The Legal Intelligencer Blog

A Statute of Limitations and a Strip Club

[This posting is for informational purposes and should not be construed or interpreted as either legal advice on any matter or as in any way creating an attorney/client relationship]

What do a strip club and a statute of limitations have in common? Well, not too much. However, the title of this blog clearly caught your attention, so just keep reading.

First, the statute of limitations.

The U.S. Supreme Court has invited the Solicitor General to submit a brief in Lewis v. City of Chicago, a case that the court is considering for certiorari. The petitioners are African-American applicants for entry-level firefighter positions. They are asking the court to consider whether a plaintiff making a disparate impact claim under Title VII must file an EEOC charge of discrimination within 300 days after the announcement of an employer’s alleged discriminatory practice, or within 300 days after the employer’s use of the discriminatory practice?

Section 706(e)(1) of Title VII provides that a charge must be filed with the EEOC within 300 days after an alleged unlawful employment practice has occurred.

In Lewis, the 7th U.S. Circuit Court of Appeals held that an EEOC charge for disparate impact discrimination must be filed within 300 days of the announcement of an alleged unlawful employment practice. Two other circuits (the 3rd and 6th circuits) agree with this approach. Conversely, five circuits (the 2nd, 5th, 9th, 11th and D.C. circuits) have held that new disparate impact claims accrue each time an alleged unlawful employment practice is used to make employment decisions. The Supreme Court would have to resolve the circuit split.

And now we have the strip club.

The EEOC has brought suit in Texas on behalf of a 56-year-old woman against a strip club. The EEOC alleges, in EEOC v. AHD Houston, Inc., that the strip club discriminated against a cocktail waitress because of her age.

According to the EEOC, the waitress, who had worked for the club for 13 years, was subjected to a series of demeaning comments beginning in August 2005. Specifically, a manger often referred to the waitress as “old” and repeatedly questioned her about her age. On at least one occasion, the manager told the waitress that she was exhibiting signs of Alzheimer’s disease when she forgot something.

Another manager at the club supposedly participated in the alleged age-based harassment by frequently joking about the waitress’ age and making comments that she was experiencing menopause.

Eventually, the EEOC alleges that the club terminated the waitress’ employment without explanation.

In a comments made to the Houston Chronicle, counsel for AHD Houston told the paper that the club has strict anti-discrimination policies, has zero tolerance for violations, and intends to vigorously defend the case.

The waitress, now 59, is working for a competitor.

Eric B. Meyer is a member of the labor and employment group at Dilworth Paxson LLP. Readers can contact Meyer via e-mail and follow him on Twitter.

Are You Taking Full Advantage of Your Juror Questionnaire?

I have participated in several civil jury selections in Philadelphia Common Pleas court.  I have done so for distinctly different kinds of cases with distinctly different kinds of case issues. In the process of going through the standard juror questionnaires, I noticed something that surprised me: Most of my clients looked at the name, education and employment on page one and then flipped the sheet to the “civil” questions on page two without reviewing the responses to the criminal-related questions.

That is a mistake. Don’t do it anymore!

Even for civil trials, there is a lot to learn about a person on that first page, even if the questions were designed for a different kind of trial. Specifically, pay attention to the following:

If the person is more or less willing to believe the testimony of a police officer. This is a strong indication of how folks view authority establishments. Specifically, if you are defending a corporation, you don’t want someone who mistrusts authority figures (i.e., is less likely to believe a police officer). If you are counsel for an individual plaintiff against a company, you want to beware of folks with a heightened respect for establishment (i.e., is more likely to believe a police officer).

If the person has been the victim of a crime. If you get the chance, this is something about which you may want to follow up with the juror. If the person had his wallet stolen once, that will not tell you much, but victims of serious crimes may identify with a plaintiff’s claim of victimization. This is especially true if he or she did not feel protected by the police or if he or she communicates a sense of helplessness.

If the person has been arrested or is close to someone who has been arrested.  Negative experiences with authority typically translates to a bias against whatever party represents authority in the courtroom. Corporate defendants beware.

Finally, take a look at the form in general. Was it filled out correctly? In the most recent jury selection I conducted in Common Pleas Court, an overwhelming majority of people did not fill out the form correctly. That’s right, an overwhelming majority. That tells you something about people and their willingness to follow other kinds of instructions like, let’s say, the instructions of the law that the judge will give them.

As much as that little piece of paper may appear not to contain much information, don’t be deceived. If you take full advantage, it can really give you a high-level picture of some important characteristics of a juror, and can give you a more fruitful foundation to ask follow up in voir dire.

Melissa M. Gomez, Ph.D. is a jury consultant and owner of MMG Jury Consulting LLC. She holds a Ph.D. in psychology from the University of Pennsylvania. Her experience includes work on more than 100 jury trials in Philadelphia and across the country, with a focus on the psychology of juror learning, behavior and decision-making. She has more than a decade of expertise in research design and methodology, as well as in behavioral and communication skills training.

This posting is for general informational purposes only and should not be construed or interpreted as advice specific to any matter. Each case is different and no strategy applies uniformly to all.

If you have any questions regarding jury psychology that you would like to see addressed in this blog, please contact Dr. Gomez at melissa@mmgjury.com or call 215-292-7956.

Melissa M. Gomez, Ph.D.
MMG Jury Consulting, LLC
www.mmgjury.com

 

Superior Court Declines Opportunity to Address Problems Inherent in Simultaneous UM/UIM Bad Faith Claims

Several weeks ago, the Pennsylvania Superior court declined to examine the substantive problems sometimes created when UM/UIM claims are simultaneously litigated in the same case, choosing instead to return the case to the trial court on procedural grounds relating the ripeness of the appeal.   Hopefully, however, either in this case or another, the court will at some point address the thorny issues presented by litigating the correctness of an insurer’s claims conduct in the midst of that very conduct.

In Gunn v. Hartford Insurance, Judge R. Stanton Wettick of the Allegheny County Court of Common Pleas ruled, among other things, that in a civil case in which UM/UIM claims and bad faith claims were joined, severance of the two claims would be appropriate.  Wettick declined, however, to stay the bad faith claim, notwithstanding the defendant’s claims that certain discovery regarding the insurer’s thought processes would be discoverable in the bad faith claim but not discoverable and prejudicial in the UM/UIM claim.  Hartford sought an immediate appeal of Wettick’s order pursuant to Pa.R.A.P. 313, and the Superior Court issued an opinion and order declining the request and therefore not addressing the merits of Wettick’s denial of the stay request. 

The majority opinion, written by Judge Cheryl Lynn Allen and joined by Judges Kate Ford-Elliott and Maureen Lally-Green contained a thorough analysis of whether or not it should agree to accept Hartford’s request for interlocutory appeal.  In so doing, the court analyzed each element required to justify such an appeal under Pa.R.A.P. 313 and found that the appeal lacked an issue of sufficient importance to justify immediate consideration.

Both insurers and insureds might not take the same view of the relative importance of the problems presented when litigating contractual and extracontractual insurance claims at the same time.   The Superior Court recognized the risk of harm a defendant faced without a stay and implicitly agreed that certain discovery regarding the insurer’s though processes on a claim would be discoverable in a bad faith case, but in no way discoverable in breach of contract case. 

The court held, however, the defendant did not sufficiently and specifically identify any documents that, if so disclosed, would cause harm if the work product protection applicable in the contract action were invaded. This seems to leave the door fairly wide open for the court to consider the imposition of a stay not only later in this case, but in other cases in which the defendant does sufficiently identify documents protected by the work product privilege in a breach of contract action which would be discoverable in a bad faith action.   This is also a fair warning to those seeking the stay of a bad faith case to specifically identify documents which are only discoverable in one of the two claims, how the discovery of those documents would be prejudicial, and how that prejudice would be remedied by a stay

There are public policy arguments in favor of interlocutory appeal as well.  First, without a stay, Pennsylvania courts risk putting in the hands enterprising bad faith plaintiffs attorneys a tool for obtaining unfair leverage in a UM/UIM action by attempting to gain access to most, if not all of the insurance company’s claims file, including materials which would never be discoverable in a breach of contact action.  This danger was recognized in a brief dissenting opinion by Lally-Green in Gunn.  Beyond that, however, the invasion of a legitimate protection in discovery, i.e., work product privilege, is a potential infringement the rights of a defendant exposed to punitive damages to present every available defense in a case where it faces punitive damages.  This right has been recognized by the U.S. Supreme Court in Philip Morris v. Williams as a procedural due process right under the Fourteenth Amendment to the U.S. Constitution. That very possibility might some day convince an appeals court panel that such a threat in a simultaneous UM/UIM and bad faith case is one of sufficient importance to warrant review on an interlocutory basis.

Charles Haddick
Dickie McCamey & Chilcote
http://www.dmclaw.com/

It’s Still ‘Hail to the Redskins’ -- At Least for Now

Football fans, beware.  There could be a shakeup coming in the NFC East.  Thanks to a recent ruling from the U.S. Court of Appeals for the D.C. Circuit, the Washington Redskins can keep their trademarks in the name “Redskins,” but the ruling is only a temporary reprieve for the team.  The court’s ruling is a procedural one, and it leaves open the possibility that the Redskins might lose federal protection for their marks in a second case that is now pending. 

The issue in the cases is whether the name “Redskins” disparages Native Americans.  If so, then it is not subject to registration as a trademark under the Lanham Act.  On May 15, the D.C. Circuit affirmed a district court ruling that entered judgment in favor of the Redskins in an action challenging six registered trademarks.  The district court held that the defense of laches barred the plaintiffs’ action because the plaintiffs delayed in bringing suit.  On appeal, the plaintiffs’ challenged the district court’s finding that the Redskins had suffered prejudice.  The D.C. Circuit concluded, however, that the district court was justified in finding both litigation prejudice due to lost information about contemporaneous evidence of public attitudes toward the mark and economic prejudice due to the fact that the Redskins invested in and developed their marks while no litigation was pending. 

However, the D.C. Circuit’s decision will not be the end of this dispute.  In an earlier opinion in the case, the D.C. Circuit laid out a roadmap to avoid the laches defense.  In that opinion, the court explained that a laches defense must focus only delay in the period from a plaintiff’s 18th birthday (when he first has the right to sue) until the day he brings suit.  Delay prior to a plaintiff’s 18th birthday is not relevant.  Thus, to avoid the laches defense, the plaintiffs need only to find a plaintiff who is about to turn or has recently turned 18. 

Not surprisingly, they have already done so.  Two years ago, another suit was filed by various plaintiffs, ranging in age from 18 to 24.  That case had been on hold while the first case was appealed.   Notably, in the first case, the Trademark Trial Appeal Board dismissed the laches defense and ruled on the merits that the Redskins’ trademarks were disparaging.  Accordingly, it ordered them cancelled.  That decision, of course, is not precedential in light of the D.C. Circuit’s decision.  But it might be persuasive and, in any event, it suggests that a court might find compelling the arguments in favor of cancelling the trademarks. 

If that were to happen, the Redskins would face a difficult decision:  continue with the trademarks that they have developed and in which they have invested or adopt a new team name and new marks that will allow them the full protection available under federal law.  Depending on that decision, the NFC East could have a “new” divisional rival in the near future. 

Joshua D. Wolson is a member of the litigation department at Dilworth Paxson.  He can be reached at 215-575-7295 or jwolson@dilworthlaw.com.  This posting is for informational purposes only and should not be construed or interpreted as legal advice on any matter.

 

Second Phase of Luzerne Case Review Begins

By Leo Strupczewski
Of the Legal Staff

The Berks County senior judge appointed by the Pennsylvania Supreme Court to review juvenile cases in Luzerne County has begun reviewing serious misdemeanor and low-level felony cases heard before a former judge there.

Senior Judge Arthur E. Grim will examine the cases, heard before former Luzerne County President Judge Mark A. Ciavarella Jr., for possible dismissal or expungement, Chief Justice Ronald D. Castille said.

“We are continuing our effort to address the miscarriage of justice that has come to light in Luzerne County,” Castille said. “This is the next step in our commitment to restore public confidence and to rebuild the juvenile justice system in the county.”

Ciavarella and fellow former Luzerne County President Judge Michael T. Conahan admitted in January to taking more than $2.6 million in kickbacks from one of the owners and the builder of PA Child Care, a private, for-profit juvenile detention center. Both have agreed to serve 87 months in federal prison. The government alleges that the payments influenced the judges to steer juveniles to the facility, but Ciavarella and Conahan deny that allegation.

The justices appointed Grim, the chairman of the Pennsylvania Juvenile Court Judges' Commission, in February to conduct a review of all juvenile cases handled by Ciavarella between 2003 and 2008. They allowed him broad discretion in making recommendations and Grim divided the work into at least three phases. The first dealt with the least serious offenses. Any phase after the one Grim has just begun will deal with more serious charges.

Castille said Grim will again file a report and recommendation with the justices. The chief justice said he hopes the phase, which likely includes 400 cases, is completed by mid-July or early August.

The low-level felonies being reviewed in this phase are of a non-violent nature, Castille said.

Two weeks ago, the court announced that Grim will begin expunging court records for an estimated 800 youths in June. Those cases dealt with misdemeanors of the third degree or summary offenses.

"Had the juveniles in these cases been represented by competent counsel, had they appeared before an impartial tribunal, and had their other constitutional rights been protected, the vast majority of these cases would have resulted in consent decrees, or some lesser sanction," Grim wrote in his initial report to the justices. "Had these cases resulted in consent decrees or lesser sanctions, all of these juveniles would be entitled to have their juvenile delinquency case records expunged by now pursuant to 18 Pa.C.S. 9123."

Insurance Bad Faith and Punitive Damages

In a prior post, I suggested that one of the trends in insurance bad faith litigation is the narrowing of the applicability of Pennsylvania’s bad faith statute, perhaps in an effort by the appeals courts to stem the tide of the perceived misuse of bad faith claims as add-ons to coverage and other first party claims. 

The caselaw addressing the proper measure of punitive damages is trending, it appears, in the same direction, and is important that those who handle bad faith cases for either insureds or insurers, stay current with that common law as well.  This evolving common law is also integral to the proper valuation of a bad faith case, so that an insured may assess his upside possibilities and a defendant may assess its downside exposures. 

In State Farm Mutual Auto Insurance Company v. Campbell, the U.S. Supreme Court held that “few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process.”  The court added that an award of more than four times the amount of compensatory damages might be closer to the line of “constitutional impropriety.”  Finally, the court held that where compensatory damages were substantial a lesser ratio might even be appropriate. 

Recently, the 3rd U.S. Circuit Court of Appeals in Jurinko v. Medical Protective Co. issued an opinion strongly suggesting that the appropriate punitive damages ratio in the vast majority of cases is about 1:1, not 4:1, and not 9:1.  In Jurinko, the 3rd Circuit affirmed a judgment against the insurer in a bad faith case but, in so doing, unanimously reduced a punitive damages award of $6.25 million on a compensatory award of $1.66 million to a number roughly approximating the 1:1 ratio.  
    
While the court in Jurinko left room for the possibility of larger ratios in cases of egregious behavior, it serves for the time being as the latest in a line of punitive damages cases which seem to be moving the line of acceptable punitive award rations from 9:1 downward, initially down to 4:1 and, now, potentially down as far as 1:1.  There is room for exceptions, one suspects, although in the overwhelming majority of cases, especially where large compensatory awards are made, Jurinko is valid support for an argument that any punitive damages award in excess of 1:1 may violate a defendant’s due process rights. Because the Pennsylvania Bad Faith Statute specifically allows the possibility of a punitive damages award, see, 42 Pa. C.S.A. §8371, Jurinko is important to those litigating bad faith cases. 

Charles Haddick
Dickie McCamey & Chilcote
http://www.dmclaw.com/

States Push Back Against Supreme Court’s Leegin Decision

The Supreme Court’s decision two years ago in Leegin Creative Leather Prods. v. PSKS reversed nearly 100 years of precedent and held that resale price maintenance agreements – in which manufacturers require resellers to maintain a certain minimum price at retail – were not per se violations of Section 1 of the Sherman Act.  Instead, according to the court, such agreements had to be judged according to the Rule of Reason, which requires a court to weigh the pro- and anti-competitive effects of the conduct to determine if it is illegal.  Notably, among the pro-competitive effects that the court cited were the promotion of inter-brand competition, even at the expense of intra-brand price competition.  The decision promoted much debate and some handwringing among consumer groups, which thought that the decision was sure to lead to higher prices. 

Now, though, some states are starting to fight back.  On April 14, Maryland amended its state antitrust statute (Maryland Commercial Code § 11-204) to bar resale price maintenance agreements.  The new law will take effect Oct. 1, and it creates a private right of action for any retailer that is injured or faces a threat of injury.   Moreover, the new law applies not only to brick-and-mortar stores in Maryland but also to transactions in which consumers or retailers in Maryland buy products over the Internet.  Although Maryland’s new law is the first direct legislation responding to Leegin, it might not be the last.  In Leegin, about 36 other states – including Pennsylvania – joined Maryland in an amicus brief opposing the outcome, and several of those states might adopt similar Leegin-repealers.  In addition, the attorneys general for some states, including New York, Illinois and Michigan, have taken the position in court filings that Leegin does not apply under the state antitrust law for those states, even without a Leegin-repealer.  Moreover, Sen. Herb Kohl has introduced legislation in the Senate to repeal Leegin as a matter of federal antitrust law.  

All of this means that wholesalers and manufacturers cannot treat Leegin as too much of a safe harbor.  Instead, companies may find themselves in a somewhat anomalous situation, where the only real safe harbor is to follow decisions that pre-date Leegin, some of which the Supreme Court expressly overruled in Leegin.  Most notably, the only real safe harbor might be the Supreme Court’s 1919 decision United States v. Colgate & Co., which held while resellers should remain free to set their own prices, the antitrust laws permit a manufacturer to refuse to deal with resellers that will not adhere to the manufacturer’s minimum resale prices.  Colgate outlines an approach that is not illegal under Maryland’s new amendment and that likely will pass muster under other Leegin-repealers as well.  Thus, it might remain the controlling authority, even after the Supreme Court has moved away from it. 

Joshua D. Wolson is a member of the litigation department at Dilworth Paxson.  He can be reached at 215-575-7295 or jwolson@dilworthlaw.com.  This posting is for informational purposes only and should not be construed or interpreted as legal advice on any matter.

 

Brady: Ward Leaders Backing Citywide Slate

By Amaris Elliott-Engel
Of the Legal Staff

Tuesday's primary election in Philadelphia will put to the test Democratic City Committee Chairman Bob Brady's effort to make the committee's endorsement of judicial candidates mean something and cut down on the number of side deals between judicial candidates, political strategists and ward leaders.

Brady said today it appears that the city's 66 Democratic ward leaders are keeping their promise to back the same seven candidates for the Court of Common Pleas and the same four candidates for Municipal Court.

Even in independent, progressive wards who only wanted to support candidates with "recommended" ratings from the city's bar association's rating arm, those wards backed the majority of this year's slate, Brady said.

Nine of the 11 candidates backed by the Democratic City Committee for Municipal Court and the Court of Common Pleas were rated "recommended" by the Philadelphia Bar Association's Judicial Commission. Two weren't.

Williams Drops Support of Merit Selection

Amaris Elliott-Engel
Of the Legal Staff

State Sen. Anthony Williams said he was no longer going to support selecting judges through an appointed process, also known as "merit selection."

Williams was speaking during a press conference convened today to criticize the lack of Philadelphia Inquirer endorsements for the black women running for judge locally.

Williams said he was no longer going to support selecting judges through "merit selection" because of the Inquirer's editorial stance on the Philadelphia Common Pleas and Municipal Court races and because most of the black women running for judge were rated "not recommended" by the Philadelphia Bar Association's Judicial Commission.

Williams said the bar and the editorial board had asked him to support "merit selection" in the past. And because of his growing distrust in bodies that Williams said don't believe in fairness, he couldn't support taking away voters' franchise in selecting judges.

Williams had introduced a "merit selection" bill proposing that Philadelphia judges be selected through an appointed process based on their qualifications. Williams said he still wants to improve the elective process for judges, but he will look to campaign fundraising limits, not "merit selection" legislation to reform the process.

Lynn Marks of Pennsylvanians for Modern Courts, a key proponent of merit selection, said she was disappointed by Williams' change of mind, and she hopes to dialogue with him about his stance.

Williams has spoken passionately about "the burdens on candidates in terms of raising money and the whole randomness of the elective process," Marks said.

Inquirer Editorial Board Slammed for Not Endorsing Black Women

By Amaris Elliott-Engel
Of the Legal Staff

Two Philadelphia state senators and the city Democratic City Committee chairman held a press conference today in front of the Philadelphia Inquirer building in support of the black female judicial candidates who did not receive the endorsement of Inquirer editorial board.

State Sens. Anthony H. Williams and Leanna M. Washington and Democratic City Committee Chairman Bob Brady said they found it unbelievable that the Inquirer couldn't find one of the black women candidates in the local Philadelphia field worthy of endorsement and that voters should rebuke the newspaper's editorial choices by electing them to bench in Tuesday's primary.

"Black women have been denied fair play and justice in the pages of this paper," said J. Whyatt Mondeshire, leader of the local NAACP chapter and publisher of the Philadelphia Sun.

Philadelphia Common Pleas Judge Joyce Eubanks, a gubernatorial appointee who must run to keep her seat, and attorney Roxanne Covington attended the press conference. Both said they were not interviewed by the editorial board. Eubanks received a rating of "recommended" from the Philadelphia Bar Association's judicial commission, while Covington did not.

Other black women in the race include attorneys Sharon Williams-Losier and Beverly Muldrow. They also were rated "not recommended," despite prior "recommended" ratings.

Stephanie Singer, leader of the progressive Center City 8th Ward, and others all spoke in favor of electing black women to the bench despite the lack of an Inquirer endorsement.

Harold Jackson, the Inquirer's editorial page editor, pointed out the paper endorsed African-Americans for the state Supreme Court, Philadelphia district attorney and the Superior Court. Those endorsees include state Superior Court Judge Cheryl Lynn Allen, running in the Republican primary for state Supreme Court, Philadelphia Common pleas Judge John Younge, running in the Democratic primary for state Superior Court, and Seth Williams, running in the Democratic primary for Philadelphia District Attorney against four others.