To Kill a Mockingbird is a book about a lawyer doing the right thing.  But, it seems the author’s agent did the wrong thing.  Harper Lee has sued her agent, Samuel Pinkus, for allegedly tricking her into signing away her rights to the book with no compensation.  Mr. Pnkus is the son-in-law of Ms. Lee’s long-time agent, Eugene Winick.  Harper Lee, now 87, says Mr. Pinkus took advantage of her failing eye sight nd hearing to transfer the rights to the book to him in 2007. 

Ms. Lee has filed suit in New York City.  Mr. Pinkus took over her account when Mr. Winick became ill a few years ago.  The reclusive author says she has no memory of signing away her rights to the book.  See Manchester Guardian report. 

Yes, there is still a war on.  A son of the City Manager for Olmos Park died from his injuries in a bomb blast.  SSGT Michael H. Simpson died from injuries from an IED while riding an ATV.  SSGT Simpson was the son of Michael W. Simpson, the City Manager for Olmos Park, Texas.  Michael W. Simpson is retired from the U.S. Army.  SSGT Simpson had a wife and two young sons and was posted to Ft. Lewis, Washington.  He had only been in the war zone two weeks when he was injured.  See San Antonio Express news report. 

It has been several months since I mentioned the name of a deceased soldier with a connection to San Antonio.  But, yes, the war still continues and Americans are still risking their lives for us here at home. 

A jury awarded $240 million to 32 men with mental disabilities in Iowa. Their employer was Henry’s Turkey Service, which had been previously assessed $1.76 million for underpaying men with disabilities.  See my prior blog post about that jury trial.  The $240 million awarded in Iowa includes $2 million in punitive damages for each of the 32 men, plus $5.5 million in compensatory damages (i.e., emotional suffering damages) for each of the 32 men.  See Des Moines Register report.  There are caps on the amounts that can be awarded under the Americans with Disabilities Act, so, I am sure, these amounts will be reduced.  

These men were shipped to Iowa from Texas to work at the iowa plant.  For 40 years, the employer shipped men with disabilities from Texas to the Iowa labor camp.  They were paid .41 cents per hour.  But, the court limited the jury award to the last two years of the camp’s operation.  

Robert Canino, the chief EEOC lawyer in Dallas, was the lead attorney representing the 32 men.  The suit charged Henry’s Turkey Service with violations of the Americans with Disabilities Act.  The 2011 lawsuit was based on the Fair Labor Standards Act and alleged wage violations. 

The men were not afforded the services usually provided to persons with disabilities.  They were not enrolled in Medicaid or allowed other services.  They were kept as property, said Mr. Canino.  They lived in an old schoolhouse converted into a bunkhouse.  

The company president, Kenneth Henry, of Proctor, Texas, testified he was not aware of any abuse other than two incidents.  He said that over 45 years, he had sent 1500 men with mental disabilities to labor camps in various states.  Evidence showed some men were handcuffed to their bunk at night.  

What a way to treat persons with mental disabilities.  Good for the jury that held the employer accountable. 

Federal employees who are members of a union have the right to have a union representative present during an interview with management when the employee believes he will be subject to discipline.  That is an invaluable right when you are "under the gun" and feel like your job is in jeopardy.  Most states that have addressed the issue also allow Weingarten rights to members of public sector unions.  But, now, we know that public sector employees do not have that right.

In the decision of City of Round Rock v. Rodriguez, the Texas Supreme Court found that Texas Labor Code 101.001 does not include that right.  Chief Justice Jefferson and others dissented.  Texas is in the minority of states regarding this important union protection.  See the opinion here.  Prior lower court decisions affirmed Weingarten rights.  Texas law already forbids strikes by public sector unions.  Now, the protection from over-bearing supervisors is diminished. 

The Federal False Claims Act, also known as qui tam lawsuits, have been around since the Civil War.  In Fact, the False Claims Act was passed to deal with the many fraudulent government purchases during the Civil War.  The Federal government was defrauded many times by contractors during the Civil War.  The act allows a person who first reports fraud on the government to receive 30% of any money recovered.  The trick, so I am told, is to get the U.S. Attorney to join in the lawsuit.  One can expect the U.S. Attorney or the Department of Justice to join only the strongest qui tam lawsuits. 

Department of Justice has indeed joined in Floyd Landis’ lawsuit for fraud against Lance Armstrong for defrauding the Postal Service. The suit alleges that Mr. Armstrong defrauded the government when he accepted payments for riding on their cycle team.  According to the DOJ Complaint, team officials assured the Postal Service for years that the cycle team was not doping.  

The Postal Service paid $40 million to be the sponsor and paid Lance Armstrong $17 million.  But, under the False Claims Act, the government and Floyd Landis must also show that the government was harmed.  According to the Armstrong response to the lawsuit, the Postal Service gained some $139 million due to the Armstrong brand.  The defense cites the Postal Service’s own internal study.  See CBS news report. 

So, the extent of the harm to the U.S. government could be a problem.  But, yes, when you get the US Attorney involved, the lawsuit has truly begun. 

Ok, I have been tempted once or twice to file suit when someone at the store gets my order wrong, or they make me wait too long.  i might have even joked about doing so once or twice.  But, I have never seriously considered suing over something trivial.  I mean, let’s be real.  

But, a Personal Injury lawyer in New York City did not hesitate when Brooks Brothers, he believes, gave him the wrong suit.  Robert Ginsberg filed suit for $7,646 when the retailer gave him a suit that was a slightly different color and the wrong size than the one he believed he purchased.  He is asking for $646 for the suit, $2000 for his time when he had to argue with the store for 90 minutes and $5,000 in punitive damages.  Of course, he did not discover the error for a couple of months, after he opened the garment bag.  See ABA Bar Journal report. 

Mr. Ginsberg previously sued American Airlines for $2 million when he had an altercation with an attendant over a food cart.  That suit was dismissed and is now on appeal.  

Ok, so the next time Popeye’s gets my order wrong, look out…….

A reader asks a question.  Her business employs a Reservist who will be gone for two weeks doing military training.  The employer understands it needs to give him his time off.  But, does the business also need to pay him his salary during his absence?  

Good question.  No, the Uniformed Services Employment and Reemployment Rights Act (USERRA) only requires that leave be extended, not salary or pay.  The federal government and some local governments continue to pay the salary during the military leave as an example to private businesses.  But, continuing the pay is not required. For more information, see the DOL USERRA Fact Sheet. 

The Fifth Circuit has granted an en banc hearing request concerning a same sex discrimination case.  In the lower court, a jury found in favor of the employee regarding a same sex discrimination case.  On appeal, the Fifth Circuit vacated the jury result and found in favor of the employer.  Now, on additional appeal, the entire panel of the Fifth Circuit will consider the case.  

En banc hearings are rare.  In a normal appeal to the Fifth Circuit, a three judge panel hears the case.  three judges out of the some 15 total judges on the Fifth Circuit.  in an en banc hearing, all of the some 15 judges will now hear the appeal.  That does not mean the initial decision of the Fifth Circuit will be reversed.  But, that could happen.  

Same sex discrimination cases are rare.  There is no statute like Title VII that expressly protects gay persons from discrimination.  See the decision here. 

Major Nicole Mitchell has served in the Air Force Reserve some 20 years.  In her civilian life, she was an anchor for the Weather Channel.  Ms. Mitchell was forced out in 2010.  She has filed a claim alleging discrimination due to her Reserve status.  She says that after NBC (and Bain Capital and the Blackstone Group) bought out the Weather Channel in 2008, the new management complained about her military obligations.  She was moved to a less prestigious time slot.  She was told to clear military training with her civilian boss first.  (Hello, have these guys heard of AWOL?) Days after returning from her annual two week training, she was told her contract would not be renewed for "business reasons."  

Ms. Mitchell seems to have good evidence.  Simple timing of her termination suggests her military status was an issue for her supervisors.  She also benefits from the Uniformed Services Employment and Reemployment Act which sets up a presumption that her termination was due to her military service.  Under USERRA, she can hope to recover her lost wages.  If the violation is found to be "willful," then she can recover liquidated damages.  Liquidated damages are limited to the amount of lost pay and benefits. 

Maj. Mitchell says many people in her situation simply sign away their rights to a lawsuit to obtain a severance package.  But, she did not and is pursuing her legal remedies.  Like many employees, she signed an arbitration agreement.  Arbitration, as Ms. Mitchell mentions, is not favorable to employees.  One arbitrator mentioned at a recent Texas seminar that out of perhaps ten employment cases she has decided, only about two were decided in favor of the employee.  

Ms. Mitchell mentioned that she attended a meeting held by NBC at which high level managers affirmed their commitment to hiring veterans.  Apparently, they did not realize that Maj. Mitchell was in the room and had filed a claim against them for violating USERRA.  See AOL report.  Hiring veterans is different than hiring current, active members of the Guard and Reserve. 

I am biased, of course.  I served in the Army Reserve and National Guard for 25 years.  But, good for Maj. Mitchell for standing up to folks who do not appreciate her service.  And, I can attest from personal experience, it is difficult to balance the two jobs.  NBC would have gained far more if they had retained Maj. Mitchell.  I am still amazed at the complete lack of training mid-level managers usually receive in corporate America.  The military provided folks like Maj. Mitchell with a first-rate leadeship training that translates well to the civilian workforce.  Quality managers prevent many more problems than they cause. 

Like bond traders and those folks at Enron who did whatever they did, lawyers can be pretty greedy.  Adam Victor, owner of a few different businesses hired a very large law firm, DLA Piper to take one of his businesses through bankruptcy.  When he first hired the law firm in the 1990’s, it was known as Piper Rudnick and was big but not so big.  Since then, as DLA Piper, it has become perhaps the largest law firm in the world.  And, they apparently act like it.

DLA Piper sued Mr. Victor over unpaid bills.  Mr. Victor counter-sued claiming the firm had over-billed him.  Recent evidence includes emails gloating that the law firm has exceeded the budget for Mr. Victor’s case.  One lawyer exulted, "I hear we are already 200K over our estimate – thats Team DLA Piper!"  Another DLA Piper lawyer responded that a third lawyer had been assigned to the case.  "Now Vince has random people working full time on random research projects in standard ‘churn that bill, baby’ mode."  "That bill shall know no limits!"  See New York Times report. 

These emails represent the ugly side of what ought to be a more noble profession.  Lawyers often decide how much legal research to perform, what motions to file, and more.  It can be tempting to over-do it especially when other work has slowed.  But, that is why this is a profession.  We are supposed to exercise greater concern for the needs of our clients than for our own.