Labor & Employment Law Daily Sanctions appropriate for fired marketing director’s bad faith media campaign after failed mediation
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Wednesday, October 16, 2019

Sanctions appropriate for fired marketing director’s bad faith media campaign after failed mediation

By Kathleen Kapusta, J.D.

The timing of the marketing director’s media interviews and distribution of those interviews and articles via her Facebook page demonstrated her intention to influence this action in her favor, the court stated.

Citing its inherent power to sanction litigants and their attorneys to ensure that parties receive a fair trial, a federal court in Georgia granted in part an employer’s motion for sanctions against a former employee who, in an effort to apply public pressure on the employer and influence the public’s perception regarding the merits of her lawsuit, engaged in inappropriate extrajudicial conduct by giving interviews and publicizing them on her Facebook page. In addition to requiring the employee to pay fees and expenses associated with the preparation and filing of the employer’s motion, the court found a limited instruction to the parties to refrain from providing extrajudicial statements to the press for the purposes of influencing the public perception of this case and the subsequent trial was necessary at this time. Finally, it denied the employee’s request that it sanction her former employer for pursuing its motion for sanctions (Mai v. Nine Line Apparel, Inc. dba Nine Line, October 10, 2019, Moore, W., Jr.).

Suing for sex and disability discrimination under Title VII and the ADA, the former marketing director for Nine Line Apparel alleged that she worked for male bosses who created a masculine, misogynistic, chaotic, and conflicting environment. The former veteran, who claimed she suffered from PTSD, also alleged that the employer refused to grant her requests for accommodation. She claimed that while attending an event she organized, she was told she could not conduct interviews because she wasn’t a guy. She was then purportedly verbally assaulted and later terminated.

Media campaign. In moving for sanctions, the employer alleged that after a failed mediation in June 2019, the employee began making public comments regarding the litigation in an attempt to damage its reputation and influence potential jurors. Specifically, in July, after a Tennessee television station published an article on its website describing the lawsuit and reciting allegations from the employee’s complaint, she shared the article on her personal Facebook page.

Pay me or else. The employer then filed a motion to seal in early August, in which it sought an order permitting it to file under seal a motion to enjoin extrajudicial statements. While that motion was pending, a Savannah television station aired an interview with the employee in which she again discussed the lawsuit and again published the interview and an accompanying article on her Facebook page. The timing of the media attention, the employer argued, was not accidental and was a “pay me or else” strategy employed by the employee after the failed mediation, which, the employer asserted, should be sanctioned as she was seeking to taint a potential jury pool.

Inherent power. Opposing the motion, the employee first argued that Local Rule 11.2, which governs the release of information in civil cases, applies only to attorneys and not parties. Noting that the employer cited to the rule only to demonstrate that “the Court already recognizes that media can interfere with a fair trial,” the court here explained that Local Rule 11.1 is one method of attempting to ensure a fair trial. However, said the court, it can also use its inherent power to sanction litigants and their attorneys to ensure the same fairness.

Bad faith. And here, said the court, not only did the employee engage in inappropriate extrajudicial conduct by giving and publicizing the interviews and articles on her Facebook page, it was done in bad faith. A review of the articles and her Facebook page, observed the court, showed that she did not approach the media until after the failed mediation. For instance, in her Facebook post sharing the news article from the Tennessee station, she responded to Facebook comments about why she didn’t discuss the case earlier by stating that “I kept it quiet to protect the legal process and keep it unbiased.” But in response to the motion for sanctions, she offered no explanation of why she was concerned about protecting the legal process and preventing biases earlier in the case, but then after the failed mediation, no longer had the same concerns.

Marketing and PR guru. As further support for its finding of bad faith, the court pointed to her acknowledgement that she was closely monitoring the reactions that her interview was garnering because she was a “marketing and PR guru.” This, together with the timing of the media attention, led the court to conclude that she gave the interview and shared the article and interview on her Facebook page in an effort to apply public pressure on the employer and influence the public’s perception about the merits of her case.

Sanctions. Although the employer sought dismissal as a sanction, the court instead found that the employee should pay the employer’s reasonable fees and expenses associated with the preparation and filing of its motion. In addition, the court found it appropriate to proscribe extrajudicial statements by the parties or counsel that might prejudice these proceedings. However, the court observed, there is a circuit split regarding the standard to apply to restrict out-of-court statements of participants and the Eleventh Circuit has not weighed in on this.

Substantial likelihood. The Fifth Circuit, however, has found that “[i]f the district court determines that there is a ‘substantial likelihood’ (or perhaps even merely a ‘reasonable likelihood,’ a matter we do not reach) that extrajudicial commentary by trial participants will undermine a fair trial, then the court may impose a restrictive order on the participants, as long as the order is also narrowly tailored and the least restrictive means available.”

Again explaining again that the pre-trial publicity and media attention was an attempt by the employee to exert her marketing and “PR” knowledge to influence the potential jury pool and exert settlement pressure on her former employer, and that the employee also argued that the employer had a “marketing practice of seizing upon any sensationalist new story to manipulate media cover age for their business,” the court noted that both parties appeared concerned about the other exerting media coverage to influence the trial of this case. Because pre-trial publicity would present a substantial likelihood of prejudicing a fair trial, the court determined that as this case progresses toward trial, a limited instruction to refrain from providing extrajudicial statements to the press for the purposes of influencing public perception was necessary at this time. Such an order, said the court, is the least restrictive means to promote a fair trial and curtail extensive pre-trial publicity.

Accordingly, the court ordered that “No party or counsel for the parties shall give or authorize any extrajudicial statements or interviews relating to this case, which a reasonable person would expect to be disseminated by means of public communication if there is a substantial likelihood that such dissemination will interfere with a fair trial, except that the lawyer or party may quote from or refer without comment to public records of the Court in the case.”

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