufer has standing to sue in federal court for a violation of the public accommodation provision found in the ADA. Ms. Laufer relies on a cane and wheel chair to get around. She visited the Coast Village Inn and Cottages website and did not see any accessibility information. Neither did several third party booking sites have such information in regard to that hotel. But, the ADA requires websites to post such information.

Hundreds of Lawsuits

As the hotel pointed out, Ms. Laufer has filed hundreds of such lawsuits around the country. She does not intend to actually stay at most, or perhaps all of these hotels. But, the First Circuit ruled that Ms. Laufer did indeed suffer a concrete and particularized injury when she could not locate such information. She suffered humiliation and embarrassment, said the court. The First Circuit relied on a 1982 Supreme Court decision which recognized the right of a fair housing tester to file suit. The Laufer court did note that other circuits, including the Fifth Circuit, have reached the opposite result. Indeed, the Fifth Circuit decision was also filed by Ms. Laufer. See the Fifth Circuit decision in Laufer v. Mann Hospitality, 996 F.3d 269 (5th Cir. 2021) here.

See decision in Laufer v. Acheson Hotels, No. 21-1401 (1st Cir. 10.5.2022) here. See the ABA Bar Journal article here. What does this suggest for other sorts of testers? Even today, there are testers for defamation. Will they now be able to file suit?

For some 10-15 years, employers have been trying to save some money by transforming traditional employees into independent contractors.  Different entities use different tests to determine whether an employee is truly an independent contractor. I previously wrote about the various tests here. One commonly used test is that employed by the Texas Workforce Commission. The TWC test looks at:

  • Who tells the employee how to do the job: a true independent contractor determines himself how he will accomplish a given task.
  • Training: who provides the training: a true independent contractor provides his own training.
  • Integration: the services of an independent contractor are easily separated from that of the larger employer.
  • Services rendered personally: a true independent contractor can assign the task to a subordinate and need not perform the service personally.
  • Hiring, supervising: an independent contractor can hire, select, pay the workers himself.
  • Continuing relationship. The work of an independent contractor is usually of a definite time period. It does not continue in perpetuity.
  • Set hours of work: an independent contractor sets his own hours.
  • Full time required: an independent contractor need not work for the employer exclusively.
  • Location of services: an independent contractor performs the work where he chooses.
  • Order of sequence. An independent contractor is concerned only with the final product. The sequence in which the work is performed do not concern him
  • Oral or written reports: an independent contractor is usually not required to submit regular reports or updates.
  • Payment by hour, week or month: an independent contractor is generally paid by the job, not by a set time period.
  • Payment of business & travel expense: an independent contractor is normally paid for his/her business and travel expenses.
  • Tools & equipment: an independent contractor provides his own tools.
  • Significant investment: an independent contractor has a significant investment in his business. An employee has little or no investment in the business for whom the work is performed.
  • Profit or loss: an independent contractor can realize a profit or loss from one job depending on the result.
  • Working for more than one firm at a time: an independent contractor often works for more than one business at a time.
  • Making service available to the public: an independent contractor generally makes his services available to the public at large. An independent contractor may hang a shingle or advertise his services.
  • Discharge without liability: if the work satisfies the contract terms, an independent contractor cannot be fired without incurring liability for breach of contract.
  • Right to quit without liability: an independent contractor is legally responsible for job completion. If he quits, he becomes liable for breach of contract.

These are 20 factors in the TWC test. The other tests also include many different factors. But, generally, the courts look to a few factors more than most: right to hire/fire; providing one’s own tools and equipment for the work; freedom to take on other work; how integral is the work to the business; and how the employee is paid are probably the most important factors.

If the work to be performed is so integral to what the business does, the courts are less likely to see the work as a true independent contractor. For example, if a bakery hires someone to bake a certain type of pastry, that worker is likely to be viewed an an employee. But, if the same Baker hires someone to install a new electrical lamp, that work will be seen as not integral to the sort of work normally performed by that bakery.

See the TWC website here for more information.