EEOC withholds records in arbitration matters; corporate frustration with secret justice is ironic

Janet Dhillon

According to employers' lawyers, the Equal Employment Opportunity Commission (EEOC) is denying public access to investigation files in matters committed to arbitration, even while conceding that files in litigation matters must be disclosed under the federal Freedom of Information Act (FOIA).

Yesterday the Labor and Employment Law Practice Group of the Federalist Society held a teleforum with the provocative title, "Is the EEOC misusing the Freedom of Information Act to penalize employers that adopt mandatory employment arbitration programs?" Here is the description:

The EEOC is denying employers' FOIA requests for the EEOC's charge investigation files when resulting employment claims are proceeding in arbitration rather than litigation. Our panel will discuss whether the EEOC's justifications for denying such FOIA requests are consistent with FOIA and other governing federal statutes. We will consider a number of related issues. What is the EEOC's basis for treating litigation and arbitration differently in responding to employers' FOIA requests?  How long has the EEOC been making this distinction between litigation and arbitration? In light of the increasing prevalence of employment arbitration, should employers challenge the EEOC's FOIA practices and, if so, how?

Speakers included EEOC Commissioner Janet Dhillon and Jones Day attorney Eric Dreiband.

I regret, I didn't make it. My guess is that the EEOC is denying access on basis of the various exemptions for law enforcement investigation records, besides deliberative process. Without having heard either side of the debate, my inclination, probably like Dreiband's, is to doubt seriously the viability of any asserted distinction between arbitration and litigation.

What I find compelling about the case, though, is less the effort at FOIA exemption and more the irony of corporations being stymied on transparency and accountability when mandatory arbitration is a choice of their own design.

I wrote just yesterday about the problem of arbitration superseding litigation as our principal means of dispute resolution. And the fact that arbitration happens in secrecy is a big part of that problem. In litigation, the tort system achieves the important objectives of norm-setting and deterrence, besides the anti-vigilantism I mentioned yesterday. Norm-setting and deterrence, in turn, avert tortious conduct by the same respondent and other actors in the future. Secret justice undermines these objectives. Even the same bad actor can persist in its misconduct without risk of punitive consequences.

I don't approve of selective opacity by EEOC. But there's a scrumptious hypocrisy in companies wanting transparency and accountability in public enforcement mechanisms while they jealously secret their own dirty laundry against the public functions of the courts.

Lisbon graffiti writer seeks internet access

I passed this graffiti in the Entrecampos area of Lisbon while attending the annual meeting of the Law and Society Association earlier this month (photo by RJ Peltz-Steele CC BY-NC-SA 4.0).

The text struck me as a curious coupling of "free expression" to excess and an unrealized "right to receive," or right of access to information and the internet.

It looks like someone tried to obliterate the middle section of the text, but as best as I can read it, it says, in whole: "I am a local artist in need of internet connection without any restriction. If you have a network that works and you [are] up for sharing, please text me the [user?] name, password and your approximate address to 969 158 614. In exchange, you(r) might get a poem."

I might have been better persuaded if the writer had asked in rhyme.

Grubhub drivers signed away right to sue, court rules

Haydn Blackey via Flickr CC BY-SA 2.0

Grubhub drivers signed away their right to sue on unfair wage claims, the Massachusetts Supreme Judicial Court ruled today.

Plaintiff Grubhub drivers complained that the company is stiffing them on minimum wages and tips under state law and, worse, retaliating against drivers who complain.

I have no knowledge of the validity of these claims, but I worry a lot about the exploitation of gig workers in our economy. This exploitation is a big slice of the broader problem of employers' over-classification of personnel as independent contractors to avoid having to provide fair wages and benefits. Sometimes employers cross the legal line and sometimes they don't; regardless, the effect of even the lawful leeway contributes to our glut of working people who cannot make ends meet, put us all at risk with insufficient insurance for healthcare and accidents, and spend so much on necessities as to have paralyzed American socioeconomic mobility. Our woefully outdated measures of employment fail to reflect this problem, which is why media pundits and Washington pointy-heads scrunch their faces in confusion over how we can have favorable job numbers and an "it's the economy, stupid" political crisis happening at the same time.

Collateral to labor exploitation, we have long had the problem of our court system being subverted by the supposed freedom to contract. At this point, we all know without even having to read the fine print that every terms-and-condition box we check, just like every product we liberate from shrinkwrap, binds us to arbitrate any disgruntlement and frees our adversaries from ever having to answer to us in the courts, which were designed for that very purpose. Many of us know furthermore that the terms of arbitration profoundly favor the respondent companies, both substantively, evidenced empirically by companies' overwhelming win rates, and, often, procedurally, by way of inconvenient venues, arcane procedures in contrast with small claims courts, and the burdens of transaction costs.  I've cited the definitive books on this subject by Nancy Kim and Margaret Jane Radin so many times, that, frankly, I just don't have the energy today to look up their URLs again.  Let's instead invoke the tireless Ralph Nader and his persistent admonition that we have undermined the Seventh Amendment, to which point I add humbly that anti-vigilantism is an important function of our civil dispute resolution system, and maybe we ought remember that in a society in which the least mentally stable among us apparently have ready access to firearms.

So it's the confluence of these two socio-legal problems that interests me in the present case, more than the merits. On the merits, the Grubhub complainants tried to work around their 2017 clickwrap agreement to arbitrate by characterizing themselves as a kind of interstate transportation worker that is exempt from the Federal Arbitration Act. But Grubhub drivers are not long-haul truckers. A for creativity, F for achievement. The court held that the drivers indeed signed away their right to sue.

F is likely to be the final disposition of the complaints in arbitration after remand, too.

You can read more in Archer v. Grubhub, Inc., No. SJC-13228 (July 27, 2022). Justice Dalila Argaez Wendlandt wrote the unanimous opinion (temporarily posted).  The case in Suffolk County Superior Court is no. 1984CV03277 (class action complaint filed Oct. 21, 2019).

The U.S. Chamber, dependable opponent of transparency and accountability, was among the amici on the prevailing side.  The Harvard Cyberlaw Clinic was among the amici for the workers. The office of Commonwealth Attorney General Maura Healey entered an appearance as amicus, but filed no brief. Healey's office sued Grubhub one year ago, alleging the company overcharged Massachusetts restaurants during the pandemic (complaint, press release). That case, no. 2184CV01719 in Suffolk County Superior Court, is pending currently on cross motions for summary judgment.

Publishers crush state effort to ensure that public libraries have reasonable access to e-books

Cartridge People CC BY 2.0 via Flickr

A Maryland law requiring the licensing of electronic books to public libraries on reasonable terms is preempted by federal copyright law, a federal court ruled in June.

A Maryland statute enacted in 2021 provided that e-book publishers "shall offer to license the electronic literary product to public libraries in the State on reasonable terms that would enable public libraries to provide library users with access to the electronic literary product."

The law meant to answer publishers who have been employing oppressive tactics to milk money from public libraries trying to meet patron demand for electronic books. I wrote some about this problem in April 2021.

Alas, the federal court ruled that federal copyright law occupies the field to the exclusion of Maryland legislators' worthy intentions. The court found it unnecessary, therefore, to consider publisher complainants' further claims, such as dormant Commerce Clause.

I'll add this to my list of lost causes in a corporate-captured Congress.

The case is Association of American Publishers, Inc. v. Frosh (D. Md. June 13, 2022), Judge Deborah L. Boardman presiding.

Chicago Transit Authority seeks to hire tort lawyers

The Chicago Transit Authority is looking for lawyers specifically to handle tort claims.

This job is unusually specific to tort work. Here is the position summary for "Senior Attorney," listing a salary of $95,544:

Under general supervision, performs a broad variety of legal duties in support of the Authority’s General Counsel. Works on the defense of personal injury lawsuits filed against the Authority, from minor to catastrophic injuries and subrogation and property damage defense and performs all litigation for assigned caseload.

And here is the position summary for "Associate Attorney," listing a salary of $83,372:

Under general supervision, functions as a junior level attorney responsible for litigating personal injury cases brought against the authority.  Works with senior attorneys on complex personal injury, subrogation, and property damage defense cases.

Both positions were posted July 22.

To channel cases into ordinary negligence or medmal, look to implications for medmal insurance, court says

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A Massachusetts court sometimes might have difficulty distinguishing between claims of ordinary negligence and claims of medical malpractice, only the latter of which must be filed first with a special tribunal. If a case implicates medmal insurance, it's more likely the latter, a court reasoned in May.

The Appeals Court had little difficulty, though, finding that a complaint over life-threatening allergic reaction to a drug administered in the emergency room sounds in medical malpractice. The plaintiff therefore erred by failing to file with the commonwealth medmal tribunal and post the necessary bond before proceeding in the Superior Court.

The court demarcated the boundary between ordinary negligence and medmal claims with reference to the legislative purpose in creating the tribunal: "to guarantee the continued availability of medical malpractice insurance." A court may be guided also by factors derived from case law: "(1) whether medical or professional judgment or competence was exercised, ...  (2) whether the claim is 'treatment-related,' even if not a traditional malpractice claim, ... and (3) whether 'the same set of facts supports both' the medical malpractice and allegedly non-medical claims...."

The instant plaintiff's "claims centered on her arriving at the emergency room suffering from an asthma attack, and the hospital's failure to provide a proper medication to her, which resulted in a severe allergic reaction. More specifically, the hospital was alleged to have deviated from the 'standard of care' by administering a medication containing lactose to [plaintiff,] who had a lactose allergy known to the hospital." The implication of medical judgment plainly positioned the case in medmal.

The case is Lane v. Winchester Hospital, No. 21-P-476 (Mass. App. Ct. May 17, 2022). Justice William J. Meade wrote the opinion of the unanimous panel.

Families retain common law rights over loved ones' remains when a church sells a graveyard, court holds

Photo by Bicanski via Pixnio

Principles of common law trust give families a say over the disposition of their loved ones' remains when a church closes and sells its burial ground, the Massachusetts Appeals Court held in May.

The chronic closure of churches and sale of their buildings has spun off a collateral issue of what happens to human remains and who gets to decide.

The 2015 closure of the Episcopal Church of the Holy Spirit of Wayland, Mass., generated such a problem. The diocese decided to close the church and agreed to sell the property to the Coptic Church.

The Coptic Church was not keen, though, to take over and maintain the churchyard burial grounds as they were. The Coptics were interested in developing the property, and they have a religious objection to cremation, which was the state of some of the deceased.

The Episcopal Church explored disinterment and relocation options with families of the deceased. The last burial there was in 2006. Not all families were willing to get on board; some wanted their loved ones to stay put. The Episcopal Church therefore endeavored to move the remains without consent, to see the sale to the Coptic Church go through, and litigation ensued.

The court reviewed the potentially applicable law of property and contract. Both parties made good arguments, and none persuaded the court dispositively. In essence, the church claimed conventional property ownership, and the families pointed to a contractual promise of "perpetual care."

The court instead decided to hang its hat on the amorphous but persuasive notion of common law trust. Some kind of right clearly persists in family over members over the disposition of loved ones' remains, the court reasoned, because we don't think twice in entertaining disputes between family members when there is a question about where a loved one should be laid to rest. Something more than mere property must be going on; the court quoted a New York court's "eloquent" reasoning in an 1844 case:

"When these graves shall have worn away; when they who now weep over them shall have found kindred resting places for themselves; when nothing shall remain to distinguish this spot from the common earth around, and it shall be wholly unknown as a grave-yard; it may be that some one who can establish a 'paper title,' will have a right to its possession; for it will then have lost its identity as a burial-ground, and with that, all right founded on the dedication must necessarily become extinct."

The instant case is hardly akin to that distant day, the court countered; rather, the complainants here are first-degree survivors. "For these reasons," the court concluded, "we now hold that in the absence of a governing statute, common law trust principles apply to the disinterment of human remains from a dedicated burial ground until the families of the deceased have abandoned the remains or the burial ground is no longer recognizable as such."

The court made short work of the Coptic Church's claim that its freedom of religious exercise would be violated by the presence of cremated remains. Essentially, the court reasoned, the bodies are already there. And the family's religious rights might as well be implicated were the court to countenance disinterment.

The court acknowledged that many questions would arise from this decision, for example, regarding the family's right to visit their loved ones' graves under new ownership. But those are questions for another day.

The unusual case is Church of the Holy Spirit of Wayland v. Heinrich, Nos. 21-P-7 & 21-P-8 (Mass. App. Ct. May 5, 2022). Justice James R. Milkey wrote the opinion of a unanimous panel.

N.J. limits mode-of-operation doctrine in classic slip-and-fall claim over grocery store grapes

Open Food Facts CC BY-SA 3.0

A grocery-story-grape, slip-and-fall case in New Jersey prompted the state high court to limit the mode-of-operation doctrine in premises liability.

I don't usually take interest in the nuances of New Jersey tort law, but the mode-of-operation doctrine is a significant player in Massachusetts, where I teach. Also, slipping on grocery-store grapes is so prototypical a case in the doctrine that it's a cliché, so I could not resist.

"Mode of operation" enjoys wide but not universal support in U.S. tort law. As well explained by Wilson Elser attorney Jennifer L. Moran in commenting on the New Jersey case:

[The] doctrine relieves a plaintiff of the burden of proving actual or constructive notice of a dangerous condition in a situation in which a dangerous condition is likely to occur as a result of the nature of the business, the property’s condition or a demonstrable pattern of conduct or incidents. The rule has been applied where food is sold or served in open containers or bins, such as food courts, supermarkets or fast food restaurants. In many cases, a plaintiff’s failure to provide any evidence that the defendant had actual or constructive knowledge of the alleged dangerous condition is the defendant’s sole opportunity to obtain summary judgment to dismiss the claim. 

The doctrine is highly correlated with self-service business, and, as I said, grab-and-go grocery-story grapes count. 

A friend of mine is a grocery store manager in Australia, and you don't want to get him started on grape-related customer slip-and-falls. The aggravation is multiplied by customers' insistence on eating the merchandise, which one might think should bring some kind of assumption-of-risk theory into play. The store once tried to sell grapes in sealed bags, my mate said, but did away with them because customers were outraged to see their nicking snackery curtailed. The store had to tolerate losses and risk as a cost of customer satisfaction. My mate was elated at the advent of no-slip flooring in the produce department.

Anyway, you can see why innovation in the presentation of grape inventory has been a big deal in the grocery biz. And Sam's Club no doubt thought it was onto something big when it started selling grapes in clamshell containers.

In the New Jersey case, the court held 4-2 that the clamshell packaging moved grapes out of the mode-of-operation doctrine. Moran explained:

The court therefore found there was no foreseeable risk that grapes would fall on the ground in the process of ordinary handling by customers. The court held the mode of operation doctrine did not apply and the plaintiff had to establish the defendants knew or should have known that the grapes were on the floor for a period of time prior to the accident and failed to take reasonable remedial action. In this recent decision, the court limits the application of the mode of operation doctrine because the merchandise was in a sealed container, finding the pre-packaged merchandise did not create a foreseeable risk of spillage and there was no nexus between the plaintiff’s fall on grapes and the self-service sale of grapes in containers.

Sam's Club accomplished something that had eluded a defendant in 2003, Moran further recounted, when the court refused to suspend mode of operation for "grapes that were sold in open-top, vented plastic bags that permitted spillage."

If shoppers remain true to form, the dissent might have the better argument in the end. Dissenting justices opined that Sam's Club knows that its customers still open the clam shells in the store, setting grapes loose.

The case is Jeter v. Sam's Club, No. A-2-21 (085880) (N.J. Mar. 17, 2022). Justice Lee A. Solomon wrote the majority opinion.

Lengthier U.S. limitations period allows claim over accidental deaths of medical students in Nevis

The Massachusetts three-year statute of limitations rather than a foreign one-year statute of limitations permitted wrongful death suits in the tragic case of two medical students killed while studying abroad, a trial court ruled in March.

Plaintiffs' decedents were students from New Jersey and California studying at the Medical University of the Americas (MUA) on the island of Nevis, in the Federation of St. Christopher (Kitts) and Nevis, in the West Indies. MUA is a nonprofit based in Devens, Massachusetts.

MUA campus, Nevis
(Bazi014 CC BY-SA 3.0 via Wikimedia Commons)

The women suffered fatal burns in their MUA dormitory when a gas cooking stove connected to an external propane tank exploded. Plaintiffs sued MUA two years later in negligence, alleging failure to inspect and maintain the stove and gas piping.

The defendant sought dismissal under the one-year statute of limitation in Nevis law. The plaintiffs contended that the more generous three-year limitations period in Massachusetts pertained.

The Superior Court in Worcester, Mass., explained the choice-of-law analysis, relying on Commonwealth high court precedent and the Restatement (Second) of Conflict of Laws:

Massachusetts applies a functional approach in determining the statute of limitations when a choice of law question arises.... Generally, Massachusetts "will apply its own statute of limitations permitting the claim unless: (a) maintenance of the claim would serve no substantial interest of the forum; and (b) the claim would be barred under the statute of limitations of a state having a more significant relationship to the parties and the occurrence." .... "Stated in affirmative terms, a forum should apply its own statute of limitations permitting the claim if it would advance a substantial forum interest and would not seriously impinge upon the interests of other states." .... The focus of this choice of law analysis is on the timeliness of the action, rather than the underlying claim.

The court reasoned that oversight of the dorm was a function of the defendant's management in and directives from Massachusetts. And Nevis's interest was less than Massachusetts's when it is a Massachusetts defendant that faces liability.

The defendant also sought dismissal for forum non conveniens, and the court decided that the question is premature.

The case is Balasanyan v. R3 Education Inc., No. 2085CV01052 (Mass. Super. Ct. Mar. 29, 2022), Justice David M. Hodge presiding.

Court denies police immunity under state tort claims act in death of intoxicated man in protective custody

Michael Coghlan CC BY-SA 2.0 via Wikimedia Commons

In a lawsuit over the death of an intoxicated man in police protective custody, the defendants were not entitled to immunity under exceptions to the Massachusetts Tort Claims Act (MTCA), the Commonwealth Appeals Court held in April.

Police in New Bedford, Mass., took the plaintiff's decedent into protective custody upon finding him in a state of heavy intoxication and disturbing the peace. Police put the man in a county jail cell, where he got into an altercation with another detainee. The other detainee pushed the man to the ground, where he hit his head. The man died from complications of the injury.

Defendant officials sought immunity from the plaintiff's negligence lawsuit under the discretionary function exception to the MTCA, section 10(b), and under the causation limitation of MTCA section 10(j).

Section 10(b) is similar to the discretionary function exception of the Federal Tort Claims Act. It disallows tort claims when public defendants exercise policy-making discretion, even when discretion is abused. The theory behind this exception is that public officials require latitude to make decisions, good and bad, and not every government decision should be second-guessed in litigation. The tort claims act reserves for litigation cases in which standards of conduct are set or clear, and the plaintiff alleges negligence relative to that standard.

The court denied defendants discretionary function immunity, because state law provides that persons in protective custody should be held at police stations, referred to appropriate care facilities, or returned home. The plaintiff alleged that the decedent's commitment to the county jail was improper and proximately caused the injury and death. Police had no discretion under the law to detain the decedent in the county jail.

MTCA section 10(j) is a creature specially of commonwealth law and articulates a potent liability limitation arising in causation. Section 10(j) disallows liability for 

any claim based on an act or failure to act to prevent or diminish the harmful consequences of a condition or situation, including the violent or tortious conduct of a third person, which is not originally caused by the public employer or any other person acting on behalf of the public employer.

Thus, state defendants disavow liability under section 10(j) when the plaintiff's liability theory is in the nature of a failure to supervise or intervene, and the more proximate cause of the injury is the conduct of a third party. Here, the defense pointed to the push to the ground by the decedent's fellow detainee, if not the decedent's own provocation.

The court also denied the defendants 10(j) immunity. The official act relevant to the plaintiff's claim was the decision to place the decedent in a county jail cell with potentially dangerous detainees, the court opined, not the precise mechanism of injury that ensued.

The case is Baptista v. Bristol County Sheriff's Department, Nos. 20-P-731 & 20-P-778 (Mass. App. Ct. Apr. 15, 2022). Justice Peter J. Rubin wrote the opinion of the unanimous panel.