Once again, Trump lawyers give us a master class in how not to litigate. Donald Trump was sued in New York civil district court for civil fraud. Attorney General James claimed the Trumps perpetrated fraud among lenders when they vastly overstated the value of their holdings. A couple of days ago, the judge presiding over that case, Judge Engoron issued his decision on AG James’ Motion for Partial Summary Judgment. The Judge granted AG James’ motion. That is an astounding result for such a high profile lawsuit. That summary judgment was granted indicates the Defendant’s case was weak. It is exceedingly rare for a high profile defendant to not settle a weak claim.

In any event, summary (i.e. “quick” or without a jury) judgment was granted. In his ruling, Judge Engoron expressed deep annoyance with the advocacy of the Trump lawyers. You know things are starting badly when the Judge titles the first section “Arguments Defendants Raise Again.” This should be Advocacy 101, but you should never press a failed argument a second time. But, here, the Trump lawyers have gone second and third times with the same, failed argument. The Judge refers to the Movie, “Groundhog Day” when he addresses yet again the frivolous argument that Trump’s Financial statements have a disclaimer that they should not be relied on. Indeed, Donald Trump himself often points to that disclaimer in his many comments about this case.

Yet Again

But, as the Judge pointed out, the disclaimer does not absolve Donald Trump, since the financial statements also state that Donald Trump is responsible for the representations contained in those statements. The Judge adds, wearily it seems, as he expresses annoyance at having to say this again, that there are times when a disclaimer can absolve a person of liability. But, such circumstances are not present here – not even close.

Sanctions

Eight pages into his decision, the Judge addresses sanctionable conduct. The Judge says he has addressed Defendant’s arguments regarding a Motion to Dismiss and James’ request for a preliminary injunction twice already [emphasis the court’s]. Both times, the matter was appealed and the Defendants lost both times. Yet, says the Judge, they are bringing up the same arguments a third time.

At this point, every trial lawyer in America is cringing. These mistakes, if they are mistakes, now lay in the first year lawyer zone. Only a first year lawyer would commit such errors that are sure to antagonize every judge.

The Judge mentions his inherent authority to sanction frivolous claims and defenses. He adds that he has already described these arguments as “borderline frivolous” upon the first time they were pressed.

At this point, we have to wonder if the lawyers are deliberately trying to antagonize the Judge. As the Judge mentions, their conduct in reiterating these arguments yet again is “egregious.”

The Judge sanctioned each of Trump’s attorneys $7,500 each. The Judge points out their many “fantasies:” restricted land is worth the same as unrestricted land; regulated rent has the same value as unregulated rent; the Attorney General does not have capacity to file suits; etc. The Judge describes these as “bogus” arguments. Even in New York, it is rare for a Judge to criticize the lack of skill among the lawyers so directly. This Judge is extremely annoyed. In Judge-speak, he is spitting nails.

The Judge noted that Donald Trump has been sanctioned in other lawsuits. Judge Engoron notes rightly that it matters not whether the silly arguments were made at the request of Trump himself or if the lawyers made these weak arguments on their own. Every lawyer has a duty to withdraw baseless claims or defenses, says the Judge. I would also add that every lawyer has a duty to not discredit himself in the eyes of the Judge, simply because the client has unrealistic expectations. As one Law Professor told us 40 years ago, if your client screws things up, at least save yourself, so you can at least retain your own credibility. Trump’s lawyers willingly sacrificed their credibility.

Repetitive weak arguments simply doom whatever valid claims a lawyer might have. My guess is those lawyers knew better. They had to. Yet, they went ahead. See the decision in New York v Trump, Et Al here.

Arbitration agreements are very common in the Texas work force. Increasingly common is the onboarding process in which new employees sign everything online. That leads to issues. The arbitration agreement provision is very routine. Will the employer get around to signing every arbitration agreement? In Hi Tech Luxury Imports v. Morgan, No. No. 03-19-00021-CV (Tex.App. Austin 4/30/2019), the employer forgot to sign the agreement. Yet, Hi Tech sought to compel arbitration.

The district court denied the employer’s motion to compel arbitration. On appeal, the Third Circuit in Austin affirmed. The higher court noted it is basic contract law in Texas that for an agreement to be binding, it must be signed by both parties. The agreement makes several references to this being a “mutual” agreement. Both parties would be giving up their right to a jury trial by signing the agreement. if only one party signs, then only that one party has given up the right to jury trials. That means the agreement is not binding. See the decision here.

The key point for these online arbitration agreements is that if the agreement expresses a requirement that the agreement be signed, then signatures from both parties are necessary. The Fourth Court of Appeals in San Antonio discusses the mutual signature requirement in Advanced Foundation Repair v. Melendez, No. 04-19-00073 (Tex.App. San Antonio 7/31/2019). Like the case in Hi Tech, the foundation company – which created the agreement – did not sign the intended arbitration agreement. Since the agreement stated that both parties needed to sign to make the agreement binding, it was, therefore not binding.

Signing agreements online may be easier, but not if the employer forgets its part in that process.

In the recent decision in January v. City of Huntsville, No. 22-20380 (%th Cir.7/24/2023), the Fifth Circuit has returned again to its old friend, the discredited “pretext plus” doctrine. I have previously written about this insidious doctrine here and here. In January, a fire fighter had gall bladder surgery. The surgery was botched. Ten years later, he was still suffering the effects of that surgery. He was passed over for promotion. He met with City leaders and accused them of discrimination. He said he might complain to the EEOC.

In 2019, he went to City offices to copy some documents. City workers complained later that Plaintiff January appeared to be intoxicated that day. He was accused of blocking a female worker near the copy machine. Mr. January denied the accusations. He said he was suffering from hypoglycemia that day. In fact, he had told his employer months before that there might be times when he appeared to be drunk – due to the effects of hypoglycemia. The City fired January two weeks later.

Summary Judgment

Mr. January filed suit. But, the lower court granted the City’s motion for summary judgment. On appeal, Judge Clement pointed to the bad decision in Owens v. Circassia Pharmaceuticals, 33 F.4th 814, 835 (5th Cir. 2022), which applied a pretext plus analysis. Judge Clement cited that decision to assert that a plaintiff must show “substantial evidence” that the employer’s preferred explanation is a pretext for discrimination. January denied that he was drunk that day when he was making copies. he said he was suffering from hypoglycemia and that he was sleep deprived. January even produced an officers’ body cam video that shows him in a normal state that day.

Subjective

But, the court said a video is “subjective” – suggesting a plaintiff needs objective evidence. The court also faulted the fire fighter for not having “actual” evidence that he suffered from hypoglycemia that day. The court was stating flatly that January’s testimony about his condition that day did not suffice. This assertion flies in the face of Tolan v. Cotton, 134 S.Ct. 1861 (2014), which holds that a plaintiff’s testimony has equal evidentiary value to that of any other witness. There is nothing in the Rules of Evidence that require the testimony of any witness be corroborated by so-called “actual” evidence. The testimony of a witness is evidence. A jury can assign that testimony less weight than other evidence. But, such testimony is still evidence.

In requiring the plaintiff to provide “actual” evidence (whatever that might mean), the court applied pretext plus. The court was requiring something more than just showing the employer’s explanation was false. Pretext plus was specifically rejected by the Supreme Court in Reeves v. Sanderson Plumbing Products, 530 U.S. 133 (2000).  Reeves said explicitly that falsity of the employer’s explanation alone can support a jury finding of discrimination. Reeves stated:

” . . .it is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer’s explanation.”

The Fifth Circuit clings stubbornly to the pretext plus doctrine. Summary judgment should only address cases which are so clear that a jury need not address it. Mr. January’s case is a classic he said.she said. Only the jury should assess credibility of opposing witnesses. See the decision here.

I previously wrote about the first decision in Hamilton v. Dallas County here. That decision held that forcing female detention officers to work on weekends was not discrimination based on sex. The Fifth Circuit panel noted rightly that prior caselaw required an “ultimate employment action” to constitute discrimination. Prior caselaw defined ultimate employment action as hiring, firing, granting leave, etc. So, based on prior caselaw, being forced to work particular shifts was considered not serious enough to amount to discrimination.

But, the Hamilton plaintiff then asked the court to reconsider. Courts rarely grant a motion to reconsider. But, in a rare en banc decision, the Fifth Circuit pointed to the plain language of Title VII which imposes no requirement of an “ultimate employment action.” Title VII actually speaks to anything that affects “terms and conditions” of the job. The en banc decision reversed the dismissal. The en banc court noted that no other court of appeals applied an “ultimate employment action” requirement.

So, yes, requiring only women to work on weekends constitutes discrimination under Title VII. See the decision in Hamilton v. Dallas County here, No. 21-10133 (5th Cir. Aug. 18, 2023) (en banc).

Two conservative legal scholars argue that former Pres. Trump is barred from holding office. They point to Sec. 3 of the 14th Amendment which bars persons who “engaged in insurrection” from holding office in the U.S. government. That section of the 14th Amendment was aimed at former Confederates who might seek elected office. But, the wording is broad enough To apply to anyone who “engages in insurrection.”

The article, written by William Baude of the University ion Chicago Law School, long known as a conservative law school, and Michael Stokes Paulsen of the University of St. Thomas School of Law, will be published in the University of Pennsylvania Law Review. Both of the authors are members of the Federalist Society and consider themselves to be originalists.

The authors point to Trump’s exhortation on Jan. 6 that his followers “fight like hell,” his attempts to intimidate state officials regarding vote counting, Trump’s efforts to persuade state legislatures to overturn election results, his attempts to pressure Congress to reject votes, and his attempt to pressure Vice-Pres. Pence to reject legitimate vote counts. And, the professors note his indifference as the Jan. 6 riot unfolded.

Amnesty

The professors note that in 1872 and 1898, Congress specifically issued amnesty to former Confederate officials. That indicates Congress at the time viewed Sec. 3 ban as ongoing and effective. Because Sec. 3 of the 14th Amendment came after other amendments, it would supersede prior amendments such as the 1st Amendment and its free speech clause. We must note that the plain language of Sec. 3 is straight forward. The challenge will be to show that Trump’s actions and those of his conspirators amounted to engaging in “insurrection.”

See ABA Bar Journal report here.

There are folks with disabilities who test websites to see if those websites are ADA compliant. I previously wrote about one tester, Deborah Laufer here. In Laufer v. Acheson Hotels, 50 F.4th 259 (2022), the First Circuit ruled that Ms. Laufer as a tester did have standing for her ADA lawsuit. Some of the ADA testers are literally filing hundreds of lawsuits each year. The hotels who are often the targets of those lawsuits question whether the testers ever possessed sincere intentions to visit those hotels.

U.S. Supreme Court

One of the tester cases has been appealed to the U.S Supreme Court. Ms. Laufer’s case against Acheson Hotels was appealed to the U.S. Supreme Court. But, the lawyer who handled that case and who has handled hundreds of her lawsuits was suspended by a federal court in Maryland for six months. Last July, a court noted that Tristan W. Gillespie filed multiple tester lawsuits all with the same typos and misspellings. Yet, he claims that it took him two to four hours to draft each complaint. He filed 16 such tester lawsuits in one day. Mr. Gillespie conceded at a disciplinary hearing that he submitted fee petitions which contained some false entries.

Alleged Fraud

After that suspension, Acheson Hotels submitted a brief to the Supreme Court. That brief accused Laufer’s now former attorneys of defrauding scores of hotels in their fee petitions; claims those lawyers sent hundreds of thousands of dollars to an investigator who did little work, but was father to Ms. Laufer’s grand-daughter; and that those lawyers lied to the hotels in settlement negotiations.

After Mr. Gillespie was sanctioned, Ms. Laufer submitted documents asking to drop her Supreme Court appeal – without a decision. As one commentator observed, it appears that Ms. Laufer wishes to avoid a bad decision – one which may well overturn that favorable decision in Laufer v. Acheson Hotels. See ABA Bar Journal report here for more information.

Indeed, even though the actions of Mr. Gillespie in no way would involve Ms. Laufer, those sanctions will surely color her entire appeal. Mr. Gillespie’s conduct does support the hotels’ general allegation that the testers do not truly intend to stay at these hotels and that these suits amount to nothing more than an attempt to secure attorney’s fees. It appears that Mr. Gillespie was cranking out lawsuits. But, certainly, these lawsuits benefited persons with disabilities across the country.

Yes, Barbie has been in court quite often. Is there a litigious Barbie, yet? … In Mattel, Inc. v. Walking Mountain Productions, 353 F.3d 792 (9th Cir. 2003), the toymaker sued Tom Forsythe, a photographer, after he photographed nude Barbie using kitchen appliances, a “Food Chain Barbie” depicting a “Malted Barbie” on a vintage Hamilton Beach malt machine, and a “Barbie Enchilada,” which depicted four Barbies wrapped in tortillas and covered with salsa. Mattel sued for infringement of its patent. But, the Ninth Circuit found that Forsythe’s use of Barbie images was “fair use” and represented parody. The pictures constituted a transformative use of the Barbie images.

The Court noted that some of the photos depicted Barbie “about to be destroyed or harmed by domestic life in the form of kitchen appliances, yet continues displaying her well-known smile, disturbingly oblivious to her predicament.” It is not difficult to see the commentary that Forsythe intended or the harm that he perceived in the roles of women in our society, noted the Court.

Barbiesplaypen

Inevitably, there would be a few lawsuits regarding a less wholesome image of Barbie. In Mattel, Inc. v. Internet Dimensions Inc., No. 99-Civ-10066, 2000 WL 973745 (S.D. N.Y. 7/13/2000), Mattel sued regarding the use of the Barbie name by an adult entrainment website. The court found the domain “barbiesplaypen” should be transferred to Mattel. The court noted that the Barbie dolls “with their long blonde hair and anatomically improbable dimensions, are ostensibly intended to portray wholesomeness to young girls.” But, said the court, the models on the barbiesplaypen.com site “were, um, engaging in anything but “wholesome activities.”

Dungeon Barbie

Suzanne Pitt created a “Dungeon Doll” Barbie. The doll included “Lederhosen-style bavarian bondage dress and helmet in rubber with PVC-mask and waspie.” This Barbie was depicted in a storyboard on the website and she was named “Lily the Diva Dominatrix.” This Barbie was involved in a story of sexual slavery and torture. The victim was another re-configured Barbie. Other adult products were also sold on the site.

The court did find that the makers of Dungeon Barbie were entitled to a “fair use” defense because these dolls were, “to put it mildly, ‘transformative’ and not merely ‘supplanting’ the original Barbie doll.” Mattel Inc. v. Pitt, 229 F.Supp.2d 315 (S.D. N.Y. 2002). The court noted the result might have been different if the website had depicted Barbie in a different style of cheerleader outfit. But, as far as the court knew, Mattel did not produce an “S&M” Barbie.

So, yes, Barbie is no stranger to the courthouse. See ABA Bar Journal here for more tales of Barbie going to court.

In Spears v. Louisiana College, No. 20-30522, 2023 WL 2810057 (5th Cir. 4/6/2023), the appellate court addressed the situation in which an employee’s duties are are assigned to various employees. Some courts refer to this practice as “fractioning.” Carolyn Spears taught at Louisiana College for many years. She contracted cancer in 2012 and again in 2014. In 2016, she received long-term disability and used her sick leave. In early 2017, the College told her that it would not renew her contract. There was dispute about whether Spears had said she would not be returning for the 2017-2018 school year.

Fractioning

At the district court level, the court granted summary judgment for the employer. The district court had found that the College did not replace Ms. Spears with a younger employee. Instead, it divided her duties among various other teachers. She was not replaced, claimed the district court. But, the Fifth Circuit disagreed. It noted that “fractioning” can amount to replacing an employee with younger employees. One of the teachers who received some of Ms. Spears’ classes was male, buttressing her claim of gender discrimination.

Direct Evidence

Too, said the higher court, there was a fact dispute regarding whether Ms. Spears said she won’t return for the next school year. Certainly, her contemporary emails to the College indicated that she intended to return.

Ms. Spears also alleged she was non-renewed as part of disability discrimination. And, in fact, one of the school administrators specifically said her contract was not renewed because she was “too ill to teach.” That statement clearly amounts to direct evidence that they were motivated by her illness and perceived health issues. See the decision here.

In Harmon v. Texas Southern Univ., No. 14-21-00125 (Tex.App. Corpus Christi 6/15/2023), the court denied the employer’s Plea to Jurisdiction. It also looked behind the employer’s weak arguments about what its supervisor knew. Ms. Harmon had taught at Texas Southern for some 16 years, when her knee gave her so much trouble that she needed surgery. The knee problems had been building for several years.

Her immediate supervisor, Michael Sollars, the chair of the English department, officed right next door to Prof. Harmon. She had remarked to Prof. Sollars a couple of times about her knee. Yet, Sollars denied knowing Harmon had knee problems. A critical comment of any discrimination nation case is looking behind the employer’s story. Yet, many courts simply refuse to make the effort to do so.

FMLA Leave

In late 2018, Prof. Sollars decided he needed to fire Harmon. Coincidence or not, this was the very time period in which Prof. Harmon had met with HR and received approval for FMLA leave for surgery. HR told Prof. Harmon that they would tell Prof. Sollars about her approved FMLA leave.

In November, 2018, Harmon was working at home grading papers. Prof. Sollars emailed her setting up a “required” meeting. Twice, Prof. Harmon replied that she could not meet with him, since she was under a doctor’s care. A second member of the faculty was also copied on the second email. Harmon told the second faculty member that she, Harmon, could not attend the meeting because she had a doctor’s appointment. Harmon explained to the second faculty member that her knee was doing much worse now and please let her, Harmon know what the meeting was about.

Some Speculation

Despite these communications over a period of years, TSU claimed in its Plea that Sollars was not aware of Harmon’s impairment or of her upcoming surgery. The Corpus Christi court of appeals agreed that there was “some” speculation about what Sollars knew. But, even so, taking all the inferences in favor of Ms. Harmon, a jury could find that Prof. Sollars knew about her impairment and understood she was making a request for reasonable accommodation.

As the court said, “[r]easonably implicit in her communication with Sollars was the idea that Harmon could not make the meeting because she was under a doctor’s care and had a doctor’s appointment.” The court then added that Harmon’s email to the second faculty member was more explicit regarding her need to postpone the meeting. When Sollars then responded that she must attend the meeting, and that her continued employment depended on it, Prof. Sollars essentially foreclosed any further interactive dialogue. See the decision here.

Yes, it would have been better if Prof. Harmon had said the things to Sollars that she told the second faculty member. But, as the court acknowledges, it is not up to the employee to come up with a solution on her own. There is supposed to be a dialogue about accommodations. TSU never explained why the meeting had to occur within the 24 hour time frame Prof. Sollars was trying to impose.

Too, to some degree, there is always “some speculation” about what the supervisor knew – and also about what the employee knew. That is why we have jury trials.

I have written about the Trump election lawyers, including Rudy Giuliani here and here. I expressed amazement that so many lawyers were willing to risk their law licenses advocating frivolous election claims. And, now the other shoe has dropped. A Washington D.C. attorney Bar committee has recommended that Rudy Giuliani be disbarred. It is an extraordinary development for someone who was once one of the leading lawyers in our country.

An attorney discipline committee is typically comprised of volunteer attorneys. Such committees include lawyers who experience every day the same issues Rudy Giuliani experienced. Mr. Giuliani cannot say his client made him do it. He cannot say he was dealing with a difficult judge. In essence, a jury of his peers studied Mr. Giuliani’s actions up close and found them wanting. Even now, I just cannot believe any lawyer would so risk his/her law license.

See Politico news report here for more information. Even if the committee’s recommendation is not accepted by the larger committee, this is still an event which Giuliani would have to self-report on various bar applications throughout what is left of his legal career.