About frivolous lawsuits
Stan K
former employee's allegations of illegal discrimination, there is a
law in NJ that allows a victim of a frivolous lawsuit to recover the
costs of defending the lawsuit. (The former employer was basically
going on record as not only denying there was any illegal
discrimination but that the former employee knew there was no
discrimination, thus any action asserting discrimination was frivolous
from the word "go", and if the former employee sued anyway, the
company would try to recover their defense costs.) The question I
have is how far can such "frivolous" actions go; specifically, A sues
B and loses, B then claims the suit was frivolous but the claim is
denied, then A claims that B's "frivolous" assertion was itself
frivolous and goes after B to recover the costs of defending the
frivolous assertion that the original lawsuit was frivolous, and
furthermore the only reason for B's original notice of "frivolous"
was to scare A into dropping the proposed action.
I guess part of the problem is how is A supposed to determine if
there's even a case unless A can have access to other employees, to
marketing plans and analyses, and to HR records (aka "discovery", I
guess) to see if there's a pattern of discrimination without filing a
lawsuit. In this specific case, the company discontinued an R&D
effort and laid off those who were working on it, which is the end of
the story as far as they were concerned; the people who were laid off
were simply unlucky enough to be working on an effort for which there
were legitimate business reasons to discontinue. The discrimination
assertion was that those who were quietly and involuntarily assigned
to this effort were disproportionally one minority class, that this
move was made because a middle manager had problems working with this
minority class and so decided to get rid of them in a reorg, and that
executive management, early on, knew this effort probably wouldn't
result in a profitable product, so in effect, this minority group was
slowly, and quietly, being pushed toward the door.
Mike Jacobs
> Based on the contents of a "lawyer letter" that I saw in response to a
> former employee's allegations of illegal discrimination, there is a
> law in NJ that allows a victim of a frivolous lawsuit to recover the
> costs of defending the lawsuit.
Most if not all states have such laws, as does the Federal court
system (Rule 11). Where not specifically so provided by statute,
courts nevertheless retain the power to sanction attempted fraud on
the court and/or bad faith filings as a necessary incident to the
court's jurisdiction, analogous to the power to cite for contempt.
<snip details of the particular case I don't want to get into>
> The question I
> have is how far can such "frivolous" actions go; specifically, A sues
> B and loses, B then claims the suit was frivolous but the claim is
> denied, then A claims that B's "frivolous" assertion was itself
> frivolous and goes after B to recover the costs of defending the
> frivolous assertion that the original lawsuit was frivolous, and
> furthermore the only reason for B's original notice of "frivolous"
> was to scare A into dropping the proposed action.
This "hall of mirrors" will not go on forever, as you surmise. At
some point the court will actually look at the merits of the
underlying claim and will consider that it either was, or was not,
frivolous. If it was not, but if the opponent had a good faith basis
to allege that it was, then the opposition also was not frivolous.
The oscillations usually dampen out after no more than 1 or 2 rounds
of this - the Court simply won't tolerate any more back-and-forth
frivolity than that.
> I guess part of the problem is how is A supposed to determine if
> there's even a case unless A can have access to other employees, to
> marketing plans and analyses, and to HR records (aka "discovery", I
> guess) to see if there's a pattern of discrimination without filing a
> lawsuit.
Ever since the Federal courts (and most states soon after) adopted the
"notice pleading" standard in the 1930's, a plaintiff _could_ proceed
that way and conduct a "fishing expedition" thru discovery to find out
whether he really had a case - so long as he had some articulable
_harm_ that had occurred to him, he was entitled to sue any
"reasonable suspects" and then find out, thru discovery, whether that
defendant was in any way responsible for causing that harm. A
_completely_ frivolous claim, of course, where the plaintiff did not
even suffer any harm, would be thrown out and subject to sanctions
even under this old rule. But the recent SCOTUS cases of Twombly v.
Bell and Iqbal v. Ashcroft changed all that, essentially throwing out
the notice-pleading baby with the bathwater of tenuously-supported
antitrust claims and terrorists' claims of inhumane treatment by
government captors. Now, virtually _any_ claim in which some or all
of the facts essential to make out a prima facie case are in the
exclusive control of defendant - which of course includes any kind of
hidden corporate or government shenanigans they don't want the public
to know about and therefore keep hidden - is going to be subject to
dismissal for failure to state the FACTUAL basis for the claim "with
sufficient particularity." The state of that issue is a far deeper
can of worms than need be gone into here, but Google those 2 cases at
your leisure if you want to get into it. Suffice it to say that
claims of illegal discrimination have been among those most hard-hit
by these recent rulings.
> In this specific case, the company discontinued an R&D
> effort and laid off those who were working on it, which is the end of
> the story as far as they were concerned; the people who were laid off
> were simply unlucky enough to be working on an effort for which there
> were legitimate business reasons to discontinue. The discrimination
> assertion was that those who were quietly and involuntarily assigned
> to this effort were disproportionally one minority class, that this
> move was made because a middle manager had problems working with this
> minority class and so decided to get rid of them in a reorg, and that
> executive management, early on, knew this effort probably wouldn't
> result in a profitable product, so in effect, this minority group was
> slowly, and quietly, being pushed toward the door.
Even before Twombly and Iqbal, such a claim would have had a VERY hard
time surviving summary judgment. Without re-hashing the applicable
standards for an anti-discrimination claim, which you may have picked
up here over the course of the past several months during which OP and
others posted many separate threads dealing with "how to prove a
discrimination claim," suffice it to say that the employer's
cancellation of an entire project and termination of all those who had
been assigned to that project would probably fly as an ethnically-
neutral, good faith business justification for that action unless a
plaintiff can prove, not merely allege, that the employer's stated
reason for this action was a "mere pretext" for intentional,
invidiouis discrimination against members of that protected class.
This is a very hard standard to meet, because a "pretext" rebuttal
requires that there be NO other valid, commercially reasonable basis
for the action the employer took. Even if the plaintiff can prove
that ONE of the employer's reasons was discriminatory, the action
still passes muster in a "mixed motive" case so long as there is also
SOME valid, non-discriminatory reason shown.
Let's take an example (I _am_not_ advocating the positions that I put
in the mouth of the "bad guy" employer here - I am simply trying to
state what this hypothetical "bad guy" thinks. So, DON'T go and get
mad at me for hurling racial and ethnic slurs, okay?). Say, frex, the
employer decides that Jews make the best janitors, and that Hispanics
make the best software engineers. So, most of the Jews working for
the company are in the building-maintenance department, and most of
the Hispanics are hired as (or eventually get assigned as) computer
programmers. Later on, the company decides to out-source its
building-maintenance functions, and fires all the Jews who were
working as janitors. Is that discriminatory? No, EVEN IF
plaintiffs can prove that the employer held and expressed such
antediluvian and discriminatory views about Jews, Hispanics, et al.,
so long as the employer had sound business reasons to genuinely
outsource their entire janitorial services division.
If, however, the company did so, but then re-hired all the same Jewish
janitors as "independent contractors" with no benefits and lower pay,
with essentially the same persons fulfilling the same job duties, one
of those Jewish janitors COULD probably make out a viable claim that
the firing and re-hiring under less advantageous terms was a "mere
pretext" for the company to be able to unfairly cut the wages of
Jewish workers, since no other ethnic groups were similarly effected
and nothing else really changed.
I don't know if that example is anywhere close to the "real" facts of
your case, Stan, but it's a start. Does that help?
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Deadrat
766aa2...@v7g2000vbd.googlegroups.com:
> Based on the contents of a "lawyer letter" that I saw in response to a
> former employee's allegations of illegal discrimination, there is a
> law in NJ that allows a victim of a frivolous lawsuit to recover the
> costs of defending the lawsuit. (The former employer was basically
> going on record as not only denying there was any illegal
> discrimination but that the former employee knew there was no
> discrimination, thus any action asserting discrimination was frivolous
> from the word "go", and if the former employee sued anyway, the
> company would try to recover their defense costs.) The question I
> have is how far can such "frivolous" actions go; specifically, A sues
> B and loses, B then claims the suit was frivolous but the claim is
> denied, then A claims that B's "frivolous" assertion was itself
> frivolous and goes after B to recover the costs of defending the
> frivolous assertion that the original lawsuit was frivolous, and
> furthermore the only reason for B's original notice of "frivolous"
> was to scare A into dropping the proposed action.
B doesn't sue in a separate action. In defending against A's suit, B
asks the court to declare the suit frivolous.
>
> I guess part of the problem is how is A supposed to determine if
> there's even a case unless A can have access to other employees, to
> marketing plans and analyses, and to HR records (aka "discovery", I
> guess) to see if there's a pattern of discrimination without filing a
> lawsuit. In this specific case, the company discontinued an R&D
> effort and laid off those who were working on it, which is the end of
> the story as far as they were concerned; the people who were laid off
> were simply unlucky enough to be working on an effort for which there
> were legitimate business reasons to discontinue. The discrimination
> assertion was that those who were quietly and involuntarily assigned
> to this effort were disproportionally one minority class, that this
> move was made because a middle manager had problems working with this
> minority class and so decided to get rid of them in a reorg, and that
> executive management, early on, knew this effort probably wouldn't
> result in a profitable product, so in effect, this minority group was
> slowly, and quietly, being pushed toward the door.
Do you have a question?
Robert Bonomi
Stan K <stan...@hotmail.com> wrote:
[[ lengthy description of "recursive" suing over being sued elided ]]
In practice, the claim of 'frivolity' is alleged before the original suit
is tried, and a counter-suit is filed for the costs of defending the
original suit. Then the suit and counter-suit are consolidated into
a _single_ action. (You have to bring all the claims resulting from a
single set of events between the same parties in a _single_ suit.)
>I guess part of the problem is how is A supposed to determine if
>there's even a case unless A can have access to other employees, to
>marketing plans and analyses, and to HR records (aka "discovery", I
>guess) to see if there's a pattern of discrimination without filing a
>lawsuit.
Well, that can be an issue. But "fishing expeditions" _are_ risky. If
you don't find the smoking gun, or other damning evidence, you -are-
liable for the other side's expenses, since you, in fact, _didn't_ have
a case. <wry grin>
> ..... The discrimination
>assertion was that those who were quietly and involuntarily assigned
>to this effort were disproportionally one minority class, that this
>move was made because a middle manager had problems working with this
>minority class and so decided to get rid of them in a reorg, and that
>executive management, early on, knew this effort probably wouldn't
>result in a profitable product, so in effect, this minority group was
>slowly, and quietly, being pushed toward the door.
The discontinuance of the project, and the lay-off of those who were working
on it was not, in and of itself, illegal discrimination. It was a rational
business decision, by your own admission, that _incidental to that decision_
had an adverse affect on a particular minority group.
The discrimination, _if_ it existed, was *earlier*, in the assignment
of 'selected' staff to that project. But _that_ rests on the presumption
that, _at_the_time_of_assignment_, assignment to that project was
'inferior' to other projects that they might have been place on.
Showing that 'inferiority' is going to be _very_ difficult. One cannot
use the 'results' (project failure) to show that it was _initially_
inferior.
If 'at some point' _after_ the staffing was done, even if 'early on'
in the project, mgmt became aware of probable non-success, that still
does not establish project inferiority _at_the_time_ of the project
staffing.
To establish illegal discrimination, you're going to have to be able to
show, _at_the_time_of_initial_staffing_, that the project was 'doomed to
failure'. Just 'unlikely to succeed' is not enough -- if it _was_ unlikely,
but there was a _big_ payoff *if* it succeeded, then that is a basis for
a 'rational business decision' to pursue it, at least for a while.
If you cannot interest the EEOC, or the relevant State (or Federal)
Department of Labor, in looking into the matter, you'll have a *VERY*
difficult time succeeding with a private action.
If complaints -have- been filed with the relevant governmental agencies,
and not substantiated, that _does_ tend to lend credence to the claim
that the private action is 'frivolous'. that the filer "knew or
reasonably should have known' that there was no factual basis for the
suit.
If complaint were *not* filed with the relevant governmental agencies,
then the private action is premature, at best.
Barry Gold
[Asking about sanctions for "frivolous" lawsuits, usually including
the cost of defending aginst the lawsuit.]
>The question I
>have is how far can such "frivolous" actions go; specifically, A sues
>B and loses, B then claims the suit was frivolous but the claim is
>denied, then A claims that B's "frivolous" assertion was itself
>frivolous and goes after B to recover the costs of defending the
>frivolous assertion that the original lawsuit was frivolous, and
>furthermore the only reason for B's original notice of "frivolous"
>was to scare A into dropping the proposed action.
It is precisely because of this problem that lawsuits for "malicious
prosecution" and "abuse of process" have been limited. As a general
rule, the way things are done is:
A sues B and loses. At the conclusion of the case, B asks the judge
for sanctions under Rule 11 (or its state equivalent). If the judge
agrees that the lawsuit was groundless/frivolous, he awards the
defendant's costs (lawyer's fees, cost of complying with subpoenas,
etc.). If not, the game is over. Since there is no separate lawsuit,
A does not have grounds for suing B over the request for sanctions.
>I guess part of the problem is how is A supposed to determine if
>there's even a case unless A can have access to other employees, to
>marketing plans and analyses, and to HR records (aka "discovery", I
>guess) to see if there's a pattern of discrimination without filing a
>lawsuit.
For purposes of this sort of thing, a lawsuit is considered
"frivolous" if a reasonable person would have known at the outset that
he "had no case". If you need discovery to determine if there is a
case, that is a valid lawsuit, even if you eventually lose.
Note, however, that you are also suposed to discontinue the lawsuit if
you fail to find evidence to support your claims. E.g., you file a
lawsuit for employment discrimination, the company provides names and
last-known addresses for the employees who were laid off, and you
discover that in fact the laid-off employees represent about the same
proportion of "minority" groups as the company as a whole. Then you
are supposed to drop the case (whatever formalities are involved in
that).
>In this specific case, the company discontinued an R&D
>effort and laid off those who were working on it, which is the end of
>the story as far as they were concerned; the people who were laid off
>were simply unlucky enough to be working on an effort for which there
>were legitimate business reasons to discontinue. The discrimination
>assertion was that those who were quietly and involuntarily assigned
>to this effort were disproportionally one minority class, that this
>move was made because a middle manager had problems working with this
>minority class and so decided to get rid of them in a reorg, and that
>executive management, early on, knew this effort probably wouldn't
>result in a profitable product, so in effect, this minority group was
>slowly, and quietly, being pushed toward the door.
Same advice as we have given several other people in this forum: if
you are trying to pursue a discrimination case, you _do not_ want to
do it pro se (for yourself). The law is just too complicated. Get a
lawyer. If no lawyer will handle it, then either
a) the case is too weak to bother pursuing, or
b) the damages are too small to make it worth a lawyer's time
or possibly some combination.
--
Barry Gold, webmaster:
Conchord: http://www.conchord.org
Los Angeles Science Fantasy Society, Inc.: http://www.lasfsinc.org