Deborah Laufer sought to dismiss her appeal to the U.S. Supreme Court, but the court still heard oral arguments on her case. I previously wrote about her case here. Ms. Laufer is confined to a wheel chair. She has accessed websites of hotels and B&B’s for years to see if they satisfy the requirements of the Americans with Disabilities Act. The ADA requires that those websites describe the accessibility of the various hotels for persons with disabilities. If those websites do not adequately describe their accessibility features, Ms. Laufer sues them.

As I mentioned previously, Laufer ran into a problem when her lawyer was sanctioned by a U.S. District Court. Ms. Laufer was then concerned that that attorney discipline would affect her appeal. So, she submitted papers indicating she would file no more such lawsuits and wished to withdraw the current appeal.

Standing

So, on her appeal to the U.S. Supreme Court, the issue was standing. Is a person who views a website sufficiently harmed when they find a lack of accessibility information? Ms. Laufer had no intention of staying at each of hundreds of hotels and B&B’s. Can she truly say in court that is harmed? In a Fair Housing Act case, the U.S. Supreme Court upheld the right of testers to file suit. That decision in Havens Realty Corp. v. Coleman, 455 U. S. 363 (1982) said testers have standing. But, that case differed slightly. In that case, a black person and a white person both inquired about leasing an apartment. The black person was told directly that he could not rent the apartment. For Justice Thomas, that was enough difference to make the decision in Havens not applicable. Justice Thomas would have ruled against Laufer.

In any event, Justice Barrett wrote the majority opinion finding the matter as moot. In so doing, she noted that Ms. Laufer had filed hundreds of these lawsuits all across the country. She had, said Justice Barrett, single-handedly created a circuit split. Three courts of appeals have found Ms. Laufer to have standing, while another three circuits, including the Fifth Circuit, had found Laufer lacked standing to bring these lawsuits. Justice Barrett’s majority opinion vacates the decision of the First Circuit which had found Laufer did have standing. So, in effect, the Supreme Court decision upholds the district court opinion that dismissed Laufer’s lawsuit.

It is a difficult decision – as most Supreme Court cases are. Ms. Laufer is filling an important role, one not assumed by any governmental agency. Hotels and many other public buildings routinely ignore the physical requirements of the ADA. But, the whole specter of filing lawsuits with little discernible harm is troubling. In fact, the discipline of her attorney supports the narrative that Ms. Laufer was simply engaged in a profit-making enterprise, not in actual civil rights activism. That is a shame, because she filled a real need. Persons with disabilities as a group are least likely to speak up for themselves. They prefer to not make waves. Laufer was their champion, if imperfectly so.

See the decision in Acheson Hotels v. Laufer, No. 22-429 here.

A U.S. District Court in Illinois has dismissed a lawsuit filed by a small Illinois law firm. The small firm sued DoNotPay, an online site that provides contracts, offers legal advice for appealing traffic tickets and procedures for property tax appeals. It is an artificial intelligence website. According to the law firm, MillerKing, the website claims to be affiliated with licensed attorneys, but is not.

The Judge ruled that MillerKing did not show that it had standing for the suit. MillerKing claimed it suffered decreased business and suffered harm to its reputation. But, the Judge did not agree that those harms were actual harms.

DoNotPay is not licensed to practice law. So, it was also accused of unauthorized practice of law. The Court allowed MillerKing to amend its complaint and perhaps add sufficient facts to show standing.

A similar lawsuit is pending in California. But, that lawsuit was filed by an aggrieved customer. See ABA Bar Journal news report here.

Barry Oliphint worked for Jacobs Engineering for seven years. Mr. Oliphint had a major argument with his supervisor about performing an inspection early. The supervisor and Oliphint agreed Oliphint would resign. But, when Mr. Oliphint started looking for a new job, one interviewer told him he had lied about resigning. It turned out that Jacobs Engineering was telling prospective employers that they had fired Mr. Oliphint.

Oliphint hired a private investigator to find out what Jacobs Engineering was saying about him The investigator learned that the former employer was indeed saying they had fired Oliphint. Unable to find work, Oliphint then sued Jacobs Engineering for defamation. But, the lower court granted the former employer’s motion for summary judgment. On appeal, the Houston court of appeals affirmed.

The appellate court said that in hiring a private investigator, Mr. Oliphint knew what the employer would say. He knew the employer would defame him. Since Oliphint knew what the former employer would say, he “invited” or consented to the defamatory statement. There is considerable caselaw supporting that view. But, the reasoning seems silly when applied in this context. The investigator and Oliphint might have “invited” the defamation during that one telephone call on that one day, but they certainly did not invite or consent to defamation to other potential employers. And, it was the defamation to the other potential employers that caused harm to Mr. Oliphint.

See the decision in Oliphint v. Richards, 167 S.W. 3d 513 (Tex.App. Hou. 2005) here.

I previously wrote a post about emotional outbursts at trial here. Emotional reactions to testimony are strictly forbidden in every courtroom. Donald Trump has managed to get away – sort of – with some outbursts. But, this will not last.

Apparently, Me. Trump decided to attend his civil fraud trial in New York when an important witness was set to testify. Doug Larson was an outside appraiser employed by a bank in 2013. His testimony concerned who at the Trump organization told him what and what he did regarding the value of 40 Wall Street, a major Trump property. Mr. Larson testified that he did not include capitalization rates when he appraised the building for a bank. The Trump lawyer, Lazaro Fields believed he had caught the appraiser in a lie. Mr. Fields shouted the follow-on question, “You lied yesterday, didn’t you?”

Grand-Standing

Allowing for some hyperbole by the news reporter, perhaps Mr. Fields did not actually shout? But, even so, that sort of grand-standing follow-on question is… well …. grand standing. There are less confrontational ways to ask the same question. And, since this is a non-jury trial, courtroom antics do not go over well with any judge. [But, to be fair, Fields’ courtroom antics may have been directed to his client, not the judge].

The other other Trump lawyer, Christopher Kise then stood up and talking apparently to the court, said the witness has rights and that he should be cautioned about perjury. [It is odd when a second lawyer interjects regarding a witness. Many judges will not allow it. It may be that Judge Engoron has so many issues to deal with that he must pick his battles.]

The AG lawyer then stood to object to the obvious witness intimidation tactics. Judge Engoron then asked the bailiff to escort the witness out of the courtroom. The Judge then asked both sides to calm down.

More Shouting

But, Kise continued to “shout” that the witness had changed his testimony. Donald Trump nodded his head in agreement. A second AG lawyer then stood, and half facing the audience, comprised of many reporters, said this was a nice “performance” for the press. Mr. Kise responded that he was not a government lawyer, he truly cared for the rights of witnesses. [you can’t make this stuff up!]

At that point, the Judge had enough. He said he wanted the witnesses to testify without disruptions. If Mr. Larson perjured himself, then he perjured himself. Judge Engoron meant that for purposes of today’s proceedings, it does not make a difference if the witness lied. Nothing changes. Any accusations of perjury would have to be made later in a different forum. Mr. Kise surely knows that, already.

The witness, Doug Larson, was then brought back into the courtroom. He resumed his testimony. At which point, Mr. Fields was again shouting that he had lied the day before. More objections, and finally the witness was allowed to proceed with his testimony.

And, outside the courtroom, Mr. Trump asserted that this sort of thing could not go on.

In most trials, it would be major deal if a lawyer shouted or engaged in obvious attempts to intimidate a witness. That Judge Engoron has, so far refrained from coming down on the Trump lawyers reflects the high profile nature of this trial and the likelihood that they want to antagonize the Judge. At some point, the Judge will crack down on there theatrics. See Business Insider report for more information here.

Be Respectful

P.S. A day later, Christopher Kise, while engaging in a discussion with the Judge, was asked a question by the Judge’s female law clerk. Mr. Kise ignored her. The law clerk asked again. Kise, then snapped that he was talking only to the Judge. As the side bar discussion progressed, Kise poked fun at the AG attorney Colleen Flaherty’s intelligence. Ms. Flaherty told him to be respectful. Kise replied, “No.” [does he want to win his trial?] Later, the Judge made Mr. Kise apologize to the female law clerk and Ms. Flaherty.

Potential clients have asked me about this scenario: if co-workers make racial comments about a well-known figure, do these comments help show racial animus toward his/her situation? This situation is presented in a case heard by the Eleventh Court Of Appeals. A black nurse heard racial comments about former President. Obama and about black patients. The nurse was fired. She sought to use those comments to show a hostile work environment. Do racial comments directed toward other persons create a hostile work environment for the nurse?

The Eleventh Circuit said no. The district court granted the hospital’s motion for summary judgment, and the higher court affirmed. The appellate court said “isolated epithets” are bot sufficiently pervasive. [Okay, but for this lawyer, that sounds like the court of appeals making a finding of fact. A jury should decide what is pervasive enough to create a hostile work environment.]

Racial Comments

Cynthia Yelling, the nurse, heard comments by workers when then Pres. Obama came to Alabama. One co-worker asked if he was coming to hand out food stamps? Another nurse said Michelle Obama looked like a monkey. Another nurse said Pres. Obama was stupid and should go back to Africa.

Ms. Yelling complained about the remarks but no one was disciplined. Her complaints were not investigated. The comments were not directed toward Nurse Yelling. Some of the comments were more political than racial. But, the Eleventh Circuit said even viewing these comments as race based, the court did not believe a reasonable jury could find them to be extreme harassment. See ABA Bar Journal report here. See the decision in Yelling v. St. Vincent’s Hospital, No. 21-10017 (11th Cir. 10/5/2023) here.

[Too, the suggestion that some racial comments are too “isolated” smacks of courts addressing issues best left to juries. In personal injury law, it is an accepted principle that you take a plaintiff as you find them. Some plaintiffs have greater susceptibility to certain injuries. The same principle should apply to discrimination law, that some persons are more susceptible to racial comments. A jury should make such determinations, not a judge.]

Donald Trump and his family are on trial for allegedly defrauding banks and businesses. Judge Engoron has already granted summary judgment against the Trumps. That means he has ruled there is no genuine issue f fact such that a jury is needed. The only remaining issue is damages.

Mr. Trump was upset that there was no just to decide this matter. Indeed, Trump has been vilifying the judge for weeks. It is basic Litigation 101 that we should not antagonize the person(s) who will decide our fate. But, there is no jury. There has not been a jury involved in this lawsuit for some time. Some observers blame Trump’s lawyers for not checking a box. What happened?

Equitable Relief

It seems the law on which the lawsuit is based, known as Sec. 63(12) of the New York Executive Law does not address juries. Juries are not prohibited and neither are they specifically provided for. New York caselaw does prohibit juries when equitable relief is sought. Equitable relief refers to what the plaintiff is seeking. The plaintiff in this case is the state of New York via Attorney General Letitia James. AG James sought equitable relief, not relief specifically provided for in a statute or written law.

For example, when a person is inured in a car wreck, she can ask for certain things specifically provided for in a statute: medical expenses, emotional suffering type damages and punitive damages. And, lawyers also add a fourth category of damages known as “equitable relief.” Equitable relief means whatever the judge thinks is fair. In AG James’ lawsuit, she is seeking only equitable relief. She is only seeking what the Judge thinks is fair. But, her lawsuit suggests some things for the Judge to consider, such as “disgorgement.” Disgorgement means disgorge the ill-gotten gains.

Trump’s lawyers could have requested a jury, knowing they would have to litigate and probably appeal that issue. But, they chose not to. Mr. Trump complains that it is not fair that his case will not be decided by a jury – perhaps because he now realizes too late that the Judge he has excoriated will soon decide his fate. But, his real beef is with his lawyers, not with the court. See ABA Bar Journal report for more information here.

Of course, another tack would be to simply stay away from fraud or the appearance of fraud. But, that would require Mr. Trump to accept some responsibility for his actions.

Forty years ago, I was a young lawyer working for a long-time judge in rural Louisiana. Judge Robert P. Jackson had been a judge for a couple of decades and a prosecutor before that. Judge Jackson had seen it all. But, one day, on a Friday of course, we had a divorce case. A Cuban couple was divorcing. As the Cuban husband testified, his wife’s mother, who only spoke Spanish, made constant facial gestures, sighed over and over, and in general demonstrated clear body language animation that the husband testified falsely. She wanted my judge and all the court staff to know she disagreed with the husband’s testimony.

The Witnesses

There was no jury. It was just us, a bailiff, a court reporter and myself, a lowly law clerk, and the Judge. Then as if it could not get worse, there were two witnesses waiting in the back room. A husband and wife were there to testify for the Cuban couple. Along about 2:00 pm, we heard a loud noise in the back room. The bailiff went back there to see what was wrong. It turned out that the two witnesses had argued and one threw water on the other. My Judge was clearly already annoyed that he was still in court on a Friday. He normally was gone by Friday morning fishing or hunting. But, now he was stuck listening to drama kings and queens. Yet, he simply grimaced at the news about the rowdy witnesses.

So, when Donald Trump shakes his head and throws his hands up in reaction to a routine ruling on the evidence from Judge Engoron, I know the judge notices. Judge Engoron may choose for now to say nothing. But, he notices. He makes notes about it. And, when he feels he has no choice, he will take action.

Behaving Badly in Court

There are good reasons why litigants should remain quiet and respectful in court. All judges note your behavior in court. Most make a record a litigant’s conduct. The Judge will build a record for how a party behaves. When enough bad behavior accumulates, the Judge will take some action.

Good order and relative calm hang but by a thread during trial. Emotions always run high. If one party gets away with visible demonstrations, then the other party will respond. Then, it will be “Katy bar the door.” At that point, the Judge has lost control. So, most, perhaps all judges do not let it reach the point that another party will start to react. Here, it helps that the other party is essentially the government. The New York state lawyers will retain their self-control. But, still, Judge Engoro will not let Don Trump continue to demonstrate emotional reactions. This will not last. That is what trials are all about: relatively good behavior until the last day.

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.