Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for 2012

Reluctant to recant rape accusation

Brian Banks served more than five years in prison after an old friend “falsely accused him of attacking her on their high school campus”:

In a strange turn of events, the woman, Wanetta Gibson, friended him on Facebook when he got out of prison.

In an initial meeting with him, she said she had lied; there had been no kidnap and no rape and she offered to help him clear his record, court records state.

But she refused to repeat the story to prosecutors because she feared she would have to return a $1.5 million payment from a civil suit brought by her mother against Long Beach schools….

It was uncertain Thursday whether Gibson will have to return the money.

[AP via Balko, Volokh; & welcome Reddit readers] Update 2014: School district obtains default judgment against Gibson; contrary to reports at the time, the amount paid in the original settlement is now reported at $750,000 rather than $1.5 million.

Meanwhile, on the opposite coast, high-profile Brooklyn sex crimes prosecutor Lauren Hersh has resigned following a furor over a sex trafficking case in which “prosecutors had held on to documents showing the victim recanted rape allegations one day after making them.” [NY Post, more] P.S. Daniel Fisher reminds us of Hersh’s “starring role in New York Times columnist Nicholas Kristof’s expose of Backpage, the Village Voice’s online personals section.”

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Free speech roundup

  • Boilermaker union president resorts to litigation against satirical site [Levy; another case on demands for disclosure of anonymous commenters] More on ghastly NY bill to strip protection from anonymous online speech [David Kravets/Wired, Daily Caller, my take]
  • Defending people like Aaron Worthing and Patterico shouldn’t be a left-right matter [Popehat, Tapscott/Examiner, earlier] Maryland and indeed all states need stronger statutory protection against vexatious litigants [Ace of Spades] And as a longtime Charles Schwab customer I was at first distressed to find the Schwab Charitable Fund on this list, but since the fund is billed as “donor-advised” I take it some Schwab customer rather than the company itself got to choose the beneficiary;
  • “Indonesia Prosecution for Posting ‘God Doesn’t Exist’ on Facebook” [Volokh] Curious to see an argument for Euro-style hate speech laws appearing on the Liberty and Law site [David Conway]
  • “Cyberbullying and Bullying Used As Pretexts for Censorship” [Bader]
  • “EEOC: Wearing Confederate Flag T-Shirts May Be ‘Hostile Work Environment Harassment'” [Volokh, more, Bader]
  • Video on new freedom of assembly book [FedSoc]
  • Maybe Citizens United turned out so badly for the speech-suppressive side because a government lawyer was imprudently candid before the Court [Jacob Sullum, earlier on Toobin New Yorker piece]

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NLRB ALJ: restaurant can’t fire workers over false posters claiming its food is unsafe

Following an unsuccessful effort to unionize franchise restaurants of the Jimmy John’s chain around the Minneapolis area, run by a firm named MikLin, the Industrial Workers of the World union (“Wobblies”) began a second campaign, as John Hauge explains at Minnesota Employer:

Part of the campaign involved putting up posters that called into question the healthfulness of sandwiches prepared in MikLin’s shops. The posters erroneously stated that employees were not allowed to call in sick, and implied that persons eating the sandwiches risked illness by doing so. Several employees supporting the campaign met with MikLin to demand that it provide sick pay to employees, and threatened to put the posters up all over the Twin Cities. The union also issued a press release entitled “Jimmy John’s Workers Blow the Whistle on Unhealthy Working Conditions.”

In a 1953 case called NLRB v. Electrical Workers Local 1229 (Jefferson Standard), the U.S. Supreme Court ruled that although federal labor law in general forbids employers to dismiss workers for union advocacy, it makes an exception for expressions of “disloyalty”, as in the case of “a sharp, public, disparaging attack upon the quality of the company’s product and its business policies, in a manner reasonably calculated to harm the company’s reputation and reduce its income.” In those cases, the Court ruled, an employer was still free to dismiss the disloyal workers, union activists or no.

You might think that would fit the facts of the Jimmy John’s case quite well, especially given the falsity of the assertion that the restaurant workers couldn’t take sick leave. But an administrative law judge at the NLRB has disagreed, ordering back pay and reinstatement for the dismissed union workers and dismissing the falsity as mere “hyperbole.”

Hauge at Minnesota Employer calls the decision “creative” and warns readers that (assuming the decision is not overturned at the board level) the NLRB may be increasingly inclined to extend protection against “retaliation” to a wider swath of “untrue, malicious and/or disparaging” talk during union campaigns. At least when it comes from the pro-union side.

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Judge: flashing headlights to warn of speed trap is protected speech

Florida cops have made a practice of ticketing drivers who warn others about speed traps by flashing their lights, despite uncertainty as to whether state law actually does prohibit such flashing. Now a judge in Sanford, Fla. has ruled that Ryan Kintner of Lake Mary not only was within his rights under state law when he flashed his headlights, but was engaging in speech protected by the First Amendment. [More, Jalopnik, Volokh; Orlando Sentinel] (& welcome Above the Law, Reason, Cato at Liberty, Amy Alkon readers)

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More on the John Edwards prosecution

Must-read Mark Steyn: “Edwards now faces 30 years in jail, for the crime of getting a couple of pals to pay for his baby’s diapers. For purposes of comparison, Anders Breivik murdered 77 people and is looking at 21 years in jail, the maximum sentence permitted under Norwegian law.” Contra: Hans von Spakovsky argues that the prosecutors’ argument is not such a stretch. And Beldar predicts the issue on which the jury’s verdict may turn. Earlier here, here, etc.

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Labor and employment law roundup

  • Gov. Walker’s public sector labor reforms popular with Wisconsin voters, and have saved taxpayers a fortune [Morrissey, Fund, Marquette poll (public favors new law by 50-43 margin] What would FDR say? [Dalmia, The Daily]
  • “Why you should stop attending diversity training” [Suzanne Lucas, CBS MarketWatch, following up on our earlier post]
  • The gang that couldn’t regulate straight: “Court rebuffs Labor Department on sales rep overtime” [Dan Fisher, Forbes] Lack of quorum trips up NLRB on “quickie”/ambush elections scheme [Workplace Prof]
  • Not all claimed “gun rights” are authentic, some come at expense of the vital principle of at-will employment [Bainbridge]
  • Brace yourself, legal academics at work on a Restatement of Employment Law [Michael Fox]
  • “Why Delaware’s Proposed Workplace Privacy Act Is All Wrong” [Molly DiBianca]
  • USA Today on lawyers’ role in growth of Social Security disability rolls [Ira Stoll]

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“The only times I saw her (Allred) was when the media was there.”

Imagine that: a discontented Gloria Allred client, in this case Debrahlee Lorenzana, who filed a pioneering “fired because I looked too hot” suit against Citicorp in 2010. (Allred is now representing a second such client, against a Manhattan lingerie shop.) “Allred told the Daily News she and her team ‘put in hundreds of hours fighting for her (Lorenzana’s) rights.'” [Fox News]

And from comments: Ted Frank defends Gloria Allred.

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