New Name - New Focus

NEW NAME

I have renamed the blog because I will be including cases from federal circuit courts and the U.S. Supreme Court, in addition to opinions out of the Florida appellate courts.  Coverage will also extend to ADR cases, such as the following:

MEDIATION / CONFIDENTIALITY

Benes v. A.B. Data, Ltd., 2013 U.S. App. LEXIS 15270 (7th Cir. Wis. July 26, 2013)

Are mediations really confidential?

The facts as set forth in the opinion are that Benes was an employee who sued his employer after only for four months on the job, alleging sex discrimination.  At the EEOC-arranged mediation, the parties caucused after an initial joint session and, upon receiving the settlement proposal, Benes stormed into the room occupied by his employer’s representatives and said loudly: “You can take your proposal and shove it up your ass and fire me and I'll see you in court.” Benes stalked out, and, within an hour, the employer “accepted Benes’s counterproposal: it fired him.”  Benes then proceeded with an anti-retaliation claim and abandoned his sex discrimination claim.  The district court granted summary judgment in favor of the employer, holding that because the employee was fired for misconduct during the mediation, not for making or supporting a charge of discrimination, he had no claim for retaliation.

The Seventh Circuit affirmed, stating:  “Mediation would be less useful, and serious claims of discrimination therefore would be harder to vindicate, if people could with impunity ignore the structure established by the mediator. Allowing a sanction against a person who by misconduct wrecks a mediation will promote the goals of [42 U.S.C.] §2000e-3(a). Benes has not cited any case holding that misconduct during a mediation must be ignored. Many cases show that misconduct during litigation may be the basis of sanctions (by the court, if not by another litigant).  We cannot see why misconduct during mediation should be consequence free. Judges do not supervise mediation, which makes it all the more important that transgressions be dealt with in some other fashion.” (citations omitted).   

       

This case should give pause to those of us that tell the litigants that everything is confidential.  See Ellen E. Deason, “Predictable Mediation Confidentiality in the U.S. Federal System,” 17 Ohio St. J. on Disp. Resol. 239 (2002).

ARBITRATION

Lagstein v. Certain Underwriters at Lloyd's of London, 2013 U.S. App. LEXIS 16114 (9^th Cir. Aug. 5, 2013) is the latest in the protracted battle between Dr. Lagstein, a nuclear cardiologist, who made a claim in 2001 on a disability insurance policy against Lloyd's of London.  “Lloyd’s pussyfooted for years only to eventually deny the claim, so Dr. Lagstein sued in the United States District Court for the District of Nevada. Lloyd's moved to arbitrate pursuant to the policy, and the District Court granted the motion.

Illustrating the maxim ‘be careful what you wish for,’ the arbitration was wildly successful for Dr. Lagstein, resulting in a total damages award of over $6 million against Lloyd's, including $4 million in punitive damages. Lloyd's, unhappy with the result of the arbitration it had demanded, successfully moved in the District Court to vacate the award. Dr. Lagstein appealed, and this court reversed and remanded with instructions to confirm the award. The District Court then confirmed the award but denied Dr. Lagstein’s request for interest and attorneys’ fees.”

The court now reversed the ruling on interest and attorneys’ fees, confirming the power of the arbitrators to award pre-award interest on contract damages, the power of the court to award post-award prejudgment interest on the total award, including non-contract damages and caps it off by awarding post-judgment interest on the total judgment, including pre-judgment interest to the date of the judgment confirming the award.

EMPLOYMENT

Dejesus v. Hf Mgmt. Servs., 2013 U.S. App. LEXIS 16105 (2d Cir. August 5, 2013) affirmed the dismissal of a suit filed by an employee based on allegations by a plaintiff that she was a wage-earning employee of defendant for three years and that she worked more than forty hours per week during “some or all weeks” of her employment and, in violation of the FLSA, was not paid at a rate of at least 1.5 times her regular wage for each hour in excess of forty hours, was insufficient.  Plaintiff relied on the FLSA's provision in 29 U.S.C. § 207(a)(1).  In affirming, the court reasoned that the complaint must contain sufficient factual matter to state a claim, citing to Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).  More specifically, in Lundy v. Catholic Health System of Long Island, 711 F.3d 106 (2d Cir. 2013), the court had concluded that “to state a plausible FLSA overtime claim, a plaintiff must sufficiently allege 40 hours of work in a given workweek as well as some uncompensated time in excess of the 40 hours.” Lundy, 711 F.3d at 114. 

Dejesus provided less factual specificity than did the plaintiff in Lundy. “She did not estimate her hours in any or all weeks or provide any other factual context or content. Indeed, her complaint was devoid of any numbers to consider beyond those plucked from the statute… Whatever the precise level of specificity that was required of the complaint, Dejesus at least was required to do more than repeat the language of the statute.”