September 2019, Attorney Bagnell In the News, Philadelphia Public Radio
June 2019, Attorney Bagnell in the News
Vadnais v. SIG Sauer, Inc.
ATTORNEY BAGNELL IN THE NEWS
litigation commentary and review publishes work by attorney bagnell
Mr. Bagnell's analysis of a 1945 military trial involving the captain of the USS Indianapolis was published in the Spring edition of Litigation Commentary and Review.
aTTORNEY BAGNELL NAMED in 5TH WINTER EDITION AND 24TH EDITION OF BEST LAWYERS IN AMERICA
January 4, 2018; August 15, 2017
Best Lawyers is the oldest and most respected peer review publication in the legal profession. Recognition in Best Lawyers is widely regarded by both clients and legal professionals as a significant honor, conferred on a lawyer by his or her peers.
Since it was first published in 1983, Best Lawyers has become universally regarded as the definitive guide to legal excellence. Eighty-three thousand leading attorneys are eligible to vote (from around the world), and Best Lawyers has received almost 10 million evaluations on the legal abilities of other lawyers based on their specific practice areas around the world. For additional information about methodology please visit: Best Lawyers methodology.
For the 2018 Edition of The Best Lawyers in America, 7.4 million votes were analyzed, which resulted in more than 58,000 leading lawyers being included in the new edition. Lawyers are not required or allowed to pay a fee to be listed; therefore, inclusion in Best Lawyers is considered a singular honor.
Attorney Bagnell REPRESENTING SWAT TEAM MEMBER IN PRODUCT LIABILITY AND UNFAIR TRADE PRACTICES CASE
August 4, 2017
Attorney Bagnell is currently representing a SWAT team member seeking damages when his firearm discharged after falling to the ground. Since the suit was filed, the manufacturer has issued a voluntary upgrade of the pistol due to problems with the weapon's trigger weight, which enable the gun to fire without a voluntary trigger pull in such a situation. The Complaint seeks in excess of $1 million for each of three causes of action, each of which requires proof of different elements and allows a jury to award different types of damages, including compensatory and punitive.
"What amount is ultimately awarded is of course up to a jury and the Judge as I have mentioned. A weapon that fires without a voluntary trigger pull is a very serious issue, the amounts in question reflect that, and the company's post-suit "upgrade" reflects it, as well. This is not the 1880's where you accidentally dropped your revolver and it fired; weapons technology has advanced well beyond that and drop fires simply should not happen, especially from three feet. My client, and other members of the law enforcement community, put their lives on the line every day for our protection; they should not have to worry about a weapons malfunction as serious as this on top of their other responsibilities."
"Also, the first thing they command a criminal with a weapon is to drop it. They will hesitate to do that when there are weapons out there with such a clear drop defect out of fear for their own lives, and those of innocent bystanders."
Mr. Bagnell commented that “the suit has been validated already in our view, as the post-suit upgrade indicates the company's awareness of the defect. We look forward to having a jury hear the facts of the case."
Attorney Bagnell Defeats AIG Motion for Summary Judgment in Unfair Insurance Practices Case
Court orders jury trial on AIG claims handling practices
April 6, 2016. In a case that has spanned almost eight years, the United States District Court for the District Connecticut yesterday denied motions by AIG and its wholly-owned subsidiary National Union Fire Insurance Company for summary judgment against the firm’s client, Teri Tucker. Ms. Tucker obtained a $4.2 million jury verdict in July 2008 and thereafter was forced to sue her former employer’s insurers, AIG and National Union Fire Insurance Company, for unfair trade practices among other claims.
In a 46-page decision, the Court wrote that it is for a jury to decide “whether Defendants engaged in unfair business practices” in violation of Connecticut’s Unfair Insurance Practices Act, which sets no limit on punitive damages for violations. The Court noted that Tucker had advanced at least four other adjudicated cases of claims mishandling by AIG entities, including Acacia Research Corp. v. National Union Fire Ins. Co., Anderson v. American International Group, Inc., United Technologies Corp. v. American Home Assurance, and Victaulic v. American Homes Assurance Co., permitting a reasonable jury to find in her favor.
Jeff Bagnell, counsel for Ms.Tucker in both the underlying case and the present action against AIG, stated that he is extremely pleased that, after such an extraordinary delay, a jury will finally be able to hear evidence of AIG’s claims handling practices in this case. “A delay of this extreme nature is exactly what many insurance companies hope for when defending against claims, knowing full well its deterrent effect against future policyholders and third parties from ever bringing claims in the first place. I look forward to having a jury decide the facts of this case and securing justice for Teri.”
Court of Appeals Remands Firm’s Steiner v. Lewmar Inc. Unfair Trade Practices Case to Trial Court
March 8, 2016. The United States Court of Appeals for the Second Circuit has remanded the firm’s Steiner v. Lewmar Inc. Unfair Trade Practices Case to the U.S. District Court for a determination of more than $600,000 in attorneys’ fees and costs incurred in prosecuting the intellectual property action over more than six years. The firm prevailed on all seven causes of action in the District Court. Writing for a unanimous Court, Judge Dennis Chin wrote that it would be an abuse of discretion for the district court to refrain from awarding fees if based on defendants’ capitulation to judgment before trial. Co-counsel for Mr. Steiner, Scott Lucas and Jeff Bagnell, said that they were very pleased with the Court of Appeals’ decision, and look forward to having the district court decide the issue of reasonable fees after six years of litigation including an appeal.
Firm Defeats ADA Summary Judgment Motion Against Terminated Executive With Cancer, September 2015
Court denies summary judgment motion as to all counts of ADA Complaint
September 10, 2015. Court finds that a jury could find on all counts for an executive with over $1.7 million in economic losses who was terminated after being diagnosed with lung cancer. Jeff Bagnell, lead counsel for the plaintiff, stated that he was pleased with the Court’s prompt ruling and correct application of Rule 56 of the Federal Rules of Civil Procedure. “The Court’s ruling indirectly shows the extent to which abuse of Rule 56, with its typically enormous delays and costs, has become institutionalized in the federal civil system. Years ago federal Judge Patricia Wald once warned of summary judgment transforming into ‘a juggernaut which, if not carefully monitored, could threaten the relatively small residue of civil trials that remain.’ So we look forward to having a jury hear the case in keeping with the Seventh Amendment,” he stated.
Attorney Bagnell Named Top 50 Lawyer in Connecticut
September 10, 2015. We are proud to announce that Attorney Bagnell was named one of the top 50 attorneys practicing in Connecticut by Superlawyers Magazine, October 2014.
Firm Defeats ADA Summary Judgment Motion Against Terminated Westport Computer Teacher
March 14, 2014. “Rather, when the record is reviewed as a whole, the Court finds sufficient evidence to create a genuine issue for trial as to whether Defendant’s reason was a pretext for discrimination. There is substantial evidence of Landon’s animosity concerning teacher absences. Plaintiff had significantly more computer experience than her replacement. Plaintiff was tenured, her replacement was not. Plaintiff had far less classroom experience than her replacement, thus raising a question as to why Defendant would prefer to have Plaintiff in the classroom. Plaintiff worked with each of the students once a week and, thus, if she were absent for medical reasons, her absence would have far less impact on the students than as a classroom teacher, who was responsible for the same 20 to 25 students all day, every day. Moreover, for over three years, Defendant had been willing to split the computer teacher position between Plaintiff at. 8 FTE and another .2 FTE teacher. Additionally, although Defendant was very accommodating about Plaintiff’s requests for extended leave, it never engaged in an interactive process with her to determine what accommodations she would need to return to her former job. Finally, when Plaintiff was cleared by her doctor in 2010 to return to her computer teaching job, Defendant refused to allow her to return to this position.”
Accordingly, after a careful review of the record, the Court concludes that there are genuine issues of material fact as to Plaintiff’s disability discrimination claims set forth in Count III and denies Defendant’s motion for summary judgment as to Count III.
U.S. District Court Denies Three Summary Judgment Motions of Marine Manufacturer
Firm successfully defends three summary judgment motions in trademark infringement and unfair trade practices case
PR Newswire. Dax Labs LLC today announced that the United States District Court for the District of Connecticut has denied three summary judgment motions of marine manufacturer Lewmar, Inc. in a trademark infringement and unfair trade practices case. Lewmar claimed in its motions that it did not breach the covenant of good faith and fair dealing when it manufactured an imitation of a patented sailboat winch handle known as the “OneTouch®,” and took other actions designed to deprive Dax Labs LLC of the benefits of a 2006 licensing agreement with Lewmar to manufacture and sell Dax’s award-winning winch handle. In rejecting all three of Lewmar’s motions, the Court cited evidence supporting Dax’s claims that Lewmar engaged in intentional bad faith conduct, including the manufacture of a competing winch handle known as “LiteTouch.”
Trial on the remaining issues in the case is currently scheduled to begin later this year. Donald J. Steiner et al. v. Lewmar, Inc. et al., 3:09CV1976(DJS).
Dax Labs LLC and Donald J. Steiner are represented by Lucas Bagnell Varga LLC in Southport, Connecticut.
Attorney Bagnell named top 50 litigation star in Connecticut
Euromoney/Institutional Investor's Benchmark Litigation, The Definitive Guide to America's Leading Plaintiff Firms & Attorneys.
August 6, 2013. Jeff Bagnell has been named named a top 50 litigation star in Connecticut in Euromoney / Institutional Investor’s Benchmark Litigation.
Benchmark Litigation identifies the leading US trial attorneys and firms at the local and national levels. Focused exclusively on the US litigation market, the publication’s rankings and editorials are the result of extensive interviews with private practice lawyers and in-house counsel. Supplementary firm information is also submitted in the form of a questionnaire. The guide’s “local litigation stars” reflect lawyers who are recommended by peers and clients to have established consistent reputations as trial attorneys, while “future stars” are those litigators who are highlighted as likely to be become “local litigation stars” in coming editions. Benchmark’s independent research is conducted annually between February and June.
Lucas Bagnell Varga LLC Secures $17.4 Million Award For Former Applied Biosystems Executives
New York Times
December 6, 2012. A three-member panel of the American Arbitration Association today awarded former executives of Applied Biosystems, Inc., f/k/a Perkin Elmer Corporation, $17.4 million in unpaid change in control benefits from Life Technologies Corporation, one of the world’s largest biotechnology companies (NASDAQ: LIFE). The case was presented to a former federal judge, former state judge and a senior member of the Connecticut Bar over a period of two years.
According to the claim of the executives, the incentive compensation became due from Life Technologies Corporation when it assumed the obligations of the executives’ employment agreements after acquiring Applied Biosystems, Inc. in November 2008. Life Technologies argued the executives were misreading their agreements and were not entitled to continued stock-based benefit awards.
In finding for the executives, the arbitration Panel held the agreements were breached as “the Company made no effort to provide [the claimed benefits], and the Claimants are entitled to them.”
“We are very pleased with the outcome, and are happy our clients will finally receive these sums which they earned and are long overdue,” said Scott Lucas, lead trial counsel for the executives. “Consultants from Citrin Cooperman were instrumental in helping us present our clients’ complex damages claim to the Panel,” added Jeff Bagnell, who handled the damages aspect of the case at trial.
The executives were represented by Lucas Bagnell Varga LLC in Southport, Connecticut. Life Technologies was represented by DLA Piper.
This item has been reprinted in many major news sources, including the New York Times, the Wall Street Journal, Marketwatch, Bloomberg, and others.
U.S. District Court denies Town of Westport’s motion to dismiss pregnant teacher’s FMLA claims
November 12, 2012. In this widely reported case handled by Mr. Bagnell, the U.S. District Court for the District of Connecticut denied the Westport Board of Education’s motion to dismiss the FMLA claims of a tenured teacher who was dismissed shortly after informing her principal that she might need limited time off to recuperate from a spinal injury incurred during childbirth. The Court emphasized that employees who take maternity leave are entitled to return to their position upon termination of leave, or an equivalent position. An “equivalent position” under the FMLA must be “virtually identical” to the original position in several different ways analyzed in the opinion.
Attorney Bagnell Obtains E-discovery Sanctions
August 7, 2012. Attorney Bagnell represented the plaintiff in the e-discovery case discussed in an the recent article, “Case Where IT Tech’s Fast-Talk Had Zero Persuasive Value with Judge.”
Firm Prevails on Issue of First Impression Before Connecticut Supreme Court
August 1, 2012. Attorney Bagnell successfully argues case for wage law plaintiffs.
Attorney Bagnell Speaking at Boston NELA Conference
March 18, 2011. Attorneys Lucas and Bagnell will each be speaking in Boston at the 7th Annual New England Regional Conference of the National Employment Lawyers Association on May 13-14, 2011. Attorneys Lucas and Bagnell will be speaking on trial practice and developing emotional distress and punitive damages evidence. U.S. District Court Judge Nancy S. Gertner will be serving as keynote speaker at the conference at the Colonnade Hotel.
Employment Law 360: Sharing Focus Group Results
November 17, 2008. Attorney Bagnell quoted on the value of focus groups in conducting pre-trial research.
Jury Awards Over $4 Million to Employee in Retaliation Case
July 28, 2008. Attorney Bagnell represented the prevailing party in this case, which was recently tried in U.S. District Court in Bridgeport, Connecticut. As reported in the Connecticut Employment Law Blog (July 2008) and elsewhere, his client brought claims of retaliation in violation of the Civil Rights Act of 1964, as well as Connecticut law prohibiting retaliation against employees who speak out in the workplace on matters of public concern. The jury unanimously found in her favor on all counts, awarding her over $4 million in damages.
Jury Awards $4MM+ to Employee in Retaliation Case by Daniel Schwartz.
What's a Four Million Dollar Jury Verdict Look Like? by Daniel Schwartz.
Attorney Bagnell Successfully Defends Wage Claim; Establishes New Precedent in the Area of Wage and Hour Law
July 10, 2008. As recently reported in the Connecticut Employment Law Blog (July 2008) and the Employee Benefits Institute of America (August 2008), Attorney Bagnell successfully defended a substantial ($600,000) wage claim in Tamborino v. Velocity Express, Inc., 2008 WL 2582529 (Conn. Super. Ct. 2008) in which a new precedent was established regarding the status of COBRA, signing bonus, and accrued vacation.
Employer Did Not Violate State Law or Employment Agreement When it Withheld COBRA Premiums From Severance Pay, EIBA Weekly, 14 Aug. 2008 (requires login).
Bagnell Obtains Contempt of Court Sanctions for Interference with Forensic Computer Inspection
April 15, 2008. Attorney Bagnell represented the plaintiff in a wrongful termination case, Sterle v. Elizabeth Arden, Inc., 2008 WL 961216 (D. Conn. Apr. 9, 2008) reported recently by K&L Gates in their Electronic Discovery Law blog. The court entered an inspection order granting the plaintiff access to certain electronic records in support of their case. When electronic discovery efforts were hindered, Attorney Bagnell moved for a finding of contempt based on defense counsel’s violation of the inspection order, and moved for sanctions in the form of attorneys’ fees. This motion was granted, and the defendant’s motion for a protective order to prevent or suspend all further inspection of computer systems was denied. See:
Sterle v. Elizabeth Arden, Inc., 2008 WL 961216 (D. Conn. Apr. 9, 2008) in “More Must Read 2008 Cases – Part Three” by Ralph Losey (e-Discovery Team).
Sanctions Where Creation Of Court-Ordered Forensic Computer Image Obstructed by Anthony C. Porcelli
EBRUARY 2008 INTERVIEW WITH JURY SOLUTIONS
Carolyn Koch, J.D. , Jury Solutions Newsletter
February 19, 2008. A graduate of Boston College Law School, Attorney Jeff Bagnell of Westport, Connecticut recently conducted two focus groups with Jury Solutions, LLC. Jeff has been rated among the top 5% of attorneys practicing in Connecticut for the last three years, and he represents corporate and individual clients in trials and appeals relating to federal and state civil rights laws, contract disputes, and employment law claims. In the two cases in question, he made the tactical decision to provide opposing counsel and the judge with excerpts from the mock trial jury deliberations during settlement conferences. I asked Jeff about his decision and the experience he had with the focus groups.
Jury Solutions: Explain how you used the focus group result during your settlement conference:
Attorney Bagnell: I think it was the fourth settlement conference in an FMLA retaliation case in federal court where my client had been terminated two days after heart surgery. The judge had been working very hard for a long time to bring both sides together, and I decided to bring audio visual equipment and a DVD of the mock jury deliberations to show the judge and the other side. At the very least, I thought it would be an aid to the judge in trying to resolve the case. Everyone was receptive to idea and we watched about 15 minutes of their deliberations, which highlighted the key issues in the case. In the clip, one of the mock jurors emphatically described the decision to terminate the plaintiff as a “incredible blunder” which could have killed her due to her heart condition. When asked to describe outrageousness on a scale from 1 to 10, this mock juror rated it an “11.” The video camera recording the deliberations panned around the room and captured the other jurors commenting and nodding in agreement. I think this had some effect on corporate counsel and their insurance representative. Seeing the mock jurors discuss the case “live” was clearly more impacting than just having the lawyers argue the case back and forth, which had already been done. We were able to settle the case for a number approaching seven figures, which I think was greatly facilitated by the focus group and sharing some of the results.
Jury Solutions: What about your other case?
Attorney Bagnell: This was a Title IX case involving a sexual assault on a 28 year old college student on her first day of class. Under the Supreme Court’s Title IX jurisprudence, we had to prove that the defendant educational institution exhibited “deliberate indifference” to her rights. This is a much higher burden of proof than you normally have in a civil case. In our third settlement conference, I played excerpts of the mock trial deliberations to the judge, along with videotaped deposition testimony of the defendant’s key witness. I had videotaped this witness because her testimony about earlier incidents of sexual harassment was so critical. The mock jurors found her testimony and overall demeanor to be less than credible, to put it mildly, and I wanted the judge to see that. The judge watched the video and mock trial deliberations, and then later showed them to opposing counsel in Chambers.
At the conference, the focus group results interacted well with a spoliation ruling we obtained earlier in the case for destruction of electronic evidence. The defendant was certainly aware the adverse inference instruction we had obtained put them in a difficult position, but I think they believed they could prevail because of the higher burden of proof facing the plaintiff. When they saw how negatively the jurors’ reacted to the deletion of emails and other documents, however, I think that feeling of confidence went away. A few jurors said that any doubt that they had about the case was in fact completely eliminated by the defendant’s conduct in deleting records.
The judge was able to mediate a substantial settlement. This was very satisfying given what my client had gone through and the legal challenges presented by the heightened burden of proof and a lack of economic damages.
Jury Solutions: I know why I think focus groups are so great but as an attorney in the trenches, tell me what you found most valuable:
Attorney Bagnell: A lot of things. First, the exercise forces you to present both sides of the case objectively and that’s difficult. After years of trying to help your client obtain a just outcome, both sides can start to overlook weaknesses and become too close to their side of the case. I believe psychologists call this an “affective bias” and the focus group exercise is invaluable in guarding against it. It’s been amazing to see how often impartial people emphasize issues in a case that the lawyers haven’t focused on. It is the life experience and intelligence of twelve people as opposed to one or two, and that almost always yields very helpful insights.
Second, it also conveys to the court and your opponent that you are taking the case seriously. A lawyer who spends the time and money that a focus group requires usually won’t walk away without trying the case or a fair settlement. It also shows the judge that you have looked at the issues in depth from all perspectives. I find that judges appreciate it because they can see you are trying to be objective and not adopting a see-no-evil approach. The easiest way to show objective support for your position, in my view, is to point to how 12 impartial people reacted to the facts.
I’ve also found that focus groups are helpful in conveying a settlement position. Instead of appearing that you are valuing the case based on your own opinion of liability and damages, or your client’s opinion, you are presenting a case value based on what disinterested people believe is appropriate.
Another advantage is that you end up much better prepared to actually try the case. There aren’t that many civil trials anymore and the focus group forces you to get on your feet, present both sides, develop inferences from the evidence, and anticipate objections to testimony and exhibits. It’s a method of preparation that is superior to just making your case on paper.
Client’s Free Speech Claim Allowed to Go to Jury
November 13, 2007. In this case of first impression, recently reported in the Connecticut Employment Law Blog, Attorney Bagnell’s client successfully argued that terminating an employee who expresses reluctance to testify on behalf of an employer states a valid retaliation claim under section 31-51q of Connecticut’s General Statutes. This law prevents employers from retaliating against employees who speak out in the workplace on matters of public concern. The federal district court hearing the case ruled in his client’s favor and has allowed the case to go to a jury.
Visit the Connecticut Employment Law Blog to see the entire article: Employee’s First Amendment Claim Based on Expressing Reluctance to Testify Allowed to Go To Trial by Daniel Schwartz.
IT Tech’s Fast-Talk Had Zero Persuasive Value with Judge
Ralph Losey, eDiscovery Team
July 26, 2007. A district court judge in Connecticut recently rejected defendant’s explanation as to why the hard drives of key employees contained only zeros, and imposed sanctions for spoliation. Jane Doe v. Norwalk Community College, 2007 WL 2066496, 2007 LEXIS 51084 (D. Conn. July 16, 2007) … The plaintiff is a student alleging her college was negligent in its retention and supervision of a professor who sexually assaulted her. The now “former professor” is also a defendant, but with no legal representation. The student was permitted to file suit as “Jane Doe” to protect her privacy.
After two years of litigation Jane Doe persuaded the court that the college was withholding electronic evidence. The school was ordered to produce the computers of key witnesses for inspection [which] showed that several of the computers had no data, they were literally all zeros.
Jane Doe’s next move was to file a motion for sanctions based on spoliation of evidence. She alleged that “the hard drives of key witnesses in this case were scrubbed” or “completely ‘wiped’ of data.” This led to a flurry of affidavits by Doe’s expert witness and the counter-expert used by the college … Of course, the experts did not agree. [NCC] came up with a laundry list of excuses for why two computers were “full of nothing.” [They] tried saying it was the wrong computer, then that it was not wiped at all, just imaged. Then, as a last resort, he settled on the best excuse of many an IT Tech, that the “all zeros” problem was simply the result of “computer failure” …
In the end Judge Hall granted Jane Doe’s motion, and awarded an adverse jury instruction based on the grossly negligent failure of the college to preserve ESI. She also awarded Doe her expert witness’s costs …
Spoliation of Evidence Decision
Norwalk, CT, Matt Breslow, Stamford Advocate
July 17, 2007. A federal judge said in a ruling yesterday that Norwalk Community College was “at least grossly negligent, if not reckless,” in failing to preserve computer evidence about an allegation of a male professor groping a female student, who filed suit over the incident.
If the federal Title IX lawsuit goes to trial, U.S. District Judge Janet Hall ruled that jurors will be told they can infer the missing evidence would have been unfavorable to NCC.
Additionally, Hall ruled the alleged victim – who is proceeding as “Jane Doe” – is entitled to reimbursement by NCC for her expenses in hiring a forensic computer analyst to inspect the computers of several administrators.
Doe’s attorney, Jeffrey Bagnell of Westport, filed a motion in January seeking sanctions against NCC in his client’s suit against the college, the Connecticut Community Colleges Board of Trustees, and Ronald Masi, a former part-time adjunct NCC professor who allegedly groped Doe when she was taking his criminal justice class.
Hall wrote that she believed NCC was obligated to preserve records about Doe’s allegations against Masi once the college learned about them shortly after the February 2004 incident.
“At that time, even if Doe had not yet filed her lawsuit, the defendants should have known that any documents, including e-mails and hard drives, related to Professor Masi could potentially be relevant to future litigation,” the judge wrote.
However, “the defendants admit that they ‘scrubbed’ Masi’s hard drive ‘pursuant to normal NCC practice,’ ” Hall wrote, referring to a filing from the state attorney general’s office, which is defending NCC and the community colleges board.
A filing Bagnell made in support of his motion for sanctions states that, according to the head of the forensic computer analyst firm, the computer of a “key witness” in the case – the head of NCC’s criminal justice program – was replaced in December 2004. Doe’s suit was filed a month earlier.
Hall wrote that the computer’s replacement showed “at least gross negligence, if not more.”
It was replaced in December 2004, a month after the lawsuit was filed.
Bagnell’s filing states the forensic computer analyst found “numerous anomalies” while inspecting NCC’s hard drives, including some cases of “wiped data.”
Masi resigned in the wake of the allegation and was arrested later that year by state police, who charged him with fourth-degree sexual assault in the incident. The charge was erased from Masi’s record after he successfully completed accelerated rehabilitation, a special form of probation for first-time offenders that requires no guilty plea.
Doe’s lawsuit, which seeks unspecified damages, alleges that NCC knew Masi engaged in similar conduct in the past “but exhibited deliberate or reckless indifference toward it.”
In a separate ruling yesterday, Hall denied a motion the state attorney general’s office filed on behalf of NCC and the community colleges board seeking to have the suit thrown out.
State Attorney General Richard Blumenthal yesterday said he must review Hall’s rulings and consult with NCC about the next step.
Masi could not be reached for comment yesterday; Bagnell and NCC President David Levinson declined comment.
Copyright © 2007, Southern Connecticut Newspapers, Inc.
Brokerage Firm Pays $1.5 Million for Sex Harassment
Equal Employment Opportunity Commission v. David Lerner Associates
Thomas B. Scheffer, Connecticut Law Tribune
October 16, 2006. The Darien office of a New York-based securities brokerage has agreed to pay $1.5 million to settle sexual harassment claims brought by some of the 14 women who worked for branch manager Jack Lamont.
Arnold J. Lizana III, the Equal Employment Opportunity Commission trial attorney in Boston who handled the case, said the agency was motivated to get involved due to alarming allegations from four former David Lerner Associates employees. The EEOC sued on behalf of the four, and “a class of similarly situated female employees,” pressing for the statutory maximum $200,000 per-person penalty. The EEOC proposed setting up a fund to pay damages to known and unknown victims of the harassment, based on half of the firm’s maximum $2.8 million exposure if all 14 women turned out to be victimized.
Testimony from EEOC investigator Edward Ostolski [detailed allegations of] Lamont’s inappropriate behavior…
Susan Sheehan, of West Haven, was the first to complain to the Connecticut Commission on Human Rights and Opportunities. In an affidavit, she claimed Lamont confronted her “daily” with [inappropriate speech]. Sarah W. Poston, of Bridgeport’s Zeldes, Needle & Cooper, represented Sheehan.
Barbara Mrozik, of Seymour, was one of the original four plaintiffs, and is represented by Jeffrey S. Bagnell, of Horner & Bagnell in Greenwich. In her complaint, Mrozik said she was embarrassed when Lamont made her stand up and turn around to display her clothes, shoes and hair. In one instance, she claimed, Lamont took a “pretty big knife” out of his pocket and threatened “that if we won’t start producing good numbers, he will start chopping our fingers off.”
When an anonymous complaint was e-mailed to Lerner’s Syosset, N .Y., headquarters, Lamont called the female brokers into his office and threatened, “If I even suspect it is one of you that sent that e-mail, I will fire you.”
The brokerage was represented by Mark S. Mancher, of the Melville, N.Y,, office of Jackson Lewis. He did not return a call for comment by press time.
The EEOC and Lerner engaged in a four month “conciliation” in late 2004, but broke off talks after the brokerage failed to offer specific monetary amounts to cover the damages of unnamed former employees.
Bagnell said, “We’re very pleased with this outcome.” He noted the resolution was greatly facilitated by U.S. Magistrate Judge William I. Garfinkel in Bridgeport, who devoted more than 22 hours overseeing the settlement process.
Bagnell added that part of the $1.5 million fund is available for Lerner employees or ex-employees who have not yet come forward.
Jury Verdict in FMLA Case
Magistrate found an employee’s firing was illegal retaliation
Thomas B. Scheffer, National Law Journal
October 27, 2003. In hindsight, it would have been a lot cheaper if Pharmedica Communications LLC in Killingworth, Conn., had just let Rene Palma work half-days for two weeks, especially now that U.S. Magistrate Holly B. Fitzsimmons in Bridgeport has doubled a $140,000 jury verdict against the company for firing Palma after she explored her rights under the Family Medical Leave Act (FMLA).
Following gall bladder surgery in 1999, Palma’s surgeon recommended that she go to half-days for two weeks. The doctor didn’t suspect it would cost Palma her job. Palma had worked for eight years in the accounting department of 200-employee Pharmedica, a 14-year-old producer of videos for continuing medical education. Her supervisor, Sue Cipollone, referred the question of half-days to Pete Stefanski, a manager in the accounting department. He responded that half-days were no longer company policy.
The year before, CEO Lawrence Timmerman had changed the employee manual to eliminate halfdays. But Palma remembered hearing about the FMLA, which U.S. Senator Christopher Dodd, (D., Conn.) had authored, and called the U.S. Department of Labor to check it out. She learned that halfdays were, indeed, a possibility under the new law. But upon hearing that Palma had talked to the labor department, Cipollone and Stefanski acted less than pleased. After their own call to the Labor Department, Cipollone apologized profusely and allowed Palma to begin half-days. But those days were numbered.
According to detailed rulings by Fitzsimmons, Palma made a solid case on circumstantial evidence, supporting the jury’s finding that her firing was an illegal retaliation for challenging the CEO’s authority. From the whispery world of workplace politics, Palma testified she overheard Timmerman say to Stefanski, “Get rid of her.” Palma had received favorable job reviews and steady raises. Before the month was over, however, she was fired in what the company said was a “reorganization.” Palma’s lawyer was Jeffrey S. Bagnell, of the New Haven, Conn., employment law firm Garrison, Levin-Epstein, Chimes & Richardson. In cross-examination, Bagnell asked Timmerman, “You fired Rene Palma, didn’t you?” The CEO replied, “No, I did not.” Bagnell immediately grabbed Pharmedica’s answers from the underlying hearing before the state Commission on Human Rights and Opportunities. It listed Timmerman as the one who recommended Palma’s termination and made the final decision.
In closing arguments, Bagnell said Pharmedica had three years to explain why it fired Palma, “and it’s reorganization. A one-person reorganization.” He paused for effect. Pharmedica was represented by Glenn A. Duhl of Hartford’s Siegel, O’Connor, Zangari, O’Donnell & Beck. The firm had filed motions to set aside a 2002 jury verdict for $140,000 in lost pay on the ground that the evidence did not support it. With the parties’ agreement, Fitzsimmons ruled as a final order on Sept. 30 on defense and plaintiff’s post-trial motions. Her orders are not a recommendation that requires approval by a U.S. district judge.
In her ruling, Fitzsimmons quoted testimony of one Pharmedica employee recounting that Cipollone said Palma “should not have complained and should not have questioned Larry [Timmerman], because you just don’t question Larry.” Fitzsimmons denied Pharmedica’s move to reverse the verdict, instead ruling in favor of Palma’s request for an additional $140,000 as liquidated damages, under the FMLA’s doubling provision for liquidated damages. Fitzsimmons also rejected Pharmedica’s contention that it made a good-faith mistake and simply misunderstood the FMLA.
Palma v. Pharmedica Communications LLC, No. 3:00CV1128 [HBF]
Internet Executive Wins $500,000 in State FMLA Case
Diana Digges, Lawyers Weekly USA
November 11, 2002. A highly educated Internet executive has won one of the largest family leave act awards in the country—and she could double her award next month.
The plaintiff prevailed before a Connecticut hearing officer on a state FMLA claim. If the award survives review by the state labor commissioner in December, a U.S. District Court judge will then hear the plaintiff’s federal FMLA claim.
The case centers on Connecticut marketer Jane Smith, an employee of Cendant Corp., which provides global business, travel and real estate services. Smith alleged that Cendant failed to reinstate her to her original position or an equivalent one after she sought to return to work following FMLA leave for the birth of her baby.
A Connecticut hearing officer agreed with her. After a six-day administrative trial, on Sept. 18, the officer found in favor of the Princeton- and Stanford-educated Smith, awarding her $496,344 in damages, excluding attorney fees.
“[Ms. Smith] is about as accomplished an employee as there is, and I think the decision shows that FMLA has to be taken very seriously,” said Jeffrey S. Bagnell, of New Haven, Conn., who represented Smith.
However, the parties’ attorneys must still make oral arguments in December before the state labor commissioner, who can modify, reverse or affirm the decision. If it is affirmed, Smith will then petition for double damages in federal court. The highest FMLA award to date has been approximately $800,000, according to Bagnell.
Smith initially filed both federal and state FMLA claims. A federal judge ordered that administrative remedies on the state claim be exhausted first.
Smith began working for CUC International, Cendant’s predecessor, in 1989. She handled high-level sales and marketing assignments for the company in the U.S. and abroad. When she took leave for the birth of her child, Smith was head of a business unit within Cendant known as “Sidewalk,” which creates Internet guides for cultural events, food and entertainment in major cities around the world.
As vice president and general manager of the unit, Smith was responsible for a $30 million annual budget and some 300 employees. She was earning an annual salary of $136,038 at the time of her leave.
Sidewalk was not doing as well as expected, in part because of friction between Smith and her counterpart at Microsoft, a venture partner in the project. Microsoft held an option to buy
Sidewalk, and Smith herself had recommended selling the project. A transition sale was underway when she left.
‘Availability’ of Job
One of the key issues in the case was whether Smith’s job was eliminated in the course of the company restructuring that resulted from the sale. Under Connecticut law, an employer must offer an employee his or her old job back—if it is available.
“That’s not the case [under] federal law,” said Bagnell. “The employer has the option of returning the employee to an equivalent position, even if the original position is still there.”
Cendant claimed that Smith’s original post was gone. Although Smith had trained someone to handle her duties while she was out on leave, the company argued that that person, Jonathan Yee, was really performing a new job, and therefore “availability” was not an issue.
“By the time Ms. Smith was set to return from her leave, the Sidewalk unit consisted of only 30 employees. This was not the same job,” said William J. Anthony, counsel for Cendant.
But Bagnell and co-counsel Heidi Lane argued otherwise. A document they obtained from Microsoft supported their case, as did testimony from the employee Smith had trained—and from a former vice president.
“The purchase and sale agreement with Microsoft turned out to be a very important piece of evidence because it specifically stated that during the transition period Cendant was to provide ‘substantially similar’ services to those which it had provided before the agreement,” said Bagnell. “We thought that was pretty compelling evidence that her job was still there and that it was available. The company had an absolute obligation to [reinstate] Ms. Smith.”
The hearing officer agreed. She also pointed to the testimony of Jonathan Yee, Smith’s replacement, who stated that “his position continued to exist after Sidewalk’s sale … that his title did not change, and that his job duties were the same as they were prior to the sale.”
Former vice president Vere Spandow, who was involved in negotiating the transition agreement, also testified that Smith ‘s position was still available. The hearing officer found Spandow’s testimony, and Smith’s, to be “credible and worthy of great weight,” in contrast to that of Smith’s counterpart at Microsoft. His remarks, which alleged that Smith was incompetent, she characterized as “unpersuasive and self-serving … not supported by the record.”
Those credibility determinations will be challenged at the December hearing before the state labor commissioner, said defense attorney Anthony.
No Comparable or Equivalent Positions
Under Connecticut law, if the former position is no longer available, the employer must offer a comparable or equivalent one. The company claimed to have offered Smith four positions.
But the hearing officer determined that three out of the four jobs “did not actually exist, according to the senior vice presidents.” The fourth position was not equivalent in status, authority or responsibility level.
A significant portion of Smith’s award stemmed from the stock options and bonuses she would have garnered during the transition sale to Microsoft. Those bonuses instead went to Yee.
“One of the things that was unique about this case was the transition period, and the financial implications of that,” said Bagnell. “If there had been a sale [of Sidewalk] and ownership had been transferred immediately to Microsoft, there could have been a defense that [Smith’s] job had changed. But it was a gradual, 10-month transition period.”
To prove damages, Bagnell hired an expert economist, who prepared a written report on Smith ‘s losses, which, he said, “got complicated because of the timing of when the stock options would vest and when she could exercise them.”
Damages were set at $496,344, which represents what Smith would have received had she continued to work for Cendant through the transition, bonuses, severance pay, lost stock option opportunities and interest dating back to Oct. 15, 2001, which marked approximately the midpoint of the hearings.
Plaintiff’s attorneys: Jeffrey S. Bagnell and Joseph Garrison of Garrison, Levin-Epstein, Chimes & Richardson, in New Haven, Conn.; and Heidi Lane of the Connecticut Department of Labor.
Stamford Exec Wins Record FMLA Award
Thomas B. Scheffer, law.com
September 27, 2002. An Internet executive for Stamford-based Cendant Corp. won the richest Family Medical Leave Act (FMLA) award in state history, and possibly the nation, in an administrative ruling issued Sept. 18. Jane Smith, a Princeton and Stanford-trained marketer, was earning $136,038 on Jan.25, 1999, the day her baby was born and her family leave began. She’d begun working for CUC International, a Cendant predecessor, in 1989, the year she earned an MBA from Stanford, and held a number of high-level marketing jobs for the company in the U.S. and England, supervising ambitious sales operations.
The project she was working on at the time her medical leave began was an Internet service called Sidewalk.com, which creates city-specific guides to food, entertainment and cultural events. In a 1998 deal with Cendant, Microsoft Corp. took an option to buy Sidewalk, while budgeting some $30 million a year for the project, and expecting $55 to $60 million in annual revenues.
No Equivalent Position
The money wasn’t flowing in, in part due to friction between Cendant employees and Microsoft, according to the detailed findings of Lee Ellen Terry, an administrative hearing officer for the state Department of Labor who ruled in Smith’s favor.
Smith’s Cendant boss described Smith’s Microsoft counterpart in the joint venture, Peter Atkins, as “a miserable and difficult individual.” His opposition to bonuses for the sales force caused low morale in the 300-employee project. Terry found it undermined Smith’s role by increasing Cendant’s duties without any increase in income.
Smith favored a sale of the troubled project to Microsoft under the venture agreement, and a restructuring was underway when she took her family leave under the state act.
In March, Smith was told her Sidewalk job had been eliminated in the restructuring—she could take a lesser position or explore a severance package. She was initially offered, but was never paid, two weeks’ pay for every year of service. Instead, she explored some of the four vice president jobs purportedly offered in telemarketing and small business travel, but was not offered a position equivalent to her old job.
Smith’s stock options and bonuses would become less valuable if she agreed to resign, as Cendant argued she had in July 1999. The bonuses and stock options later became large components of Smith’s award under Terry’s proposed decision, which still can be rejected, modified or approved by the state labor commissioner.
In addition, because Smith has a parallel case pending in federal court, she is planning to petition for double damages there, under the 1993 federal FMLA.
Strict Liability Standard
Smith’s case was handled by Jeffrey S. Bagnell, of New Haven’s Garrison, Levin-Epstein, Chimes & Richardson, as well as state Labor Department attorney Heidi Lane, in the state agency’s wage and workplace standards division. William Anthony, of Jackson, Lewis, Schnitzler & Krupman, and Kirsten Hotchkiss, vice president of Cendant’s legal department, represented the company.
Initially, Cendant argued in a footnote that Smith took 17 weeks leave instead of the allowed 16, but the hearing officer concluded she was including other paid leave, and that her family leave claim was viable.
Jonathan Yee was selected to perform Perkins’ work while she was on maternity leave, and was assigned her job permanently in a Feb. 2, 1999 transition agreement issued just days after her departure.
Hearing officer Terry determined that Perkins was entitled to her old salary and stock options, plus the same bonuses extended to Yee. She found Atkins’ testimony that Perkins was allegedly incompetent to be “unpersuasive and self-serving,” whereas Perkins’ and her witness’ testimony was “credible and worthy of great weight,” Terry determined.
Indeed, the only negative comments about Perkins that Terry found significant was the notation in her final performance review that “she had an edge and could have been nicer” when attacked. She got a 7 to 9 percent raise at that point.
The state FMLA, Terry wrote, imposes a strict liability standard on an employer who interferes with an employee’s right to reinstatement.
Although Cendant contended it told her of four other positions, Terry determined only one was actually offered, and Smith was justified in refusing it because “it was not substantially equivalent in terms of status and responsibility.”
With the aid of forensic accountant Sheldon Wishnick, of Newington, Smith established damages of $496,344, excluding attorney fees, and is entitled to interest dating back to Oct. 15, 2001, Terry found.
In its post-hearing brief, Cendant said the ruling attempts to ignore business events within Cendant that affected everyone and had nothing to do with Smith’s leave of absence. It criticized her competence and credibility, contending she was obligated to take one of the four jobs to mitigate damages.
Bagnell, Smith’s lawyer, said the standard of review is high, and requires a finding that the hearing officer’s decision was arbitrary and amounted to an abuse of discretion.
Attorney Bagnell in the News, April 2019