According to an article in the Ventura County Star entitled “District spent $532,123 in lawsuit: Case is settled for $150,000, data show“, Assistant Principal Becky Romano had suffered a work-related injury in 2003 that required a long convalescence. In August 2004, Romano returned to work as assistant principal at Rio Mesa High School. The district then allegedly claimed Romano was physically unable to do her job and forced her out. In January 2006, Romano filed suit against the Oxnard Union High School District alleging wrongful termination.

According to the Star, Romano subsequently found a new job as a high school principal in the Santa Monica-Malibu Unified School District.

Romano’s lawyer, Allen Ball of Ventura, CA, claimed he was willing to settle the case for only $75,000 and had made “16 written offers” to mediate or arbitrate the case out of court. Ball accused the district’s lawyer, Dennis Walsh of Encino, CA, of refusing to settle in order to run up his bill. However, the district described Ball’s demands as unreasonable because they did not include all of the named defendants and therefore wouldn’t have ended the lawsuit.

When the Star made a California Public Records Act request to ascertain how much the district had spent in attorney fees fighting the case, the district refused. The Star then took the district to court. Judge Henry Walsh of Ventura County Superior Court rejected the district’s arguments and ordered the district to honor the Star’s information request. That is when the Star learned that the district had incurred legal fees and costs of a whopping $532,123.

People complain all the time about frivolous lawsuits and greedy plaintiffs. But what about the public tax dollars that are wasted putting up frivolous legal defenses to legitimate claims?

This clearly wasn’t a frivolous lawsuit by Romano. It had gone on for over 2 years, meaning it must have survived numerous legal challenges by the district. Moreover, frivolous lawsuits don’t settle for $150k. They usually get settled for peanuts; that is, if they don’t get thrown out by the court first on a demurrer or motion for summary judgment.

The district had termed Ball’s $75k settlement offer as “unreasonable”, but that is open to debate, considering what the district ultimately ended up spending to fight and then settle the case. More importantly, why didn’t the district take up Ball on any of his 16 written offers to mediate or arbitrate? Had the district done so, the case would very likely have resolved at or around $150k as it ultimately ended up doing. And the district would very likely have saved the taxpayers a bundle through early resolution of the dispute.

You might be wondering whether this kind of waste is an isolated occurrence. Unfortunately, it’s all too common. And why shouldn’t it be? Defendants and their lawyers have all sorts of reasons to delay settlement of meritorious suits:

1. It’s not their money, it’s the taxpayers’ and/or insurers’.

2. Defense lawyers bill by the hour so early resolution of a case isn’t business-smart.

3. Defendants think making an example of a plaintiff by using a scorched earth defense will scare off future claimants.

4. Defendants take the lawsuit personally and emotions get the upper hand.

5. Delay means the lawsuit gets inherited by the next administration.

6. Decisionmaking by committee makes the status quo (keep litigating) the path of least resistance.

You would think heads should roll at the district because of the waste of taxpayer dollars that resulted from the above. First of all, the only reason the district’s legal bill became public knowledge at all is because the Star had the resolve and funds to take the district to court and convince a fair-minded judge to side with them. Ninety-nine percent of the time, the public never learns how much money was wasted by a government agency fighting a meritorious claim. Second, the scandal fades into the noise of daily events and is quickly forgotten by the voting public and so nothing is ever done about it.

Perhaps a good first step toward addressing the problem would be to force government agencies to publicly disclose their legal defense bills. In order for that to happen, more people would have to be willing to make California Public Record Act requests for the information and, if refused, to take the agency to court, just as the Star did here.

And that means you.

If you’re interested in finding out more about CPRA requests, read the First Amendment Project’s handy CPRA brochure to get a quick overview. CPRA requests are actually easy to make and can even be made over the phone or by email. Taking the agency to court if it refuses is harder, though.

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Some highlights:

1. Officer Melissa Borck, 45, alleged that a male officer pushed her head to his groin and said, “I thought you’d never ask” and that female officers were ordered to pick up dry cleaning, lunch or coffee for male officers.
2. Borck alleged that the harassment had caused her to give birth to a stillborn baby only 19 weeks into her pregnancy.
3. Borck continues to work for the LAPD and says she and fellow female officers continue to face harassment and retaliation from the LAPD
4. The award comprised $1 million economic damages (e.g., lost wages, medical bills) and $1.3 million in non-economic damages (primarily emotional distress).
5. The case was tried twice. Borck lost the first trial but U.S. District Judge Terry Hatter declared a mistrial when a juror was heard saying after the verdict, “We weren’t here to hear about her dead baby”.
6. A few months ago, in November 2008, the LAPD had settled another sexual harassment lawsuit for $2.25 million.
7. The City of Los Angeles is deciding whether to appeal.

My main takeaway: the emotional distress award of $1.3 million in particular is large, showing that juries continue to give plaintiffs substantial awards when justice requires it, even amidst a severe economic recession. This verdict should add fuel to the growing debate over whether severe recessionary conditions are causing juries to become more anti-plaintiff or anti-defendant.

Congratulations to attorney Matthew McNicholas for coming back from a loss to obtain justice for Officer Borck.

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1. I’m Baaaack (and with a Jury Verdict to report)
2. Sexual Harassment in California
3. Teacher Wins $1.8 Million Jury Award for Wrongful Termination

1. San Diego State University: $1.45 million settlement to former swim coach Deena Deardurff Schmidt.
2. Fresno State University: Settlements/jury awards to former women’s basketball coach Stacy Johnson-Klein ($9 million), former volleyball coach Lindy Vivas ($4.52 million), former associate athletic director Diane Milutinovich ($3.5 million) and softball coach Margie Wright ($605,000).
3. UC Berkeley: $3.5 million settlement to former swimming coach Karen Moe Humphreys.

It seems it’s only a matter of time before female college coaches in other parts of country follow suit and start filing their own lawsuits.

The two FGCU coaches – former women’s volleyball head coach Jaye Flood, 51, and former women’s golf head coach Holly Vaughn, 46 – had brought their suit in federal court (Flood and Vaughn v. Board of Trustees of the Florida Gulf Coast University et al. , Middle Dist. Fla. Case no. 2:08-cv-30-FtM-34), claiming the school had retaliated against them for raising concerns about mistreatment of female athletes and coaches and alleging defamation. Their lawyer, Linda Correia of DC firm Webster, Fredrickson, Correia & Puth and lead counsel for "Public Justice", a national legal defense group, said: "This case was always about retaliation, and it was always because Coach Flood and Coach Vaughn stood up for their teams and stood up for their programs, and raised valid issues to the university."

Flood received $2,965,000 while Vaughn received $435,000. As part of the settlement, FGCU has agreed to hire an independent company to lead a full Title IX gender equity compliance review and subsequent monitoring for 4 years, a campus attitude survey, and a personnel policy review. FGCU President Wilson Bradshaw further said that the settlement payments would be paid out of the school’s insurance policy, not donor money or tuition revenue.

Congratulations to Ms. Flood and Vaughn and their attorneys!

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Chase had also counter-claimed against Lore for violating the Georgia Trade Secrets Act by collecting information about relationship manager compensation at Chase and four other banks, then selling that information to HomeBanc. Federal Judge Willis B. Hunt Jr. agreed with Chase in partially granting a motion for summary judgment. However, the jury saw the counterclaim as a tactic to limit Lore’s FMLA claims and refused to award any damages to Chase for the violation, nor even to cut off any of Lore’s damages.

According to Farahany, “This case was really based on the credibility of the witnesses, so the case really is down to one question: Did my client pick up the phone and say ‘I resign,’ or was he fired by his boss? It’s a credibility question.”

The case is Lore v. Chase Manhattan Mortgage Corp., No. 1-04-cv-0204. Gary R. Kessler and Ann B. Hale-Smith of Irvin & Kessler and William L. Pratt of Everitt, Pratt & Latham in Atlanta, Georgia, represented Chase.

Congrats to Lore and his capable attorneys.

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Yesterday, Judge Patricia Y. Cowett of California Superior Court in San Diego ruled that Starbucks must provide restitution, with interest, of over $100 million. That’s almost $1,000 per barista! She also enjoined Starbucks from sharing any more tips with supervisors.

Starbucks spokeswoman Valerie O’Neil said Starbucks plans to appeal. She described the judgment as “fundamentally unfair and beyond all common sense and reason.” We’ll see if the Court of Appeal agrees with her. I wouldn’t hold my breath if I were she. Wage and hour actions typically come down to basic math that’s very hard to argue with. Seemingly small amounts of money can quickly skyrocket into the stratosphere once you’re done multiplying the amounts by the number of employees, the number of days, adding interest, etc.

The lawsuit was filed in October 2004 on behalf of Jou Chau by attorneys Chapko of the Law Office of Terry J. Chapko in Coronado, CA, and Eric Aguilera of Bohm Matsen Kegel & Aguilera in Costa Mesa, CA. Lead trial counsel for plaintiffs were class action specialists David Lowe of Rudy Exelrod & Zieff, LLP, in San Francisco, CA, and Laura Ho of Goldstein, Demchak, Baller, Borgen & Dardarian in Oakland, CA.

What I’m wondering is what the heck Starbucks was thinking to take this case to trial? Why didn’t they settle this? Class action lawsuits typically settle once the plaintiff class wins class certification from the court. That happened in 2006 for this case. Also, wage and hour lawsuits tend to be very difficult for defendants to win. Starbucks apparently thought it would buck the conventional wisdom on both counts. Well, they thought wrong. $105 million wrong.

Congrats to Chapko and company for a stupendous result.

For more information, I refer you to the New York Times article, California Court Awards Starbucks Baristas $105 Million in Tip Dispute.

P.S. I must admit to feeling a bit guilty writing this post, as I’m doing it while sitting at a Starbucks sipping on a latte. But hey, I gotta do my part to help Starbucks pay for this whopping judgment! Here’s $5, Starbucks, keep the change. You probably need it more than I do.

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The settlement agreement was supposed to be confidential, but in 2003, PMA decided to tell McCoy’s supervisors the reason why she would be receiving the training was because she had sued PMA. Word spread and things turned very hostile very quickly for McCoy. McCoy’s managers began documenting all of McCoy’s training because of her “litigious history”. McCoy was “hard-timed” throughout the training. McCoy eventually suffered a breakdown in 2004. When McCoy filed a grievance, PMA held the grievance arbitration in McCoy’s absence while she was still out on stress-induced disability leave. With McCoy absent, the arbitration found McCoy’s grievance to be frivolous. McCoy was told she would not be allowed to return to work until she took a diversity class and signed a statement promising to never file another grievance again. Not surprisingly, McCoy decided not to return to work and has been out of work since. To add insult to injury, none of the women who were supposed to get the training got it.

The case went before a Los Angeles Superior Court jury consisting of 5 men (one African-American) and 7 women. After 3 weeks of trial, including 4 days of jury deliberation, the jury voted 11-1 in favor of plaintiff and 9-3 on the verdict amounts, finding that McCoy had been retaliated against for filing her initial discrimination complaint. The verdict breakdown was as follows:

- $660,000 economic damages

- $540,000 emotional distress

Judge Jane Johnson presided over the suit. Counsel for the defense was Clifford Sethness of law firm Morgan Lewis & Bockius.

With the trial over, McCoy will now proceed with a motion requesting attorney fees and contend with the usual post-trial motions and appeals by defendants.

After more than 10 years of suffering, Catherine McCoy has finally achieved justice. Congratulations to Mr. Luti for helping to make that happen.

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The case went before a Placer County Superior Court jury consisting of 8 men and 4 women. The jurors voted unanimously in favor of plaintiff on all counts and verdict amounts, finding that Ms. Scott had been fired for refusing to violate California laws regarding student-teacher ratios. The verdict breakdown was as follows:

- $100,000 lost past wages
- $500,000 lost future wages
- $500,000 emotional distress
- $750,000 punitive damages

Judge James Garbolino presided over the suit. Counsel for the defense was Bruce Scheidt of Sacramento law firm Kronick, Moscovitz, Tiedemann & Girard. In the past, Placer County jurors have been somewhat unsympathetic to plaintiffs. Recently, however, jurors there have begun issuing notable verdicts.

Phoenix’s VP of Corporate Development, Sharon Moran, stated that Phoenix intends to file post-trial motions and possibly appeal.

It always amazes me when employers take a case like this to trial instead of settling early. When a verdict like this comes out, especially in a conservative county, you wonder, will they ever learn?

Congratulations to Ms. Coleman. The holidays just became a lot merrier for her and her client.

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Betty Dukes, an employee in one of Wal-Mart’s California stores, filed a sex discrimination suit against her employer in 2001. Dukes claimed that she was denied training needed to secure promotions despite 6 years of dedicated work and excellent performance reviews.

Plaintiffs had requested the court certify plaintiffs’ class of approximately 1.6 million female Wal-Mart employees (including women who had previously worked in a Wal-Mart store since December 26, 1998). Certification is a key battle in class action lawsuits. Many defendants settle if plaintiff wins. In Dukes case, the court granted plaintiffs’ request, finding that

• (i) Numerosity: the class of injured plaintiffs was so numerous that individual lawsuits would be impractical;
• (ii) Commonality: issues raised in the suit were common to all the class members;
• (iii) Typicality: the claims or defenses of the plaintiffs who were representing the entire class were typical of the claims or defenses of the entire class; and
• (iv) Adequate Representation: the plaintiffs representing the class would fairly and adequately represent the class.

After losing the certification battle, Wal-Mart appealed the lower court’s decision to the 9^th Circuit Court of Appeals. On February 6, 2007, the 9^th Circuit upheld the lower court’s decision under an “abuse of discretion” standard. Wal-Mart requested a rehearing from the 9^th Circuit. Today, the 9^th Circuit again issued an opinion upholding the lower court’s decision.

Theodore J. Boutrous of Gibson, Dunn & Crutcher, Los Angeles, argued for defendant Wal-Mart. Brad Seligman of the Impact Fund argued for plaintiffs, with briefing assistance from Cohen, Milstein, Hausfeld & Toll, Washington, D.C.; Equal Rights Advocate, San Francisco; Tinkler & Firth, Santa Fe, New Mexico; Public Justice Center, Baltimore, Maryland; Davis, Cowell & Bower, LLP, San Francisco; Merit Bennett, P.C., Santa Fe, New Mexico.

Congratulations to Mr. Seligman and his team as they continue to make history!

For more information:

Wal-Mart Class Website
Equal Rights Advocate
Class Action World

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Johnson-Klein had been fired mid-season after less than three seasons as the Bulldogs’ coach. The firing sparked intense controversy.

Johnson-Klein’s lawyers, Dan Siegel and Warren Paboojian, argued that Johnson-Klein had been fired in a public, humiliating manner because she advocated for women’s rights at a university that had long viewed women as second-class citizens. They painted a complex picture in which Johnson-Klein’s players resented her tough discipline, assistant coaches resented her high expectations, and top lieutenant coveted her job, while the university grew concerned as she complained about favoritism toward the men’s basketball program.

Fresno State’s lawyer Mick Marderosian argued that Johnson-Klein was a ruthless, money- and power-hungry manipulator who mistreated her players’, flaunted university policies and had no business being anywhere near a university basketball court.

After two months of trial, the jury of 11 women and 1 man deliberated for just 4 hours before rendering a stunning verdict of 12-0 on all 13 of Johnson-Klein’s counts. The large size of the verdict was especially surprising given that Fresno jurors have tended to be conservative.

Johnson-Klein told reporters that she felt “vindicated” and remarked about the legal process: “It’s long, it’s hard, it’s not for the weak of heart. But it works, and I’m just very thankful it worked today.” Paboojian later said. “Next to (losing) one’s family, there’s nothing worse than destroying a career. I think the jury sympathized and understood that.”

In a statement, Fresno State President John Welty said, “I disagree with the decision. We will appeal. But we are determined not to be distracted by it, and will continue with the essential work of the university. I am personally committed, and this university is committed, to the well-being of all our students.”

However, it is unclear whether Mr. Welty will be leading that appeal. According to the Fresno Bee, State Senator Dean Florez on Friday called for Mr. Welty’s immediate resignation and announced that the Senate committee on gender discrimination which he chairs intends to hold a hearing in January in Sacramento to question Welty and California State University Chancellor Charles Reed. Fresno State is one of 23 campuses in the CSU system.

Florez was joined at his press conference by Johnson-Klein, former Fresno State volleyball coach Lindy Vivas, and former Fresno State associate athletic director Diane Milutinovich. Earlier this year, Vivas was awarded $5.85 mil. (later reduced to $4.52 mil.) by a Fresno County jury and Milutinovich agreed to accept $3.5 mil. in settlement of claims against Fresno State.

Congratulations to fellow attorneys Dan Siegel and Warren Paboojian. Their victory builds on Nathan Goldberg’s $18 mil. retaliation jury verdict against Vons in 2006, highlighting an emerging trend of stunning retaliation verdicts in California.

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