Advertising slogans can be a precious thing. Attorney Melissa A. Wilson has sued San Antonio attorney Heather C. Tessmer in federal court for the use of the slogan, “Ever Argue with a Woman?” Ms. Wilson has used a similar slogan. “Ever Argued with a Woman?” in Florida. Ms. Wilson says she has used the slogan San Antonio since 2007. Ms. Wilson received a trademark registration for the slogan in 2014. Ms. Tessmer, however, says she has used the slogan since 2012. State bar records show the Texas bar issued a registration certificate to Tessmer in 2018.

The U.S. Trademark Office records show it initially issued a registration for “Argue” in 2009 to a third law firm in Buffalo, New York. In 2012, Wilson asked the Trademark office to rescind that registration. She later reached a settlement with the Buffalo law firm, to allow Wilson to use the phrase. But, that registration was canceled in 2015.

Ms. Tessmer appears to be relying on the defense that she has rights to use the phrase in Texas. Since, she started using the phrase without notice that Wilson was using a similar phrase. But, that may not fly. I am no patent lawyer, but am very doubtful that lack of notice for trademark infringement makes a difference. See San Antonio Express News report here.

Most, perhaps all, new clients hold an unrealistic view of juries. The movies and television generally depict jurors as somber, thoughtful persons listening intently. The media never depicts what occurs inside the jury room, but we all assume they remain thoughtful, deliberative inside the jury room.

No, they do not. . . . Well, sure, some do. But, many do not. There are no surveys or studies about the internal dymanics, but we know many juries violate accepted practices. We see this in the recent trial at the Bexar County Courthouse. World Car Hyundai owner, Ahmad Zabihian, sued Hyuandai in 2013 alleging the car maker violated an agreement to let him open the next Hyundai dealership in the area. Millions of dollars were at stake. The trial lasted two weeks. The pre-trial litigation lasted years. The trial ended on a Thursday.

The jury deliberated about one hour Thursday afternoon. They returned Friday, just before a three day weekend. According to one juror, the vote was generally 60-40 in favor of the plaintiff. But, some folks were in a hurry to get out of there. If the jury finds in favor of the plaintiff. that takes longer. The jury must then answer a series of questions and arrive at specific numbers for damages. Each question would require a vote and extended discussion. But if the jury finds for the defendant, the entity being sued, then there is just one vote and one discussion.

According to the one unnamed  juror, some folks on the jury wanted them to decide the case within that 30 minutes on Thursday. That struck the one juror as absurd given the complicated issues.

On Friday, one jury member had to leave by 12 pm. They discussed resuming next week. But, other jurors had conflicts. Trying to wrap it up before 12, some jurors suggested finding in favor of Mr. Zabihian, but giving him no damages. No, said others, that accomplishes nothing. They might as well as vote for Hyundai and get it over with. And, that is what they did. They voted for the car maker, because that was the fastest way to get out of the court house and go home.

But, after the trial, after everyone had been released to go home, three jurors approached the judge, Rosie Alvarado, and reported what had occurred. The three jurors said they felt pressured to agree to a vote. Judge Alvarado said she thought this was jury misconduct, but was not sure. But, it certainly is. The jury members were clearly trading votes. Trading votes is one clear action jurors cannot take. In the trial business, the truth is most of us prefer not to look too closely at what juries do inside the jury room. That room is considered almost sacrosanct. Yet, most of us also know what truly goes on. See San Antonio Express-News report here.

As I tell my clients, it is one thing to file suit and risk your future. But, to risk your future on jurors who just do not want to be there raises the risk to a much higher level. And, you notice that at the end, the three jurors asked Judge Alvarado if their complaint meant all 12 jurors would have to come back again for jury duty. Even the three “good” jurors were concerned they might have to do jury duty, again. Her answer was no.

A recent jury in the Western District found Southwest Research Institute, one of the largest employers in San Antonio, guilty of retaliating against a female worker who complained about discrimination. The jury awarded her $410,000. I previously wrote about that jury result here. The jury awarded $335,624 in lost pay and $260,000 in compensatory (i.e., emotional suffering types) damages. The amount of lost pay was then reduced by $185,000 because, said the jury, Ms. Johnson did not adequately look for and maintain employment. The plaintiff then requested interest on these amounts, lost pay in the future, and to seek a rescission of issues regarding the plaintiff’s security clearance.

In response, the Western District awarded $74,000 in interest. It found that reinstatement was not feasible. So, it awarded $45,000 in lost future pay. It also ordered SWRI to send a letter to the government agency that processes security clearances. The letter, said the court, must withdraw its earlier report about Ms. Johnson’s termination, and instead, state that SWRI fired Ms. Johnson because she complained about sex discrimination. With the caps on compensatory damages, the total award to Ms. Johnson then totaled $300,000 in compensatory damages, $55,828 in interest on the back pay, and $45,000 in lost future pay. See Texas Public Radio report here.

Remarkably, the employer opposed the request to withdraw or countermand in some way its previous negative report regarding Ms. Johnson’s security clearance.

Courts often refuse to award lost future pay. This court evidently thought the discrimination endured by Ms. Johnson was egregious. Still to come is the plaintiff lawyer’s application for an award of attorney fees. The amount owed will only increase.

Some employers try to avoid the overtime requirements of the Fair Labor Standards Act by claiming an hourly employee is a manager or simply that the employee is paid on a salary basis. In Kim v. Umami Grill & Sushi, LLC, No. H-18-850, 2019 U.S. List. LEXIS 31054 (S.D. Tex. 2/27/2019), the employer moved moved for summary judgment saying the plaintiff was a chef, and, therefore, an executive or professional who was paid on a salary basis. Umami also claimed the chef was management.

Kim, however, points out that according to several pay stubs, he was often paid significantly below his alleged salary amount. The employer was deducting pay for days which the chef missed for illness. The court noted the deductions. The judge said that deductions for a half day are permitted for absences. But, the employer was deducting full days when the chef was absent. There are exceptions under the FLSA for situations in which full day deductions are permitted, but the employer offered no such explanation. So, the court said there were genuine issues of material fact and summary judgment, was not, therefore, appropriate. See the decision here.

Clients sometimes come to my office, convinced they have an unassailable lawsuit. They cannot lose. They are certain they have the best evidence. But, in litigation, nothing is ever certain. In the case of Knepper v. Ogletree Deakins, Nash. Smoak & Stewart, P.C., No. 19-CV-0060 (C.D. Calif.), much has gone wrong. Dawn Knepper, who practiced here in San Antonio before she moved to Orange County, California, sued her employer, Ogletree Deakins for gender bias. The Plaintiff alleged violations of the Equal pay Act. She filed her suit in 2018.

In March, 2019, the California court ruled that Ms. Knepper must pursue her claims in arbitration. She had apparently not opted out of a firm-wide arbitration agreement. Ms. Knepper testified that she did not recall any such email asking her to either sign the arbitration agreement or to opt out. The former employer presented evidence indicating that she did receive the emails sent to all Ogletree Deakins employees. The 2016 emails was sent to all staff. In 2014, the law firm had started a similar arbitration program for equity shareholders. Of course, the firm described the program as an “Open Door Policy and Mutual Arbitration Agreement.”

There was evidence of an email from Ms. Knepper in 2016 saying she would turn in her form tomorrow. But, in 2019, she had no recollection of that email. Dawn Knepper was intended to be the class representative for a class action lawsuit against the Ogletree law firm.

The lawsuit was originally filed in the Northern District of California. But, based on those arbitration agreements, the employer sought a transfer to the Central District of California. The Plaintiff then tried to amend the claims, so as to strengthen the venue in northern California. At that point, Ogletree said if Knepper has a binding arbitral agreement, then amendment would be futile. See Bloomberg news report.

Later, the plaintiff tried to add three other female plaintiffs, based in Colorado and Texas. But, on July 30, the Central District dismiss those claims with prejudice and allowed the three women to withdraw their intervention in the Knepper lawsuit. Those three women then filed a separate class action lawsuit in California state district court in January, 2019. See ABA Bar Journal news report.

Yes, amigos, lawsuits can go wrong in a variety of ways. And, these were the experts. Dawn Knepper, like the Ogletree form itself, are employment law specialists. One notable allegation in the new lawsuit:

“On information and belief, when a female shareholder asked the Managing Shareholder of the Firm, Defendant Matt Keen, about the Firm’s response to gender discrimination complaints made by female employees, he explained: “we’re not real good at practicing what we preach.”

If true, that does not bode well for the employer.

In the military, it is has always ben understood that discipline is critical. But, what does that mean in actual practice? Proper discipline starts with the small things. Commanders eat last. Officers do not leave the bivouac area to go into town for a shower and a nice meal. Those small things matter. They create a climate in which the rules are observed and in which enlisted soldiers see value in following the rules.

When I deployed to Iraq in 2005, we replaced a civil affairs battalion headquarters that was completely ineffective. The staff members had all sorts of ongoing feuds among themselves. They had so many IG investigations, so many EEO complaints filed. For the two weeks we had to spend with those men and women, I found them to be completely unprofessional and petty. Not surprisingly, they were said to be largely absent from the civil affairs battlefield in their corner of Iraq during their time in country. A critical military asset was absent for 12 months.

So, it is perhaps not surprising that the SEAL Team which admitted it posed with dead Taliban, a clear violation of the rules of war, contineus to have issues. Eddie Gallagher was acquitted of the charge of killing a wounded Taliban prisoner, but he was found guilty of using with dead Taliban. He could hardly be acquitted of that charge, since the pictures were admitted as evidence.

And, now that same SEAL Team was kicked out of Iraq due to drinking and possible rape at Fourth of July party. Drinking alchohol is forbidden in Iraq. We show respect for the Moslem faith by not drinking alcohol. SEAL Team 7, it was revealed at Gallagher’s trial, also drank in country. Other Team members posed with dead Taliban. These are clear violations of long-time general orders.  See Navy Times report.

Command relationships in Special Operations forces are complicated. They tend to operate on a first-name basis, despite different ranks. But, we must wonder if allowing alcohol, allowing picture of dead Taliban will not lead to more serious allegations, such as rape.

SEAL Team 7 was sent home from Iraq. That is a big deal. Being redeployed means the leadership has lost all faith in your abilities. You have become so unreliable that you are seen as more trouble than benefit to the war effort.

Yet, Special Operations teams are absolutely critical in a counter-insurgencies, like the war in Iraq. The Navy sent them home, because the team would not cooperate in an investigation of the rape and the drinking. It is a pretty flagrant breach of discipline, when sailors will not cooperate with an NCIS investigation. Military discipline can slip away so easily. I fully support killing Taliban fighters. But, mugging in front of the camera: officers and Non-Commissioned officers saw that and looked the other way. It is an appalling lack of discipline.

A major law firm, Pepper Hamilton, conducted an investigation into claims of rape and sexual assault by female students at Baylor University. In 2016, the law firm found fundamental flaws in how Baylor University handled these claims. Coaches were fired over the scandal that emerged. Now, some of those women have sued the university. In that lawsuit, the 15 plaintiffs argue that Pepper Hamilton created a report regarding their findings. Pepper Hamilton denies it created any such report. The plaintiffs want a copy of that report.

The judge hearing the case, Robert Pitman, noted that emails and time entries for the law firm indicates that it did create a final report. He set for hearing the matter regarding why the law firm should not be sanctioned. Emails, noted the judge, between law firm lawyers mention “drafts of the overall findings and recommendations” and the “narrative of findings and recommendations.” Certainly, if the lawyers discussed a final report, then there must be a final report somewhere.

The subpoena for for the report has been outstanding since 2017. The Pepper firm failed to respond to the 2018 motion to compel and violated a deadline of March 15 to submit objections. Judge Pitman had ordered the law firm to produce the materials by April 11. Instead, the firm submitted a motion for reconsideration. See ABA Bar Journal report here.

That hearing was then held on June 21. Judge Pitman sanctioned the Pepper Hamilton law firm at that hearing. The law firm, even though not a party to the lawsuit, will have to pay the attorney expenses for the plaintiffs’ lawyers. At the hearing, a Pepper Hamilton senior counsel said the references to a final report concerned attorney work product. The judge said if the plaintiffs wished to pursue the mater, they can file additional motions. See ABA Bar Journal report here.

I would like to know what sort of attorney work product need not be turned over to the 15 plaintiffs. I expect they have the same question.

The Equal Employment Opportunity Commission has the mission of investigating employment discrimination. They also educate employers and others about the nation’s discrimination laws. They issue guidance to employers (and employees) on what discrimination looks like. The EEOC actually issues some very good, well-supported legal guidance. See this site for excellent articles on every aspect of discrimination. Those articles are for lawyers. For the layperson, see this site for general guidance.

Regarding discrimination toward immigrants, there is this website. This site provides various examples of what discrimination against immigrants looks like. One of those examples addresses discrimination against person based on his/her national origin:

Examples of potentially unlawful conduct include insults, taunting, or ethnic epithets, such as making fun of a person’s foreign accent or comments like, “Go back to where you came from, ” whether made by supervisors or by co-workers.

Yes, that is the phrase Pres. Trump used in regard to four female members of Congress. He said they should go back to the countries from where they came if they do not like this country. It apparently did not matter to him that all four women are United States citizens. Yes, if we could couple the President’s remark to some Hispanic person he had recently fired, we would have a grade A discrimination lawsuit.

The Americans with Disabilities Act requires all businesses and governments to make their facilities accessible to persons with disabilities. That includes deaf persons. What do hearing impaired persons need to access your facility? Well, they might need an American Sign Language interpreter. If a hearing impaired person requests an ASL interpreter, every business and every government agency is required to provide one. Some 30 years have passed since the ADA was enacted in 1990. Yet, so many folks are not aware of this requirement.

But, now the San Antonio Independent School Distrist understands that requirement. They just settled a case for $150,00, in which they did not provide ASL interpreters on multiple occasions. Cleto Rodriguez is deaf. He requested an ASL interpreter several times for meetings with his son’s teachers. The district never did provide an interpreter. See San Antonio Express News report.

Some folks will tell me, “well, can’t we just write notes back and forth?” The ADA specifies that the hearing impaired person can choose how to communicate, not the service provider. Some deaf persons, especially for key meetings like Parent-Teacher conferences, prefer an actual ASL interpreter. The challenge is that ASL interpreters cost money. They also need to be reserved in advance.

Another challenge is that some hearing impaired persons make a request for an interpreter and then do not show up for his/her appointment. That happened to me once. I paid for an interpreter for a hearing impaired person who did not appear. I learned that you may need to verify with the hearing impaired person will actually show up for the appointment.

The U.S. Commerce department advanced a reason for the citizenship question in the 2020 census. Department head, Wilbur Ross tried to claim the question was included to help enforce the Voting RightsAct. But, the lower court, in an opinion which was affirmed on appeal by the U.S. Supreme Court, found the reason to be “contrived.” That is, the lower court found the reason to be fabricated. See the decision in Commerce Department v. New York, No. 18-996 (6/27/2019) here. The district court judge was not happy to see the President’s tweet indicating the Administration would seek further reasons justifying the citizenship question.

This really should be obvious, but apparently it is not. Whatever reason the Administration comes up with now will also look contrived. It should be obvious that whatever the real reason was, it should have been advanced when this lawsuit started 18 months ago. We have to consider at this point that the Administration is remarkably incompetent. It is one thing to fabriacate reasons when a lawsuit is joined. But, to state publicly that your first reason failed, so you will now dig even deeper to find the “real” reason why you did something.  Engaging in such an exercise acknolwedges that you are again contriving.

The DOJ lawyers at that Friday meeting told Judge Hazel they were seeking alternative ways to include the citizenship question in the 2020 census. That means the lawsuit will proceed. See CNN news report.

Discrimination cases are similar. Employers will advance a reason for the termination – other than discrimination. If that reason fails, the employer is essentially done. Any additional, “new” reason will of course be suspect. There is a principle of law that an employer ought to know why it fired someone. If it changes reasons, that change in itself suggests prevarication.Just as a Commerce department ought to know why it included a citizenship question.

Yet, this administration persists in looking for a new reason. As if no one notices that they ought to know why they did something just two years ago in 2017…………