In Thompson v. North American Stainless, the US Supreme Court last week held that the fiancé of an individual who filed an EEOC complaint could bring a claim for retaliation under Title VII.
In this case, the plaintiff was terminated three weeks after the EEOC notified his employer that his fiancé had filed a charge alleging sex discrimination against that employer. The plaintiff sued, alleging that the employer fired him in retaliation for his fiancé’s actions. The Sixth Circuit held that he did not engage in activity protected by the antiretaliation provision of Title VII, and therefore was not part of the class of persons for protected by the law.
In a unanimous opinion written by Justice Scalia, the Supreme Court overruled the Sixth Circuit and held that the plaintiff had alleged facts sufficient to state a retaliation claim under Title VII. The Court noted that the Supreme Court had previously held that the Title VII antiretaliation provision prohibits “any employer action that well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” The Court held that it is “obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired.” While the Court did not “identify a fixed class of relationships for which third-party reprisals are unlawful,” it noted that firing a close family member would almost always qualify, whereas “inflicting a milder reprisal on a mere acquaintance will almost never do so.”
The Court also clarified the question of who may sue under Title VII, which allows civil actions to be brought by “the person claiming to be aggrieved.” The Court rejected an argument that this language should be construed as allowing anyone with Article III standing to bring a claim. The Court instead applied the test from the Administrative Procedures Act, “under which a plaintiff may not sue unless he falls within the zone of interests sought to be protected by the statutory provision whose violation forms the legal basis for his complaint.”
In Gaeta v. Perrigo Pharmaceuticals Co.,the Ninth Circuit this week joined its sister circuits in holding that the Supreme Court case Wyeth v. Levine, 129 S. Ct. 1187 (2009), which established that failure-to-warn cases against brand name drug manufacturers are not preempted by federal law, also established no preemption of such claims against generic drug manufactures.
In Gaeta, a minor child had been treated with a "hepatotoxic" drug -- one know to cause liver failure -- after having two benign moles removed. He was prescribed ibuprofen for pain but his parents purchased Perrigo's generic over-the-counter ibuprofen. The child developed a fever and was eventually referred to the emergency room with a diagnosis of liver failure. He received a liver transplant.
The child's parents filed suit against Perrigo alleging, among other things, that Perrigo failed to warn prescribing physicians and consumers of the increased risk of acute liver injury and renal failure when ibuprofen is taken concurrently with other hepatotoxic drugs.
Perrigo opposed the claim on two preemption grounds: First, that it is impossible for Perrigo to comply with both state law duties to warn and the FDA regulations governing generic drugs; and, alternatively, that plaintiffs' state law claim obstructs the full accomplishment of the purposes and objectives of Congress in enacting the approval process for manufacturers of generic drugs.
The Ninth Circuit rejected both arguments, finding that California's state law duty to warn -- by placing an appropriate label on generic ibuprofen -- would neither be impossible to comply with nor obstruct the objectives of Congress. The Court further held that, absent evidence that the FDA would have rejected the specific hepatotoxicity warnings proposed by plaintiffs, their state law failure-to-warn claim was not preempted by FDA regulations.
As more courts require electronic filing, the possibility arises that judges will read pleadings and briefs from a screen rather than on paper. This post on the CEBblog discusses the challenge of making briefs lively and readable in an electronic format, suggesting that the answer may lie in adopting the style and formatting found on web sites.
In UMG Recordings, Inc. v. Augusto, the Ninth Circuit earlier this month held that a music company can't prevent resale of CDs it distributed for free, even though the CDs bore labels saying they were distributed for promotional purposes and not for sale. Plaintiff UMG is a music company that sends promotional CDs to music critics and radio programmers. Defendant Augusto was not a recipient of the CDs, but he nevertheless obtained a number of them and offered them for sale on eBay. UMG sued for copyright infringement, contending that the restrictive label on the CDs granted only a license and prevented resale. The Ninth Circuit disagreed, holding that the promotional distribution was a "sale" for purposes of copyright law, and once plaintiff transferred title it could not prevent re-sale. The court applied the "first sale" doctrine, which provides that, once a copyright owner places a copyrighted item in the stream of commerce, it cannot prevent resale of that copy.
The fallout from the economic meltdown won't excuse a failure to respond to a complaint, according to the Oregon Court of Appeals in a case decided Wednesday. In Saldivar v. Roberts, plaintiff filed a lawsuit claiming fraud, misrepresentation, conversion, and unfair labor practices. When defendants failed to respond in a timely fashion, plaintiff obtained a default judgment. Defendants later moved to set aside the default, offering an affidavit by one of the defendants describing the personal and business matters that overwhelmed him at the time the complaint was filed. Defendant's account of the severe blow to his real estate business from the recession, plus family crises, caused the trial court judge to set aside the default due to excusable neglect.
The Court of Appeals reversed, observing that defendant's dire circumstances did not render him unable to respond to the complaint. "We conclude that simply choosing to ignore a matter -- even in the face of difficult circumstances -- does not qualify as a reasonable explanation so as to give rise to excusable neglect."
On Thursday, a divided Oregon Supreme Court affirmed a jury award of punitive damages of $175,000 in a case in which compensatory damages were only $6,000. In Hamlin v. Hampton Lumber Mills, Inc., plaintiff was a former employee of defendant who was not rehired after recovering from a workplace injury. He claimed discrimination based on his filing of a workers' compensation claim.
The Court of Appeals, in reviewing the verdict in 2008, had held that the punitive damages of 30 times compensatory damages was grossly excessive under the Due Process Clause of the U.S. Constitution, and stated that the ratio of punitive to compensatory damages in non-personal-injury cases should generally not exceed 4:1. In this week's ruling, the Supreme Court disagreed and declined to apply the single-digit ratio, holding that where the compensatory award is small -- $12,000 or less -- and where defendant's conduct is sufficienly reprehensible, an award in excess of a single-digit ratio is not grossly excessive.
Justice Martha Lee Walters wrote the majority opinion for five members of the Court. Retiring Justice Michael Gillette wrote a dissenting opinion. He noted that judges have struggled to apply Due Process limitations in cases such as this, and ended with a plea to the United States Supreme Court to give state courts more guidance on the issue.