Epstein Becker Green Successfully Represents Cable News Network in Discrimination Lawsuit
U.S. District Judge Richard Leon granted an Epstein Becker Green client, Fox News Network, summary judgment on August 25, 2011, in a lawsuit alleging age discrimination, gender discrimination and retaliation under Title VII brought by the U.S. Equal Employment Opportunity Commission on behalf of Fox News reporter Catherine Herridge. U.S. District Judge Richard Leon found that the commission failed to make sufficient claims in the complaint of retaliation or show that Herridge suffered any material harm.
"Indeed, it is hard to imagine how a reasonable employee would be dissuaded from engaging in protected activity if that employee were still able to secure not only a multi-year employment contract, but also a multi-year raise!" Leon wrote in the opinion.
Fox News Network was represented by Epstein Becker Green attorneys Frank Morris, Jr.; Barry Asen; and Ronald M. Green.
Epstein Becker Green Persuades Federal Court in California to Deny Certification of Wage and Hour Claims Against Technology Client
Epstein Becker Green has achieved a major victory in a wage and hour collective/class action in a federal court in California. In this case, the plaintiffs filed a collective and class action alleging violations of the Fair Labor Standards Act ("FLSA") and the California Labor Code against one of our clients, a global technology company. The named plaintiffs are former information technology employees who alleged that their job duties consisted primarily of providing computer support, trouble shooting, testing related to repairs and problem-solving, and technical services. The plaintiffs claimed that they were improperly classified as exempt, worked in excess of 40 hours per week without overtime pay, and were not provided with required meal and rest breaks. Previously, the judge had conditionally certified an FLSA class. Ruling on the parties' respective motions in September 2013, the court denied the plaintiffs' motion to certify a Rule 23 class action under California law, and it granted our client's motion to decertify the conditionally certified FLSA class.
Interestingly, the law firm that represented the plaintiffs in this case represented a similar group of employees in a prior class action brought against a prior owner, and settled that case for approximately $16 million. The Epstein Becker Green team, which was led by Michael S. Kun and included Aaron F. Olsen and Lisa M. Watanabe, crafted and executed a creative strategy that led to a very different result for our client.
Epstein Becker Green Secures Favorable Settlement in Class Action Case
Epstein Becker Green recently concluded a favorable class action settlement for a leading in-flight Internet service provider.
In 2014, the client was sued in a putative class action in the Eastern District of New York. The claims against the client centered on its monthly subscription, pursuant to which its customers are afforded access to the Internet on all flights equipped with the client’s devices and agree to have their credit cards charged each month until they take steps to cancel the service. The complaint alleged that the client did not sufficiently apprise customers of the recurring nature of the charge, and sought restitution, requesting nearly $24 million in charges on behalf of the class.
After the judge denied the client’s motion for stay or dismissal in favor of arbitration, Epstein Becker Green appealed the case to the U.S. Court of Appeals for the Second Circuit. In response, the judge set a hearing for class certification two months hence. In the face of both the likely success of the appeal and extensive discovery demands that we served on the class certification issue, plaintiffs’ counsel requested that the matter be stayed so that the parties could conduct a formal mediation. After two days of meditation, a settlement was brokered in which the client offered promotional codes to affected class members to settle the action. Because so-called “coupon settlements” warrant higher scrutiny under the Class Action Fairness Act and current case law, the court required three hearings for approval, including the submission of expert reports on the particular sophistication of the client’s customers. Final approval was granted in April 2016, the time for appeal has expired, and the settlement is now final.
The Epstein Becker Green team included Newark attorneys Anthony J. Laura, Robert M. Travisano, and Yael Spiewak and New York attorneys Scarlett L. Freeman and Matthew Savage Aibel.
Epstein Becker Green Successfully Advises on Regulatory Issues for Mental Health Platform
Epstein Becker Green has successfully advised Ginger.io, Inc., a big data/behavioral analytics health care company based in San Francisco, on a number of regulatory issues concerning, among other things, telehealth, corporate practice of medicine, reimbursement, the Food and Drug Administration (FDA), compliance, and fraud and abuse.
Named a “2015 Technology Pioneer” by the World Economic Forum, Ginger.io is an industry leader whose mobile app analyzes passive data and analytics to identify patterns in users’ behavior and mental state that may impact their health and well-being. Providers can use the Ginger.io platform to reach out when patients need support.
Ginger.io also provides a virtual care network of mental health providers to enable users to receive virtual care therapy through the mobile app. Our team counseled Ginger.io as the company prepared to launch that virtual care network. Ginger.io has collaborations and partnerships with a number of leading hospitals, academic medical centers, and insurers.
The Epstein Becker Green team included Kevin J. Ryan, Jason E. Christ, John W. Eriksen, Helaine I. Fingold, Paul A. Gomez, Daniel G. Gottlieb, Zachary C. Jackson, Amy F. Lerman, Jennifer L. Nutter, Kim Tyrrell-Knott, and Patricia M. Wagner.
Defeating a Bid Protest in California
Competition for federal, state, and local government contracts continues to be fierce. If your company finds itself in competition for, and then awarded, a lucrative government contract, there’s a strong chance that your company will be pulled into the bid protest process, helping the government agency defend the contract award.
Epstein Becker Green has substantial experience assisting clients with bid protests. For example, in July 2018, Epstein Becker Green prevailed by defeating a bid protest involving a $65 million California Department of Technology (CDT) contract awarded to a longtime client of the firm. (The contract involves the administration of a state program offering discounted telecommunications services to eligible California residents.) Following the CDT’s contract award to Epstein Becker Green’s client, the disappointed bidder—the contract incumbent—filed a bid protest claiming that the CDT violated the solicitation procedure.
After reviewing the case facts and Epstein Becker Green’s protest brief as well as the State’s brief, the Administrative Law Judge for the California Office of Administrative Hearings sided with Epstein Becker Green’s client and with the State of California, concluding that the disappointed bidder failed to prove any solicitation procedure violation.
Securing an Appellate Court Victory in an ADA Case of First Impression
Epstein Becker Green recently achieved a significant victory on behalf of a leading global media organization in connection with an appeal involving a question of first impression for the U.S. Court of Appeals for the Second Circuit. Among other claims, the former employee alleged that our client violated the Americans with Disabilities Act (“ADA”) in failing to provide a reasonable accommodation for his migraine headaches, which, according to his treating physician, were triggered by stress resulting from what the employee perceived as unjustified critical reviews of his performance. Specifically, the former employee sought a transfer, indicating that he could perform the same job, or a similar one, if supervised by different managers. He was not transferred, and, ultimately, his employment was terminated based on a consistent record of subpar performance. A district court dismissed the former employee’s ADA (and other federal) claims, opining in pertinent part that the former employee was not “disabled” within the meaning of the ADA, largely based on his own admission that he could “do the exact same job he had been doing” as long as he was under new supervisors.
On appeal, the former employee contended that the district court impermissibly relied on authority that pre-dated the ADA Amendments Act of 2008 (“ADAAA”) in holding that the former’s employee’s claimed inability to perform a single job, for particular supervisors, did not meet the standard for disability. On behalf of its client, Epstein Becker Green argued that nothing in the ADAAA suggests that the courts should “abandon the common-sense principle that one’s claimed inability to perform only his specific job (particularly because of stress arising from the particulars of that job) does not amount to a substantial limitation on the life activity of working.” Indeed, although this was an issue of first impression for the Second Circuit, other federal circuit courts of appeal have concluded that, even post-ADAAA, one’s claimed inability to perform a single job does not rise to the level of disability. In a per curiam opinion, the Second Circuit agreed, invoking the language from Epstein Becker Green’s briefing: “[N]othing in the ADAAA’s text, or its legislative history for that matter, suggests that Congress intended to modify, let alone abandon altogether,” the “longstanding, common‐sense principle of law [that] recognizes that employees who are precluded only from doing their specific job, or from working under a specific supervisor, do not have a ‘disability.’”
The Second Circuit’s decision in this case is an important win not only for our client but for employers in general, insofar as it clarifies the outer limits of the ADAAA and discourages “failure to accommodate” claims based on symptoms arising from conditions unique to an employee’s particular job circumstances, including his or her relationships with supervisors.
The Epstein Becker Green team included David W. Garland and Edward M. Yennock.
Successfully Defending Clients Wrongfully Accused of Sexual Harassment and Retaliation
Epstein Becker Green recently achieved a significant victory on behalf of two clients—a communications company and its corporate parent—in a matter that was filed in a federal court in New York by a former employee of the communications agency. The plaintiff alleged that she was sexually assaulted at a vendor-sponsored after-work event by an employee of the one of the communication company’s clients. The plaintiff asserted various claims against her employer and its parent company, her employer’s client, and the individual that she alleged harassed her, including claims for sexual harassment and retaliation under federal, state, and city laws. Epstein Becker Green moved for summary judgment on all claims, and the court granted the motion in its entirety.
The court dismissed the sexual harassment claim, finding that despite the manager’s failure to immediately report the complaint, the communications company took appropriate and timely remedial action in response to the plaintiff’s harassment complaint. The court repeatedly focused on the plaintiff’s deposition testimony, where she said she did not think that HR could have done anything better or faster in response to her complaint. Additionally, the court dismissed the plaintiff’s retaliation claim, finding no adverse action and no causal connection between her protected activity and the alleged adverse conduct.
The Epstein Becker Green team included Ronald M. Green, Lauren Malanga Casey, and Maxine Adams.