California Law Firm Subpoenas for Identity of Negative Reviewers

Glassdoor Logo

A California lawyer is determined to find out the identity of those leaving anonymous negative reviews about his law firm on the job listing website Glassdoor.com. Alleging the reviews are defamatory, the name partner of California law firm Layfield & Barrett is fed up with authors claiming to be current and former employees of the firm.

Spitting Venom Anonymously

Attorney Philip Layfield filed a defamation case last month in Los Angeles County Superior Court against 25 “John Does” over anonymous Glassdoor reviews. Layfield believes former employees who “spew false information” and “spit their venom” on websites such as Glassdoor.com should have to answer for their conduct. Layfield and the firm also subpoenaed the website for identifying information about the authors of 12 different posts.

One reviewer wrote, “For the love of God, do NOT work here.” Another reviewer said working at the firm was “psychological torture.”

Layfield filed the subpoena because, in order to move forward with his defamation claims, he must know the identity of the reviewers. Layfield’s subpoena requested all documents that “state, list, describe, or refer to identifying information” related to the people who authored the posts. Glassdoor is not a defendant to the defamation claims, likely attributable to Section 230 of the Communications Decency Act. Under the Act, interactive online services are immunized from liability stemming from content uploaded by site users.

“People need to realize that just because you are sitting anonymously behind a keyboard, you can’t break the law,” Layfield said. “We are going to obtain the identities of these cowards and bring them to justice.” Glassdoor disagrees, however due to its standard practice “to fight on our users’ behalf to protect their anonymity and rights to free speech.”

First Amendment Protection

Generally, people have a First Amendment right to speak anonymously. People can count on anonymity as long as they don’t do things to lose First Amendment protection. The First Amendment doesn’t shelter people who engage in cyberbullying, reveal trade secrets, or make threats.

Layfield said in a statement,

“With respect to the lawsuit filed, here is the reality. Our law firm has approximately 150 employees and 35 attorneys. We demand the best of the best. Many people lie about their skills, their experience and their desire to be the best when they interview. We pay top dollar for candidates and many of our attorneys earn in excess of $1 million per year. When people are lazy or incompetent, they either quit because the writing is on the wall or they are terminated. Unfortunately, most of those people are unwilling to recognize their shortcomings and they turn to anonymous blogs to spit their venom. The reality is that they should be upset with their parents for raising lazy and incompetent young adults, but they choose to spew false information on blogs such as Glassdoor. The majority of these posts contain blatantly false information. We are going to obtain the identities of these cowards and bring them to justice.”

 

Unfortunately for Layfield, a majority of the reviews on Glassdoor are just opinions, which are not enough to support a defamation claim. One review, which comes close to defamation, alleges that Layfield is unethical. Without more, however – such as citing a specific provision of the ethics code – even this comment will likely be construed as an opinion.

Layfield’s suit will thus likely be riddled with obstacles.

Speedo “Suit” Proceeds to Trial for 66-Year-Old Attorney Plaintiff

roy-lester

A 66-year-old attorney’s Speedo-style swimwear lawsuit was revived by a New York appellate court and the attorney’s case will now proceed to a trial.

The New York Supreme Court Appellate Division, Second Department, determined the defendant – and former seasonal employer – parks and recreation department failed to provide a legitimate reason as to why Roy J. Lester of Lester & Associates PC was required to wear a Speedo-style swim brief for a lifeguard certification test.

Boxers or Briefs

Plaintiff Roy Lester held a seasonal job at the Jones Beach State Park when he lost his job at age 57 in 2007. Lester asked to take his lifeguard recertification while wearing a bicycle-short style swimsuit rather than a state-issued lifeguard racing brief. Lester again attempted to take a new hire lifeguard certification test in 2008, but his request to take the exam in the more modest suit was again refused by the parks department.

Lester worked for many years as a seasonal lifeguard at Jones Beach. Prior to 2007, Jones Beach did not place any restrictions on the type of swimsuit a candidate could wear while taking either the new hire or rehire lifeguard test.

After being denied rehire based on his swimsuit style twice, Lester filed an employment discrimination suit alleging he was discriminated by Jones Beach based on his age. Lester alleged he was the oldest applicant to show up to take the lifeguard test and that he was discriminated against for wearing a swimsuit commonly worn by older individuals.

Lester also alleged, and the appellate court agreed, that younger applicants were wearing various different types of swimsuits and – unlike him – were not prohibited from taking the test. The New York appellate court determined the parks department failed to demonstrate a legitimate reason why Lester could not wear a more modest swimsuit of his choice.

Proceeding to Trial

“The defendant failed to eliminate all triable issues of fact as to whether it had legitimate, nondiscriminatory reasons for refusing to allow the plaintiff to take the test for new hires in a ‘jammer’ [boxer-style] swimsuit.” The appellate panel’s decision reversed that of Justice Michele Woodard of the Nassau County Supreme Court. Justice Woodard granted a motion for summary judgment in favor of the state in 2014.

The appellate division additionally felt trial was necessary on the plaintiff’s part. “The plaintiff also failed to demonstrate his entitlement to judgment as a matter of law since he did not eliminate all triable issues of fact as to whether the defendant’s reason for not allowing him to wear a “jammer” during his new hire test was legitimate and nondiscriminatory or pretextual.”

Since neither party was entitled to summary judgment, Lester’s case will now proceed to trial.

The New York State Office of Parks, Recreation, and Historic Preservation is represented by Valerie Figueredo and Andrew Ryhs Davies of counsel for the New York State Office of the Attorney General.

Lester is represented by Roy J. Lester pro se of counsel and Gabriel R. Korinman of counsel of Lester & Associates PC.

The case is Roy J. Lester v. New York State Office of Parks, Recreation and Historic Preservation, case number 2014-03835 (index number 10863/09), in the New York Supreme Court Appellate Division, Second Department.

Florida Court Levels Playing Field in Workers’ Compensation Suit

Fraternal Order of Police

The First District Court of Appeals of Florida ruled that a section of the state workers’ compensation law is unconstitutional. The appeals court held the law violates workers’ guarantees of freedom of speech and association, and additionally blocks workers from obtaining legal counsel.

Inability to Find Counsel

The provision of the workers’ comp law requiring that an attorney can receive a fee based only on a percentage of the award secured for the client violated the constitutional rights of City of Edgewater Police Officer Martha Miles, who was injured on the job by inhaling methamphetamine fumes.

Plaintiff Martha Miles filed a workers’ compensation claim alleging that in 2011 she was twice exposed to toxic chemicals used to make crystal methamphetamine. Miles said the exposure aggravated her asthma to the point that it affected her work.

Turning to the Fraternal Order of Police Lodge 40 for help in paying for an attorney, Miles managed to work out a deal with Michael J. Winer of Michael J. Winer PA and Geoffrey Bichler of Bichler & Kelley PA. However, Judge of Compensation Claims Mark Massey found that the statute prohibited the union from paying a retainer to the firm.

Miles could not find any counsel to agree to sign on for the fees allowed under the workers’ compensation statute and, according to her attorney Michael Winer, Miles was also unable to prove her claims before the Court of Compensation Claims on her own.

The potential sum for Miles’ counsel was so small several attorneys turned down representation because they could not afford to take her workers’ compensation case. The First District said the affidavits filed by six attorneys supporting Miles’ argument demonstrated that it is not economically feasible for an attorney to take on a case as complex as workers’ comp exposure claim when the likelihood of getting paid is so uncertain.

Infringement of Constitutional Rights

The First District agreed that Miles’ constitutional rights had been infringed upon with little public benefit to justify such a restriction on the free speech rights of workers. The appeals court said:

“To the extent these statutes prohibit a workers’ compensation claimant (or a claimant’s union) from paying attorneys’ fees out of their own funds for purposes of litigating a workers’ compensation claim, these statutes are unconstitutional, because they impermissibly infringe on a claimant’s rights to free speech and to seek redress of grievances.”

 

“The statutes’ restrictions on a claimant’s ability to contract for legal representation to obtain benefits no longer promote the health, safety, welfare or morals of the public when, as demonstrated here, an injured worker is unable to secure benefits to which she could potentially otherwise be entitled under law, because of the statutory restrictions on attorney compensation,” determined Judges L. Clayton Roberts, James R. Wolf, and Bradford L. Thomas, who sat for the First District.

Miles’ counsel believes this monumental worker-friendly decision will act as a huge “leveling of the playing field” for workers injured on the job across the state.

The case is Miles v. City of Edgewater Police Department et al., case number 1D15-165, in the First District Court of Appeal of Florida.

On-the-Job Death Toll Compells More Safety Regulations for Workers

AFL-CIO

The American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) reported 63 deaths on the job last year in Massachusetts in its annual report on deaths in the workplace. The annual report, “Dying for Work in Massachusetts,” was released in conjunction with a ceremony at noon outside the State House.

The State House held the ceremony “to remember those who died or were injured while working in 2015, and to call for changes aimed at creating safer conditions on job sites.”

The American Federation of Labor and Congress of Industrial Organizations is a national trade union center and the largest federation of unions in the United States. This year marks the 25th anniversary the AFL-CIO has produced a report on the state of safety and health protections for America’s workers.

The High Toll of Death on the Job

Last year, 63 workers died on the job in Massachusetts alone. Fifty-five of the workers classified as on-the-job fatalities either died or were killed while working. The remaining eight workers were firefighters who died from work-related diseases.

The average age of workers killed by injuries in 2015 was 47. Workers in their twenties accounted for 16% of all fatal injuries, the AFL-CIO reports, while workers 60 and older accounted for 27% of all fatal injuries.  The report described the construction sector as “one of the most dangerous for workers,” with 18 on-the-job fatalities in Massachusetts last year.

While the report provides 226 pages packed with numbers and statistics, JDSupra points out that “Anytime we talk about death in terms of numbers and statistics, the individuals who form the data are unavoidably obscured, their deaths become abstractions, and we have difficulty seeing the deceased as the daughters and sons, the brothers and sisters, the mothers and the fathers, the neighbors and friends they were.”

  • Dr. Michael Davidson was seeing patients at Brigham and Women’s Hospital when he stepped away to talk with the son of a deceased woman he had treated and the son shot him.
  • Lawrence O’Leary was on a parking garage under construction at Logan Airport when he fell off the building.
  • David Sutherland was trying to get from his sinking fishing boat to a rescue boat in the ocean off Gloucester.
  • Joseph Brady was crossing a road to a lot in Stoughton where he was selling Christmas trees when he was run over.
  • Lenore Travis was operating a tractor on her small family farm in Lincoln when the vehicle flipped over.

In addition to Dr. Davidson, a revered cardiac surgeon, the report notes that five persons lost their lives through violence in the workplace.

  • A delivery man and a taxi driver were both robbed, shot, and killed.
  • A sous chef was stabbed with a 12-inch sushi knife by a co-worker.
  • A clerk was found shot in the parking lot of a cell phone store.
  • A young man participating in a job-ready program was shot and killed by a rival while shoveling snow.

Safety on the Job: Oversight and Enforcement

More than 532,000 workers now can say their lives have been saved since the passage of the Occupational Safety and Health Act of 1970, which promised workers in this country the right to a safe job. Since that time, workplace safety and health conditions have improved but at the same time some conditions have gotten worse and too many workers remain at serious risk of injury, illness or death.

Occupational Safety and Health Administration (OSHA) resources are still too few and declining with only 1,840 federal and state inspectors to inspect 8 million workplaces. This means there are enough inspectors for federal OSHA to inspect workplaces once every 145 years, on average, and state OSHA plans have enough to inspect workplaces once every 97 years.

The current level of federal and state OSHA inspectors provides one inspector for every 74,760 workers.

Despite a new law that will allow OSHA to increase its penalties for workplace safety and health violations, penalties are still too weak to be an effective deterrent for some employers and large corporations.

AFL-CIO contends the solution is obvious: “Very simply, workers need more job safety and health protection. The nation must renew the commitment to protect workers from injury, disease and death and make this a high priority. We must demand that employers meet their responsibilities to protect workers and hold them accountable if they put workers in danger. Only then can the promise of safe jobs for all of America’s workers be fulfilled.”

View the 2016 edition of “Death on the Job: The Toll of Neglect” here.

Fourth Circuit Agrees With Transgender Teen on Title IX Bathroom Issue

Gavin Grimm

The Fourth Circuit court ruled in favor of 16-year-old Gavin Grimm.

Virginia transgender teen Gavin Grimm has won a battle against his school board for the right to use the boys’ bathroom, a potential game changer in the national debate over Title IX and gender identity.

The Fourth Circuit court ruled in favor of 16-year-old Gavin Grimm, reversing the lower district court’s decision. Grimm claimed the Gloucester County School Board violated Title IX, a law banning sex discrimination in schools, when the board prevented him from using the boys’ restroom.

“It’s a complete vindication for the Education Department’s interpretation of Title IX,” said Joshua Block, the American Civil Liberties Union (ACLU) lawyer who represents Grimm.

Federal Funding Prohibits School Discrimination

In siding with high school junior Gavin Grimm, the U.S. Court of Appeals for the Fourth Circuit deferred to the U.S. Education Department’s position that transgender students should have access to the bathrooms that match their gender identities rather than being forced to use bathrooms that match their biological sex.

The Department of Education has said that requiring transgender students to use a bathroom that corresponds with their biological sex amounts to a violation of Title IX, which prohibits sex discrimination at schools that receive federal funding.

In a 2-to-1 decision, the Fourth Circuit remanded with instructions for the lower court to rehear the student’s claims that the Gloucester County, Virginia, school board’s bathroom policies — which restrict transgender students to using a separate unisex bathroom — violate federal law. The circuit judges also ruled that the lower court should reconsider a request to allow Grimm to use the boys’ bathroom at Gloucester High School throughout the case’s pendency.

Which bathrooms transgender people can use has become a divisive political issue in several states, including South Dakota, Texas, Illinois, Mississippi, and Virginia. In North Carolina, a law banning local protections for gay and transgender people — a measure focused on bathrooms but with major negative implications for state employment law claims — has sparked protests, boycotts and calls for an immediate repeal.

A Nationwide Bathroom Debate

Public bathrooms have become the latest battleground in the fight for LGBT rights, with conservative activists and some state lawmakers pushing restrictions that prevent transgender people from using bathrooms in accordance with their gender identity. Activists have used the bathroom debate as a venue for taking away broader civil rights protections, arguing that allowing transgender people into the supposedly safe spaces of single-sex bathrooms creates dangerous scenarios by violating privacy and disturbing common sense.

Incidentally, the Fourth Circuit Court of Appeals also includes the state of North Carolina. That means Grimm’s victory sets a precedent for students who might challenge North Carolina’s new HB2 law that prohibits transgender people from using public restrooms for the gender with which they identify.

Constitutional lawyer Page Pate said, “This opinion is binding on all the states in the 4th Circuit,” which includes Maryland, Virginia, West Virginia, North Carolina, and South Carolina. The country’s other federal appeals courts are not necessarily obligated to follow the Fourth Circuit’s ruling, but they are supposed to consider it when deciding similar cases.

The issue that has been at the center of state-level debates in recent months, most notably in North Carolina, has sparked protests and economic boycotts in the state. A transgender university student and employee already have sued to overturn the new law and the Fourth Circuit’s ruling could bolster their argument that bathroom restrictions are discriminatory.

Duke University leaders this week publicly condemned “in the strongest possible terms” the North Carolina law and called for its repeal. McCrory recently said in a video statement posted online earlier this week that he disagreed with the Fourth Circuit’s ruling, calling it a “bad precedent.”

The Fourth Circuit judges wrote that interpretations of federal discrimination policies should be left to politicians, in this case the Obama administration’s Department of Education. The court ruled that Grimm has an argument that his school board violated his rights based on those interpretations, but the court did refrained from answering whether transgender students faced discrimination in Gloucester, leaving that question to the lower court on remand.

“At the heart of this appeal is whether Title IX requires schools to provide transgender students access to restrooms congruent with their gender identity,” the court’s opinion said. “We conclude that the Department’s interpretation of its own regulation as it relates to restroom access by transgender individuals, is to be accorded controlling weight in this case.”

“I think this is going to be a wake-up call for legislators,” said Peter Renn, an attorney for an LGBT advocacy group. He said he believes that lawmakers contemplating bathroom restrictions for transgender people are “essentially on a collision course with federal law and federal courts.”

Read the opinion here.

Xarelto Multidistrict Litigation Proceeds as Case Filings Increase

Blood Thinner

Case filings are gradually increasing in the Xarelto blood-thinner mass tort litigation.

The drug, which was originally approved by the FDA in 2011, was a popular alternative to other more traditional anticoagulants, largely because it required no drastic dietary alteration, little monitoring, and no adjustment to dosage. It has since received negative attention in the legal world, with more than 3,124 complaints filed or transferred into the multidistrict litigation docket.

Harmful Side Effects Experienced by Users

Multidistrict litigation (MDL) refers to a special federal legal procedure designed to speed the process of handling complex cases, such as air disaster litigation or complex product liability suits. MDL is helpful in mass tort cases like this because it allows attorneys to participate in discovery and litigate common factual issues efficiently and effectively for their respective clients.

Xarelto (Rivaroxaban) is a prescription anticoagulant medication that prevents the formation of blood clots by blocking certain clotting proteins in blood. Three additional indications of use for Xarelto are:

  • Used in people with atrial fibrillation (heart rhythm disorder) to reduce the risk of stroke caused by a blood clot.
  • Used to prevent/treat deep vein thrombosis (DVT) and pulmonary embolism (PE).
  • Used to reduce the risk of the formation of blood clots in the legs (DVT) and lungs (PE) after hip or knee replacement surgery.

Defendants in the MDL include Bayer Healthcare, the designer and manufacturer of Xarelto. Janssen Pharmaceuticals (a Division of Johnson & Johnson) currently sells Xarelto in the United States pursuant to a licensing agreement with Bayer. Plaintiffs involved in the MDL have suffered various harmful side effects, including:

  • Gastrointestinal Bleeding,
  • Intracranial Hemorrhage,
  • Hemorrhagic and Other Severe Internal Bleeding,
  • Stroke, &
  • Death (due to one of the aforementioned injuries).

In January 2015, the U.S. Judicial Panel for Multidistrict Litigation consolidated MDL 2592 in the Eastern District of Louisiana (New Orleans) before The Honorable Eldon E. Fallon. Four bellwether trials have been selected and are slated to occur in early 2017. MDL developments will continue to be reviewed in monthly status conferences.

Bellwether trials are an increasingly common phenomenon in U.S. legal practice. Bellwether trials are especially common in MDL practice. In MDL cases, it is not practical to prepare every case for trial. For efficiency, several matters are selected as bellwether cases and prepared for trial. They are then settled or tried and the results are used to shape the process for addressing the remaining cases.

A bellwether trial is designed to be a value ascertainment function for settlement purposes or to answer troubling causation or liability issues common to a universe of claimants. For the tried cases to achieve these purposes, they must be similar and representative of all cases.

Case Filings Continue to Rise

Philadelphia has experienced a significant increase in Xarelto case filings in recent years. From March to October 2014, only a handful of cases were filed each month, the most being five in September 2014. However, in November 2014, the number spiked with 19 new cases filed. In December 2014, 26 cases were filed, followed by 17 in January 2015, 37 in February, and 50 in March.

Philadelphia is not the only state that has experienced a sharp increase in Xarelto MDL. In Louisiana, 2,800 suits were combined by the JPML as MDL No. 2592. Pennsylvania has also merged 550 plaintiffs’ cases to form a mass tort litigation program in the Philadelphia Court of Common Appeals. The majority of the cases consolidated into MDL No. 2592 allege that the drug places patients in danger of sudden and catastrophic bleeding events. Additionally, MDL plaintiffs claim that the makers of the drug concealed the negative traits of Xarelto through unsound business practices, while touting its positive attributes to the public.

The first bellweather trial is scheduled for February 6, 2017.

Wisconsin Court Strikes Down Right-to-Work Law in Favor of Unions

Unions

Labor unions and their supporters rallied in the rotunda of the Wisconsin State Capitol in opposition to the right-to-work law.

Wisconsin’s right-to-work law, heralded by Republican Gov. Scott Walker as he was mounting his run for president, was struck down as violating the state constitution. The Wisconsin law, which barred unions from requiring workers in the private sector to pay the equivalent of union dues, was deemed a violation of the state’s Constitution by Judge C. William Foust of Dane County Circuit Court.

An Unconstitutional Taking

Three unions – Machinists Local Lodge 1061 in Milwaukee, the Wisconsin AFL-CIO chapter, and United Steelworkers District 2 in Menasha – filed the lawsuit last year shortly after Gov. Walker signed the right-to-work bill into law. Right-to-work laws prohibit businesses and unions from reaching agreements that require all workers, not just union members, to pay union dues. Twenty-five other states currently have such laws. Attorney Erin Mediros represents all three unions.

The unions argued that Wisconsin’s law was an unconstitutional seizure of union property since unions now must extend benefits to workers who don’t pay dues. Dane County Circuit Judge William Foust agreed that the right-to-work law amounts to the government taking union funds without compensation since under the law unions must represent people who don’t pay dues.

“While (union) losses today could be characterized by some as minor, they are not isolated and the impact of (the law) over time is threatening to the unions’ very economic viability,” he wrote. Judge Foust wrote that the right-to-work law presents an existential threat to unions. Noting that no other state court had struck down a right-to-work law on the same grounds, Foust made it clear he was not obligated to follow the decisions of other states.

Plans to Appeal

Republicans who backed the law dismissed the ruling, saying it will be reversed.

“Once again, a liberal Dane County judge is trying to legislate from the bench,” Assembly Speaker Robin Vos (R-Rochester) said in a statement. “No one should be forced to join a union or pay union dues as a condition of employment.”

Wisconsin Attorney General Brad Schimel promised to appeal the decision. Also Republican, Schimel said he was confident it would not stand. Schimel has not made a decision on whether to seek an immediate suspension of the ruling while the appeal is pending.

Gov. Walker took to Twitter upon hearing the court’s decision to write, “We are confident Wisconsin’s freedom-to-work law is constitutional and will ultimately be upheld.”

Unjust and Unconstitutional

The industrial Midwest – a region where organized labor has been weakened by a series of new laws in recent years – hailed the decision as a victory for the middle class and working families. Democratic and union leaders cheered the ruling, but its fate may be uncertain due to the widespread Republican discussion of appeal.

“The extreme right-wing Republican agenda has been incredibly harmful to working people and businesses in Wisconsin,” said Democratic Assembly Minority Leader Peter Barca.

Phil Neuenfeldt, president of the Wisconsin AFL-CIO, said the ruling was a “needed check on Scott Walker’s attacks on working families.” “Right to work has always been unjust, now it’s proven unconstitutional,” he said.

Supporters of right-to-work laws view them as giving workers the freedom to choose whether to join a union. Opponents believe the laws weaken unions by depriving them of the dues from workers who choose not to pay them, resulting in lower wages and fewer employee rights. Opponents also believe the Republican-backed law is intended to undermine unions’ political power because unions tend to vote Democrat.

“Labor is a commodity that can be bought and sold,” Judge Foust wrote in his ruling. “A doctor, a telephone company, a mechanic — all would be shocked to find they do not own the services they perform,” he said, adding later: “Unions are no different; they have legally protectable property interest in the services they perform for their members and nonmembers.”

Second Circuit Revives Class Action Against Drug Giant Pfizer

Pfizer

The Second Circuit revived a securities class action against Pfizer over the alleged hidden health risks of two of its drugs. The Second Circuit found that the lower court improperly excluded the plaintiffs’ expert witness from testifying erred when it granted the drug manufacturer summary judgment.

Error in Excluding Testimony

The federal appeals court remanded the case for further proceedings, saying District Judge Laura Taylor Swain overstepped when she barred the plaintiffs’ expert from testifying at the scheduled 2014 trial. The testimony would have focused on loss causation and damages associated with Pfizer Inc.’s alleged misrepresentations about the cardiovascular risks of its arthritis pain drugs Celebrex and Bextra.

Concerns about the safety of Celebrex and Bextra mounted in late 2004 when rival Merck & Co withdrew its own Vioxx drug because of associated cardiovascular risks. Pfizer pulled Bextra from the U.S. market the following April, and agreed in September 2009 to pay $2.3 billion to settle a U.S. Department of Justice probe into the marketing of Bextra and other drugs.

Shareholders accused the New York-based company of having concealed tests that began in 1998 and suggested health risks associated with Celebrex and Bextra.

The Second Circuit held Judge Swain was wrong to conclude that jurors could not find Pfizer liable for statements by G. D. Searle & Co and Pharmacia Corp, which previously made Celebrex and Bextra.

Judge “Already Decided” Pfizer Not Liable

Writing for the appeals court, Circuit Judge Debra Ann Livingston said Swain “went astray” in excluding Fischel’s expert testimony because of his failure to “disaggregate” alleged misrepresentations by Pfizer that may have inflated its stock price from any misrepresentations by Searle and Pharmacia.

Judge Swain excluded University of Chicago Law Professor Daniel Fischel from testifying on behalf of the plaintiffs in May 2014, and then dismissed the case on summary judgment in July 2014. The dismissal came after the defendants argued that the investors could no longer sustain key elements of its claim.

Judge Swain’s stated reasons for excluding the expert were that she had already decided that Pfizer was not liable for the alleged misrepresentations by companies that manufactured Celebrex and Bextra prior to Pfizer. Judge Swain also ruled that Fischel had improperly adjusted his study of Pfizer’s stock price after she determined that two of the trading days under study weren’t linked to the alleged fraud.

“We conclude that the district court erred in its earlier summary judgment ruling that no reasonable jury could find Pfizer liable for certain statements made by companies that owned the drugs before Pfizer,” the Second Circuit wrote in an opinion by Circuit Judge Debra Ann Livingston.

“Plaintiffs’ theory is directly contrary to this idea: they argue that Pfizer is liable for all the artificial inflation related to Celebrex and Bextra because, through its own fraudulent conduct, Pfizer concealed the same information as its predecessors,” Livingston wrote. In that context, she added, “Fischel’s testimony can be helpful to the jury.”

Battle of the experts

Circuit Judge Rosemary S. Pooler questioned how Judge Swain, after initially upholding the lawsuit and certifying the class of plaintiffs, could have effectively tossed the claim over an expert report just months before it was set to go to trial. “Why isn’t this just a battle of experts for the jury to decide?” she asked at the hearing.

Judge Livingston’s 63-page opinion for remand expanded on the Second Circuit’s concerns. Among other things, she said the district court had abused its discretion when it excluded Fischel’s testimony. The district court also incorrectly decided that Fischel had needed to untangle the market effects of Pfizer’s allegedly fraudulent statements from the effect of statements by Celebrex’s and Bextra’s prior manufacturers, regardless of whether Pfizer would be liable for these as well.

“As for Fischel’s adjustment to the price increases, the district court did not abuse its discretion in concluding that this change was not sufficiently reliable to be presented to a jury,” Judge Livingston wrote. “However, Fischel’s error did not render the remainder of his [entire] testimony unreliable.”

The suit will now move forward, this time with the plaintiffs’ key expert testimony.

The appeal is In re: Pfizer Securities Litigation, case number 14-2853, in the U.S. District Court for the Second Circuit.

The underlying case is In re: Pfizer Inc. Securities Litigation, case number 1:04-cv-09866, in the U.S. District Court for the Southern District of New York.

Chipotle’s Social Media Policy is Illegal, Unlawfully Asked Employee to Delete Tweet

Chiptole

Things haven’t been good lately for the widely-popular burrito chain Chipotle. From ongoing e-coli outbreaks to a sexual discrimination suit earlier this year, the Mexican grill is now facing violations of Section 8(a)(1) of the National Labor Relations Association (NLRA).

An administrative law judge deemed Chipotle’s social media policy illegal and is requiring the chain rehire a Philadelphia-area employee who was terminated after criticizing the company on Twitter last year.

Illegal Policies

Plaintiff James Kennedy was reprimanded for posting on Twitter against a “free burrito” promotion and was dismissed two weeks later, when he was found collecting signatures petitioning for the mandated breaks owed during employees’ shifts. Kennedy’s tweet, sent in response to a free burrito giveaway, read: “@ChipotleTweets, nothing is free, only cheap #labor. Crew members make only $8.50hr. How much is that steak bowl really?”

The company was ordered to cease prohibiting employees from posting on social media regarding employees’ wages or other terms or conditions of employment.

Chipotle’s social media strategist emailed the regional manager for the Haverford, Pennsylvania location, forwarding the tweet. The next day, the restaurant’s general manager approached the Kennedy in the kitchen and said she wanted to talk to him in the dining room. They went out and sat with the regional manager, who asked the employee if he was familiar with the company’s social media policy. Under pressure, Kennedy ultimately agreed to delete the tweet, which he did later that day.

The Chipotle social media policy at issue states, “If you aren’t careful and don’t use your head, your online activity can also damage Chipotle or spread incomplete, confidential, or inaccurate information. You may not make disparaging, false, misleading, harassing or discriminatory statements about or relating to Chipotle, our employees, suppliers, customers, competition, or investors.”

Concerted Activity

Judge Susan Flynn not only struck down Chipotle’s social media policy as violating labor laws, she also ordered the burrito chain to post signs acknowledging that some of its employee policies – especially the social media rules – were illegal. Kennedy’s manager testified at the hearing that she fired Kennedy, a war veteran, because she was concerned he would become violent with her after arguing about his right to collect signatures on the meal break petition.

Employers may not prohibit social media postings of false, misleading, incomplete, disparaging or inaccurate information, according to the ruling in Lafayette Park Hotel. In order to lose the NLRA’s protection, employers must demonstrate that the employee had a malicious motive in posting the material. If employers choose to retain policies regarding “confidential” company information, the word “confidential” must be defined within the employer’s policy. Otherwise, this prohibition will be deemed a violation of Section 7.

The bottom line: Kennedy’s tweet was protected concerted activity because they had the purpose of “educating the public and creating sympathy and support” for hourly workers in general and Chipotle’s workers in specific. The tweet did not pertain to wholly personal issues relevant only to the employee but were truly group complaints and were therefore protected.

Kennedy, whom Chipotle has been ordered to reinstate and pay back wages, said he’d happily accept his back wages in the form of free Chipotle food vouchers. “You cannot deny that their food is delicious, but their labor policies were atrocious,” Kennedy said.

The case is Chipotle Services LLC dba Chipotle Mexican Grill (March 14, 2016).

Judge Rejects $12 Million Settlement in Lyft Misclassification Suit: “Doesn’t Come Close”

Lyft

A federal judge in California rejected the $12.25 million settlement proposal that Lyft offered in the misclassification class action suit Lyft drivers brought against the ride-hailing company. U.S. District Judge Vince Chhabria found the settlement number to be a gross miscalculation of what the drivers – which Lyft misclassified as independent contractors – were actually owed.

Settlement Proposal is “Too Modest”

Lyft came up with the $12.25 million amount based on a mileage reimbursement calculation of $64 million. By the class’s own methodology, however, the mileage reimbursement was a much larger figure: $126 million. “The modest nonmonetary relief set forth in the agreement does not come close to making up for these serious defects in the monetary aspect of the settlement,” Judge Chhabria said.

The mileage reimbursement calculated by Lyft therefore shortchanged the drivers by at least half.

“We believe we reached a fair agreement with the plaintiffs and are currently evaluating our next steps,” Lyft said.

Under the settlement, Lyft would have avoided changes to a labor model that relies on classifying drivers as independent contractors. The drivers sought to be reclassified as employees, which would make them eligible for all the benefits independent contractors do not get to enjoy: overtime pay, minimum wage, and other benefits.

Judge Chhabria believes the parties could file a revised settlement by the end of May.

Shannon Liss-Riordan, the attorney representing the Lyft drivers, said, “As the court recognized, we had been working from older data that Lyft had provided to us. We look forward to revisiting this now that Lyft has provided us more updated data, or pressing forward if a new resolution cannot be reached.”

Under the proposed settlement agreement, Lyft was not required to reclassify its drivers as employees. They are currently classified as independent contractors and bound by Lyft employment arbitration agreements. Misclassification suits are growing now more than ever, with Uber Technologies Inc. facing trial in June for the similar class action suits Liss-Riordan brought against the ride giant.

California Misclassification Suits Continue to Grow

The allegations against Uber – Lyft’s biggest rival – are also pending in California federal court and allege its drivers should be regarded as employees rather than contractors.

Labor rights groups such as the Teamsters believe Judge Chhabria’s refusal to approve the settlement speaks to a gross undervaluing of all of the drivers’ claims, including its worker misclassification claim. The Teamsters, along with other Lyft drivers, previously filed objections to the settlement and more recently filed a motion to intervene in the lawsuit.

Rome Aloise, Teamsters International Vice President, said, “We are pleased with today’s ruling. We are hopeful that Lyft drivers will get more of the money that they deserve thanks to our objections in this case, and we proudly continue to stand with Lyft workers who have been misclassified and are seeking justice.”

According to the U.S. Department of Labor, the misclassification of employees as independent contractors presents one of the most serious problems facing affected workers, employers and the entire economy.

Fissured Relationship

In recent years, the employment relationship between workers and the businesses receiving the benefit of their labor has fissured apart as companies have contracted out or otherwise shed activities to be performed by other businesses. This is accomplished through, for example, the use of subcontractors, temporary agencies, labor brokers, franchising, licensing, and third-party management.

Fissuring may lead to the misclassification of employees as independent contractors in a variety of ways, such as employers simply mislabeling certain employees as independent contractors to reduce payroll costs and to avoid providing expensive employee benefits.

The DOL supports the use of legitimate independent contractors – who play an important role in our economy – but when employers deliberately misclassify employees in an attempt to cut costs, everyone loses.

The case is Cotter et al. v. Lyft Inc. et al., case number 3:13-cv-04065, in the U.S. District Court for the Northern District of California.