Tuesday, December 18, 2007


So, you are headed to a Federal Civil Rule 26(f) "meet and confer" conference regarding e-discovery. How do you prepare and what should be discussed? Craig Ball has an excellent piece in Law Technology News entitled "Ball In Your Court: Ask The Right Questions", which can be found at http://www.lawtechnews.com/r5/survey.asp (subscription only). Craig has 50 questions to consider asking.

Off-label False Claims Act Cases

In the last few days, I have made several mentions of off-label FCA cases. There is an interesting off-label Rule 9(b) decision from Judge Kennelly in U.S. Ex Rel. Kennedy v. Aventis Pharmaceuticals, Inc., 2007 WL 2681701 (N.D. Ill., Sept. 13, 2007) and a subsequent denial of a motion for reconsideration found at 2007 WL 3145010 (N.D. Ill., Oct. 23, 2007). In essence, the Judge ruled that an off-label pharmaceutical case survives Rule 9(b) scrutiny even though the complaint did not detail an individual claim that was actually submitted to the government. And, in denying Aventis' motion for reconsideration, the Judge also declined a request for an immediate interlocutory appeal, distinguishing U.S. Ex Rel. Clausen v. Laboratory Corp. of America, Inc., 290 F.3d 1301 (11th Cir. 2002) and U.S. Ex Rel. Russell v. Epic Health Care Management Group, 193 F.3d 304 (5th Cir. 1999).

Disparate Impact

The other day, we wrote about the Supreme Court's request of the Solicitor General for briefing on the testing issues in N.Y. City Board of Education v. Gulino. See http://robertfitzpatrick.blogspot.com/2007/12/board-of-education-of-new-york-city.html. The EEOC has issued a fact sheet on testing which can be found at http://www.eeoc.gov/policy/docs/factemployment_procedures.html, indicating EEOC's continuing interest in challenging tests that have a disparate impact on the basis of race.

While I am not yet prepared to fully dissect the opinion, there is potentially a very important decision from the Sixth Circuit regarding disparate impact and the stringency of the business-necessity defense. The Sixth Circuit's case arises not in an employment context, but in a Fair Housing Act case. Nonetheless, its analysis, and the debate among the judges may well carry over into continuing debates regarding disparate impact and the business-necessity doctrine in employment cases. See Graoch v. Louisville-Jefferson County Metro Human Relations Commission, 2007 U.S. App. LEXIS 26883 (6th Cir., Nov. 21, 2007).

Section 8 Voucher Program

The Graoch case involved the Section 8 voucher program, which is a voluntary program through which the federal government provides rent subsidies to eligible low-income families who rent from participating landlords. While at a later date, I will discuss Graoch's analysis of the business-necessity defense, Graoch is interesting also because it is the second case this month involving the Section 8 program. In Graoch, a landlord, in essence, has been prohibited from withdrawing from a so-called voluntary federal program. In a case before the Maryland Court of Appeals, the landlord was required to participate in the Section 8 program on the ground that a refusal to participate would constitute "source of income" discrimination under the Montgomery County, Maryland anti-discrimination law, MCC, Ch. 27, §§ 27-1 through 27-63. See Montgomery County v. Glenmont Hills Assoc., 2007 Md. LEXIS 719 (Md. 2007).

Ad Damnum Clause

Last week, we summarized the holding in Hoang v. Hewitt Avenue Associates, LLC (see http://robertfitzpatrick.blogspot.com/2007/12/there-is-lots-going-on-at-end-of-week.html). As promised, a few thoughts regarding the implications of this decision. At first blush, one sympathizes with the litigant whose judgment of $1.89 million is reduced to a mere $100,000 because the ad damnum clause in the original complaint sought damages "in excess of $100,000." But, sympathy begins to erode when one sees that the victorious plaintiff never once sought to amend the ad damnum clause to advise the defendant that the plaintiff sought not a mere $100,000, but far, far more. The simple best practice tip to be taken away from this Maryland case is that one should timely amend the ad damnum clause. The Court of Appeals seems to indicate that timely amendments that do not blindside the defense ought to be routinely granted.

Layoffs and ERISA Section 510 Claims

Recently, the Supreme Court denied cert. in Eichom v. AT&T Corp., 484 F.3d 644 (3d 2007). See also the prior opinion in Eichom I of the Third Circuit at 248 F.3d 131 (3d 2001).

As pointed out by guest blogger Colleen Medill in the Workplace Prof blog, "Eichom is symbolic of a new genre of Section 510 claims where the claim of interference is not made by a lone individual who allegedly was targeted for retaliation, but rather stems from a corporation restructuring where employee benefits (most notably, their costs) are a factor in how the reorganization is structured." So, with the possibility of recession looming on the horizon, and the inevitable increase in layoffs, plaintiff and defense lawyers both need to be mindful, as always, of age discrimination claims under both federal and state law, WARN Act claims, challenges to releases under OWBPA, and now this new genre of claim - - a Section 510 ERISA claim.

Mind-reading To Prove Racial Bias

The American Psychological Association (I note using federal grant money from the National Institute of Mental Health) has issued a report entitled "Functional Magnetic Resonance Imaging: A New Research Tool" in which it states at the outset: "A brain scanning technology called functional magnetic resonance imaging (fMRI) isn't quite a mind-reader, but it comes close." The article goes on to opine that the results of fMRI may be able to demonstrate racial prejudice. The report states that: "Even though all of the participants [in research performed by a psychologist] said they weren't prejudiced, their brains told a different story."

Having decades ago fought the good fight over the use of the so-called lie detector in the workplace, one is saddened to see an organization like the APA suggesting that a brain scan might reveal prejudice. With this report in hand, let me count the days before a plaintiff's attorney argues to the court that the alleged discriminating official should have a fMRI administered in a racial prejudice case. Such nonsense can only make those who pine for the good ol' days of the STASI and the gulag happy. Many, in the wake of the pendulum swinging too far to prohibit conduct as sex harassment, have joked about the "sex police". Now, will the race robocops attach scans to our brains to ferret out those who need to be sent to reeducation camps. Garbage like this from the APA belongs one place only - - the trash can. And, NIMH, or at least the taxpayers, should be aghast that our scarce resources are being wasted on garbage like this.

Attention Deficit Disorder

Attention Deficit Disorder, many times called Attention Deficit Hyperactivity Disorder, has been the subject of much litigation under the ADA, both in the employment and educational contexts. Recently, Judge Oliver of the Northern District of Ohio in Braud v. Cuyahoga Valley Career Center, 2007 U.S. U.S. Dist. LEXIS 72123 (N.D. Ohio, Sept. 27, 2007), held that ADHD is not a disability within the meaning of the Americans with Disabilities Act, finding that ADHD did not substantially limit him in any major life activity. In doing so, Judge Oliver opined that the courts "have viewed with skepticism the claims of plaintiffs that have been diagnosed with ADHD who claim to be disabled." See the opinions of Judge Lamberth in Steere v. The George Washington University, et al., 2005 U.S. Dist. LEXIS 4313 (D.D.C., Mar. 22, 2005) and Steere v. The George Washington University School of Medicine and Health Sciences, 2006 U.S. Dist. LEXIS 46671 (D.D.C., July 12, 2006).

Retaliation - Protected Activity

For employers, it is often times difficult to draw the line between what constitutes "protected activity" and what is simply unacceptable bellyaching that can be the basis for termination. Recently, the Sixth Circuit addressed this recurring issue in Fox v. Eagle Distributing Co., 2007 U.S. App. LEXIS 28887 (6th Cir., Dec. 14, 2007). The employee in Fox had filed a charge of discrimination with EEOC, which is clearly protected activity. Thereafter, he repeatedly told co-workers and customers that his employer was out to get him and that he was going to sue the company for millions. In his complaints to customers, he never claimed that his employer was discriminating against him. When the company was informed of what he had been saying to customers, he was fired for a "poor attitude". Not surprisingly, Fox contended that his termination was retaliatory. The Sixth Circuit held that he had not engaged in protected activity because he had not complained to customers that he was a victim of discrimination by his employer.

Clearly, Eagle Distributing Co. is the courageous exception to the rule. Ask yourself - - if you were asked to advise the employer in these circumstances where an EEOC charge has already been filed, and the employee is complaining to customers, would you recommend that your client terminate, and run the risk of the inevitable retaliation claim. Tip of the hat to Eagle Distributing Co.

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