The Supreme Court must take some delight in reversing the Fifth Circuit. In a recent decision, the U.S. Supreme Court has once again reversed the Fifth Circuit. In Johnson v. City of Shelby, No. 13-1318 (5th Cir. 11/10/2014), the Supreme Court found that the Fifth Circuit applied the recent decisions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009), too rigorously. In Johnson, the Fifth Circuit had dismissed a civil rights claim for failure to plead the claim with adequate particularity. The Supreme Court found that the pleading was adequate regarding its legal theories of recovery. The Fifth Circuit, said the Supreme Court, had applied standards that were intended for factual pleadings to the legal statement of the cause of action.

Having informed the city of its factual basis, the plaintiff need do nothing more than “stave off threshold dismissal for want of adequate statement of their claim,” said the higher court. See the Supreme Court opinion here. See the pleading at issue here. Note that the Complaint does not even cite a particular statute regarding the theory of recovery. The Complaint refers to Title VII as basis for jurisdiction. But, the right of action could just as well include 42 U.S.C. §1983 or Title VII itself. Both statutes provide for protection from employment discrimination. The Complaint does discuss denial of procedural due process, suggesting the basis is intended to be §1983.

The higher court does explain that the federal rules do not countenance dismissal for imperfectly pleaded legal theories of the claim. The Supreme Court suggests the Fifth Circuit panel was “confused” by the Complaint. That is judge-speak for the Fifth Circuit panel mis-understood the Complaint. And, later in the brief opinion, the Supreme Court indicates the Fifth Circuit panel was too “punctilious” in dismissing this claim and should have allowed the plaintiff to amend his pleading. See Fifth Circuit opinion here.

The Supremes reached this result in a 9-0 per curium decision, indicating the Fifth Circuit’s opinion had little basis. It is strange that the appellate court did not allow amendment of the Complaint. The lower court granted summary judgment, apparently finding the claim should have been prosecuted under §1983. Instead, the plaintiffs had pressed their claim as a direct violation of the Fourteenth Amendment. After losing the summary judgment motion, the plaintiffs asked to amend their complaint to specifically plead §1983. In short, the plaintiff asked for a re-start. The district court said no. The Fifth Circuit agreed.

And, among the warnings that citing §1983 is not a mere formality, justice was lost. The courts essentially allowed the two individual plaintiffs to suffer because their lawyer overlooked a formalistic requirement.

 

 

 

We are seeing more and more lawsuits against an employee after s/he leaves an employer. Some of these suits have basis, some do not. In Schlumberger v. Rutherford, we see a lawsuit that lacked basis. Charlotte Rutherford was employed by Schlumberger as an in-house lawyer. She was privy to confidential, proprietary information in that capacity. She was the Chief of Intellectual Property Counsel when she left. Schlumberger is one of the largest companies providing technical services to the oil and gas industry. It holds numerous patents on a variety of devices. Ms. Rutherford left with positive performance evaluations.

She went to work for Acacia Research Corporation in May, 2013. Acacia, said Schlumberger, was a patent troll. It created nothing, but instead tried to make a claim for various patents so as to garner an easy settlement. Ms. Rutherford countered that Acacia was a patent licensing firm. Ms. Rutherford left on good terms. The Schlumberger General Counsel even referred one client to Ms. Rutherford after she left Schlumberger. 

Schlumberger filed its suit against Ms. Rutherford in March, 2014. This was apparently prompted by a lawsuit by Dynamic 3D against Schlumberger in February, 2014. Dynamic 3D is a subsidiary of Acacia. 

The court awarded Ms. Rutherford $350,00 in attorney’s fees and $250,00 in sanctions. 

In its suit, Schlumberger alleged that Ms. Rutherford downloaded confidential information from her work computer. In the Petition, it claimed that she inserted some ten thumb drives into her computer in her last few weeks at the firm. It claimed that she connected a backup external drive to her computer for the first time ever shortly before she left. It accused her of not retriunng the external hard drive and of not returning the thumb drives upon her departure. The firm did not point to any specific information which she allegedly took. It did not even mention in its Petition that she went to work for Acacia. The former employer accused her of breach of fiduciary duty, conversion, misappropriation of trade secrets, breach of contract, and violation of the Texas Theft Liability Act. The company was trying to squeeze in every possible theory of recovery. 

The former employer asked for a Temporary Restraining Order. It specifically asked that the TRO be granted ex parte (i.e., without notifying Ms. Rutherford herself). The firm obtained a TRO prohibiting the former Intellectual Property Counsel from using her information. Once, the former counsel learned of the TRO, Schlumberger then voluntarily dissolved the TRO. In effect, the former employer took actions designed to attract attention, so as to scare off other employers or entities based on nothing more than sham affidavits.

Ms. Rutherford moved to dismiss based on Strategic Lawsuits Against Public Participation (SLAPP), known in Texas as Texas Citizens Participation Act, Tex.Civ.Pra. & Rem. Code, §27.001-.011. 

The Acacia lawsuit was apparently based on publicly available information, but Schlumberger assumed Acacia used information from Ms. Rutherford. The court granted Ms. Rutherford’s motion to dismiss, apparently finding that Schlumberger’s investigation of Ms. Rutherford’s actions was simply very superficial. The Defednant also presented evidence that Schlumberger fabricated or greatly exaggerated facts regarding her supposed attempt to download confidential information. The ten thumb drives was based on an affidavit by the administrative assistant. But, when the administrative assistant was deposed, she testified she could not remember how many thumb drives Ms. Rutherford asked for.

The alleged change in backing up turned out to not be true. Ms. Rutherford actually started backing up her data on an external had drive two years before she left Schlumberger. The company claimed she left after receiving a poor performance evaluation. But, in fact, her last evaluation received the highest rating possible. 

The company pointed to an affidavit by an IT technician claiming that Ms. Rutherford had transferred ten gigabytes of data from her computer to an external hard drive. But, the same IT technician, however, testified in his deposition that nothing was transferred. 

Schlumberger claimed the devices were missing. Yet, the IT technician testified that he never looked for the supposed ten thumb drives or the missing external hard drive. he said no one ever asked him to look for the devices. He testified that he found nothing suspicious about Mr. Rutherford’s backing up. He considered it to be routine. And, the company could not point to any specific information which allegedly emanated form the former Chief Intellectual property Counsel. 

The Defendant also pointed to a prior case in which Schlumberger was sanctioned for another lawsuit against a former employee. 

If Ms. Rutherford did not assist Acacia with its lawsuit, what right was being infringed upon by the Schlumberger lawsuit. The Texas version of SLAPP accords protection regarding the freedom to associate and to petition. Ms. Rutherford is free to associate with those who she chooses. And, if she chooses, she is free to petition for a court for redress against those who cause her harm. If such lawsuits could occur, then the future Rutherfords will avoid working for certain employers. The future Rutherfords will find their employment opportunities very constrained.  

Schlumberger tried to scare off Acacia and Ms. Rutherford. In the end, they have been scared off. Too many of those TRO lawsuits work their evil with impunity. This time, the former employer lost. The former employer has filed an appeal. But, the facts of the case cannot now be changed.  

As a country, most of us subscribe to certain precepts. These certain precepts keep things running in our country. One of those precepts is that the U.S. Supreme Court is the final arbiter of constitutional issues. Over the last couple of centuries, most of us have come to accept that Supreme Court’s role in deciding those “big” issues. That was not always true. Through the 1850’s or longer, many government officials would take it upon themselves to judge the constitutionality or rightness of federal laws. Now, universally, we wait for the Unied States Supreme Court to resolve the big disputes. The decision in Roe v. Wade rocked that precept as much as any decision has. But, still, most U.S. citizens do not seriously question the Supreme Court’s role in United States society.

So, it is surprising to me that some groups have targeted attack ads against the United States Supreme Court. Fox and MSNBC will broadcast ads that attack the U.S. Supreme Court as the least transparent branch of government. Well, yea. That is why it is called the Supreme Court. Folks do not routinely get to listen to private deliberations by judges. It does not work that way.Judges think, research, discuss and then announce their decisions. There is no camera watching them deliberate.

But, the group known as Fix the Court wants changes. It asks that oral arguments be broadcast live, make public announcements of decisions, that judges post their financial disclosures online, adhere to the code of judicial ethics for federal judges, disclose public appearances and allow press coverage, and to report reasons for recusals. See ABA Bar Journal report.

It is true that Supreme Court justices do not report the reasons for their recusal. Sometimes, there is some mystery about why a particular justice recused himself/herself from a case. So far, that mystery has not affected a case in any way. And, in fact, most judges across the country do not explain why they recuse themselves either.

Broadcasting oral arguments and making announcements about a decision that has been released. Really? That has been discussed over and over. Many judges, not just the nine justices, refuse to allow cameras or microphones inside a court room. Judges are loath to give up any control over their courtroom. I cannot blame them. Civil discourse inside a courtroom is indeed a precious commodity. Emotions run high. Perceived slights are everywhere. Judges are right to guard closely their tenuous control of the courtroom.

Fix the Court has some agenda. That agenda does not include the efficient, fair process of justice. My guess is someone wants to “adjust” or fine-tune the relative independence of the judiciary. We may, and often will, disagree with particular decisions, but we should never reduce the independence of the federal judges.

There is a seamy side to lawsuits. I am sure this seamy side has been around ever since the Medieval days when representatives were hired because they were better criers. In the San Antonio Express News is a report about immigration lawyers who hire case runners, folks who go out and find clients. They lurk at immigration detention centers and refer clients to particular immigration lawyers. The lawyers pay folks to refer them cases. As explained in the Express News report, it is probably ethical to pay someone a salary, who then refers cases. It is probably okay to pay someone $50 per interview, but not okay to pay someone $50 to bring in a client. See San Antonio Express News report (account needed). 

In this context, ethics refers to the bar association’s code of ethics. The bar association’s system of ethics is well defined and generally, well understood. 

Ethical or not, it looks bad to most laypersons to pay someone to bring in clients, at all. Most of us look at lawyers as representing the keys to justice. So, case running is problematic as it is. It is much worse when a paralegal who has succeeded at bringing in clients starts her own paralegal business with her husband. Alejandra Driskell testified in deposition that she ran cases for three immigration law firms. Then, she went out on her own with her husband, George, to obtain a greater share of the profits. That is the ugly side of law. Practicing law has always been a business, but we like to think of it as something greater. 

George and Alejandra opened an office at One Riverwalk Place, a tony place in downtown San Antonio. Things must have gone well for a time, but in October, the Driskells filed for bankruptcy. 

Ms. Driskell has been sued by the Attorney General for practicing law without a license. The Driskells hired a lawyer, Amy Monkman. Ms. Monkman refused to respond to the Express-News’ requests to talk. Ms. Monkman worked for $45,000 for the paralegal. For that $45,000, she put her career and reputation at risk. One can only hope it was worth it. 

The health of workers will affect the amount an employer must pay for health insurance. The more ill a workforce is, the more the employer (and the employees) must pay for insurance premiums. That cost saving could lead to employers hiring only healthy workers. Or, it could cause employers to ask employees to take routine medical exams. One such employer, Honeywell, has indeed started asking employees to take medical exams. What happens if an employee refuses? That is the subject of a lawsuit filed by the Equal Employment Opportunity Commission. The U.S. District Court has ruled that Honeywell can keep requiring those tests. 

Honeywell’s tests include blood pressure, cholesterol, and glucose and indications regarding whether the employee has been smoking. The EEOC filed this lawsuit in Minneapolis last month. Employees who refuses to take the tests could be fined up to $4,000 in surcharges and additional health care premiums. Honeywell says it wants to protect those employees who maintain a healthy lifestyle. The employer says the healthier employees should not subsidize the less healthy lifestyles of other workers. See CBS News report. And, of course, Honeywell appreciates, I am sure, that lower costs affect its bottom line. 

The EEOC filed suit based on the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act. It seems to me the EEOC should also have included the Age Discrimination in Employment Act. I would expect many of those downtrodden, unhealthy workers are over the age of 50. 

A quick look at the lawsuit on Pacer shows that this ruling concerned a temporary restraining order. So, this issue is far from decided. 

Yes, in federal court, either party can be sanctioned for its conduct during a lawsuit. Sanctionable conduct must be pretty egregious. National law firm, Littler Mendelson requested sanctions against a plaintiff who lost a summary judgment motion. Elaine Barley had sued Fox Chase Cancer Center in Philadelphia. Ms. Barley alleged that Fox did not accommodate her disability of asthma. In moving for summary judgment, the employer argued that Ms. Barley could not claim she could work with accommodation, since she had applied for Social Security disability saying she could not work. The U.S. district court granted summary judgment on that basis.

But, after winning the summary judgment motion, Littler Mendelson then moved for sanctions. The defense firm cited Federal Rule 11 and said Ms. Barley should have known much sooner that her case would not succeed. Its a frivolous motion under most standards. But to make matters worse, the defense firm redacted or blacked out almost every line of his affidavit. As part of his Rule 11 motion, the defense lawyer must list in detail the work performed for the client. The more detail, the better for the request. Fox requested some $126,000 in attorney’s fees. Yet, the defense firm reeducated almost every line. Asking for $126,000, there were many, many lines to redact.

So, Judge Dalzell responded with his own sanctions. He sanctioned the law firm for filing vexatious motions with the intention to harass the plaintiff. Filing such a motion makes little sense. The employer has already won. To then file a motion which is mostly redacted suggests pure harassment. The plaintiff could not respond to the request for attorney’s fees, because it could not identify what the defense lawyers had done. The judge said the motion was so deficient that it was filed for the purpose of harassing the already defeated plaintiff. The defense lawyer mentioned in a footnote that he could provide more detailed information later. But, said the Judge, it is too late. That ship has sailed. The defense lawyers guarded their services as if they were “top-secret information involving national security,” said the court.

The Judge awarded sanctions under Section 1927. Richard Harris, the lead lawyer, said they would appeal. See ABA Bar Journal report.

My guess is the defense lawyer wanted to punish the plaintiff and just did not have time to prepare a proper affidavit with good detail. Or, he may have inflated the bill to his client so much that he did not have time to clean it up. In any event, he should not have filed such a deficient motion.

You have to love free enterprise. Only a true entrepreneur would come with a system of turning legal advice into a drive through window. Avvo, the legal referral website, now offers 15 minutes of legal advice for a mere $39. The service applies to a variety of areas of law: immigration, criminal, divorce, family, employment, landlord-tenenat, real estate and small business. Avvo seems to have selected every area a consumer might need. I have to say, after 15 minutes, I am still waiting to hear the essentials of an employment case. The service is available in 15 states, including Texas. See ABA Bar Journal report.

I am sure 15 minutes would work for some occasions, but if someone really has a case, 15 minutes is the beginning of the discussion, not the end. Maybe, we should just set up shop with a drive-in window and offer a free apple pie with that order….

An acquaintance passed away recently. His passing brought to mind the high school I graduated from in 1975. Mike Gallagher graduated from John Marshal High School a couple of years before I did. He was a football player, and an officer in the Fellowship of Christian Athletes. In other words, he was at the top or near the top of our high school social order.  He would have started attending Marshall about the same time as the University of Texas won the national championship in 1969 with the last all-white team. 

In talking about his passing, a few alumni offered stories about Mike. One story caught my attention.  Another student was Mormon. We did have a few Mormon students at our school, not that I ever noticed at the time. The Mormon student, we can call him Ray told this story about Mike: not many people harassed Ray about being Mormon. But, in this one class, there was one boy who harassed Ray everyday. One day, when the teacher was out of the room, the boy got particularly loud and obnoxious. Ray did not know what to say. But, Mike did. He got up in front of the room and told the boy to shut-up. He was tired of hearing him. Mike was a big guy, physically and otherwise. The boy shut up.

We had Hispanic students and a few black students. But, the culture at John Marshall High School in the 1970’s was definitely cowboy. It had always been a cowboy school. And, even in the 70’s. with dozens of new suburbs in the district, the cowboys still ruled the roost. I did not notice it at the time, but there must have some major social change in San Antonio’s rural northside in the 1970’s with all these suburban kids and minorities, including Mormons, showing up. In my class of 1975, we had a black cheerleader. Looking back, she must have been the first ever at our school. But, no one ever suggested there was anything unusual about having a black cheerleader. Everyone loved Rita Crockett. What was there to question?

One would think there might have been some prejudice against the growing Mexican-Amrican population and the incoming black students. But, there was very little. I recently asked a fellow alumnus, who is Mexican-American, and he could not recall any overt bias against Hispanics. The best reason we could arrive at was the cowboy culture. 

A true cowboy takes everyone on their own merits, for good or ill. An old saying in the West goes something like this, "I do not care if he has polka dot hair and green skin, if he’s there when I need him, he’s ok." Like most high schools, football was king at our school. And, that was certainly true in football: If you are there when I need you, then you are ok. And, sure, a great many of the cowboys played football. I think the working world would be much better off with a few true cowboys. 

We went into the Iraq War on the cheap. We entered that war with the smallest number of troops possible. So, that lead to the US relying on private security firms for a number of missions. One such mission was providing security for the diplomats. Four Blackwater security personnel were found guilty last week after they killed 17 Iraqi civilians. One was found guilty of murder. The others were found guilty of manslaughter. See CBS news report. The guards opened fire on a crowded Baghdad street intersection after they claim to have heard shots fired. 

I was not impressed with Blackwater when I was in Iraq. They moved into our building on FOB Speicher. Ignoring the appropriate chain-of-command, they began to erect exterior stairs without first seeking permission from any authority. They were forced to stop work on the stairs mid-way through the project. Later, when someone from my staff section was checking something on the roof, they found that Blackwater had tapped into our internet feed – again without seeking permission or consent. 

Even for uniformed soldiers, with good training ad supervision, it is hard to never shoot an unarmed civilian in that sort of war. Young soldiers, or unclear situations can lead to accidents. For mercenaries, the challenge is much different. 

Service in a war zone is not too different than a trip to Las Vegas. It is tempting to slip into the "what happens in Vegas stays in Vegas" syndrome. Not only are you far from home, but you feel a lot of power when you hold that .50 caliber machine gun in your hands. The mercenary soldiers feel the same things, apparently, and feel little of the discipline required of uniformed soldiers. We can contract out guns and vehicles. But, contracting out good order and discipline is much more difficult. 

I wrote before about Judge Edith Jones, who has been accused of making racist comments at a Federalist Society meeting. See my prior post here. She allegedly stated that certain racial groups, such as African-Americans and Hispanics, are "predisposed" toward crime. Most judges might get away with making those sorts of statements, if they were not already known to be as conservative as Judge Jones. The Fifth Circuit jurist has demonstrated an antipathy toward employment plaintiffs in the past. Various legal groups filed a complaint regarding her remarks.

Well, now, the investigation has found that she did not violate any canons of judicial ethics. The groups who filed the complaint have appealed. See Judge Kopf’s comments about the investigation here. Judge Kopf finds the complaints about her remarks to have been over-stated. The complaint was investigated by a panel selected by the District of Columbia circuit. Judge Kopf finds their report to be well drafted. You can follow his link to look at the complaints and the judges’ report. 

In reviewing the affidavits, I see where two attendees said Judge Jones specifically did not say certain races are prone to violence. But, three listeners, one of whom was self-reported as African-American, did report that she said certain races were "prone" or "predisposed" to violence. When one attendee asked the judge to clarify, she backed off her initial statement. She explained that she meant that certain races committed more crimes. Oh. Ok. 

All I can say is that Judge Jones, as Judge Kopf mentions, is opinionated – in my opinion, too opinionated for a federal judge.