Law.com Subscribers SAVE 30%

Call 855-808-4530 or email [email protected] to receive your discount on a new subscription.

Decisions of Interest

By ALM Staff | Law Journal Newsletters |
April 06, 2004

Costs and Attorneys' Fees Under Rule 68 Offer of Judgment

An employee who accepted the employer's Rule 68 offer of judgment that included all “costs” available under local, state or federal statutes, was precluded from recovering attorneys' fees under the New York City Human Rights Law (NYCHRL). Wilson v. Nomura Securities Int'l, 2004 WL 377316 (2d Cir. 3/2/04) (Newman, Winter, and B.D. Parker, Circuit Judges) NYCHRL 8-502(f) provides that “the court … may award the prevailing party costs and reasonable attorney's fees.” The employee argued that the term “costs” is distinct from “attorney's fees” under the NYCHRL. The district court agreed, and awarded the employee attorneys' fees pursuant to the NYCHRL.

The Second Circuit reversed, holding that when a plaintiff prevails on two overlapping claims, he or she is entitled to only one award of fees for the indivisible legal work preformed. In the present case, the federal and city claims were grounded on the same core set of facts and related legal theories, which limited the recovery to a single award of attorneys' fees as provided in the Rule 68 order of judgment.

For Defendants-Employer Appellants-Cross-Appellees, Pillsbury Winthrop LLP, by Janet A. Broeckel and Abbie J. Chessler, New York.

For Plaintiff-Employee-Appellee-Cross-Appellant, Liddle & Robinson, LLP, by Blaine H. Bortnick, New York.

Employer Liable for Discriminatory Acts That Occur in New York

The protections of the New York Human Rights Law extend to nonresident employees so long as the discriminatory acts take place in New York. Torrico v. Int'l Bus. Machines Corp., 2004 WL 439493 (S.D.N.Y. 3/9/04) (Lynch, D.J.)

The evidence supported the employee's contention that the discriminatory acts — the employer's refusal to accommodate the employee's request for more time to seek a new position and its termination of the employee — were taken by the employer's representatives who were based in New York. The court determined that “Because a reasonable juror could infer that [employer's] allegedly discriminatory conduct took place in New York, the court cannot conclude as a matter of law that the NYHRL does not protect him.”

For Plaintiff, Timothy M. Seward, Potomac, MD.

For Defendant, Epstein, Becker & Green, L.L.P., by John Houston Pope, New York.

Retaliatory Employment Reference

An employee whose unlawful termination claim was insufficient to withstand summary judgment was nevertheless able to establish a retaliation claim based on her former employer's providing of an unfavorable reference to a prospective employer. Serrano v. Schneider, Kleinick, Weitz, Damashek & Shoot, P.C., 2004 WL 345520 (S.D.N.Y. 2/24/04) (Chin, D.J.).

The employee, a Hispanic woman, was terminated after she refused to come to work during a week in which she wanted to take vacation. The employer warned her that her failure to appear at work would result in termination. The employee filed a discrimination complaint with the State Division of Human Rights shortly thereafter alleging discrimination on the basis of race. An acquaintance of the employee called the employer, purporting to be a prospective employer, and recorded that conversation. The employer's representative said that the employee's departure was “not a friendly termination” and refused to provide a written reference because of the “pending litigation” the employee commenced against the firm. The employer's representative admitted at his deposition that he told prospective employers that he believed the employee's lawsuit was frivolous.

The court held that a reasonable jury could conclude that the employer's comments to prospective employers constituted an adverse employment action because the employer knew, or should have known, that such comments would make it difficult for the employee to obtain new employment. The court further held that a jury could find a causal connection between the adverse action and the protected activity because the employer's unfavorable reference explicitly mentions the protected activity — the “frivolous” lawsuit.

For Plaintiff, Edward H. Wolf, by Jason M. Wolf, Bronx.

For Defendant, Spar & Bernstein, P.C., by Joseph A. Turco, New York.

Costs and Attorneys' Fees Under Rule 68 Offer of Judgment

An employee who accepted the employer's Rule 68 offer of judgment that included all “costs” available under local, state or federal statutes, was precluded from recovering attorneys' fees under the New York City Human Rights Law (NYCHRL). Wilson v. Nomura Securities Int'l, 2004 WL 377316 (2d Cir. 3/2/04) (Newman, Winter, and B.D. Parker, Circuit Judges) NYCHRL 8-502(f) provides that “the court … may award the prevailing party costs and reasonable attorney's fees.” The employee argued that the term “costs” is distinct from “attorney's fees” under the NYCHRL. The district court agreed, and awarded the employee attorneys' fees pursuant to the NYCHRL.

The Second Circuit reversed, holding that when a plaintiff prevails on two overlapping claims, he or she is entitled to only one award of fees for the indivisible legal work preformed. In the present case, the federal and city claims were grounded on the same core set of facts and related legal theories, which limited the recovery to a single award of attorneys' fees as provided in the Rule 68 order of judgment.

For Defendants-Employer Appellants-Cross-Appellees, Pillsbury Winthrop LLP, by Janet A. Broeckel and Abbie J. Chessler, New York.

For Plaintiff-Employee-Appellee-Cross-Appellant, Liddle & Robinson, LLP, by Blaine H. Bortnick, New York.

Employer Liable for Discriminatory Acts That Occur in New York

The protections of the New York Human Rights Law extend to nonresident employees so long as the discriminatory acts take place in New York. Torrico v. Int'l Bus. Machines Corp., 2004 WL 439493 (S.D.N.Y. 3/9/04) (Lynch, D.J.)

The evidence supported the employee's contention that the discriminatory acts — the employer's refusal to accommodate the employee's request for more time to seek a new position and its termination of the employee — were taken by the employer's representatives who were based in New York. The court determined that “Because a reasonable juror could infer that [employer's] allegedly discriminatory conduct took place in New York, the court cannot conclude as a matter of law that the NYHRL does not protect him.”

For Plaintiff, Timothy M. Seward, Potomac, MD.

For Defendant, Epstein, Becker & Green, L.L.P., by John Houston Pope, New York.

Retaliatory Employment Reference

An employee whose unlawful termination claim was insufficient to withstand summary judgment was nevertheless able to establish a retaliation claim based on her former employer's providing of an unfavorable reference to a prospective employer. Serrano v. Schneider, Kleinick, Weitz, Damashek & Shoot, P.C., 2004 WL 345520 (S.D.N.Y. 2/24/04) (Chin, D.J.).

The employee, a Hispanic woman, was terminated after she refused to come to work during a week in which she wanted to take vacation. The employer warned her that her failure to appear at work would result in termination. The employee filed a discrimination complaint with the State Division of Human Rights shortly thereafter alleging discrimination on the basis of race. An acquaintance of the employee called the employer, purporting to be a prospective employer, and recorded that conversation. The employer's representative said that the employee's departure was “not a friendly termination” and refused to provide a written reference because of the “pending litigation” the employee commenced against the firm. The employer's representative admitted at his deposition that he told prospective employers that he believed the employee's lawsuit was frivolous.

The court held that a reasonable jury could conclude that the employer's comments to prospective employers constituted an adverse employment action because the employer knew, or should have known, that such comments would make it difficult for the employee to obtain new employment. The court further held that a jury could find a causal connection between the adverse action and the protected activity because the employer's unfavorable reference explicitly mentions the protected activity — the “frivolous” lawsuit.

For Plaintiff, Edward H. Wolf, by Jason M. Wolf, Bronx.

For Defendant, Spar & Bernstein, P.C., by Joseph A. Turco, New York.

This premium content is locked for Entertainment Law & Finance subscribers only

  • Stay current on the latest information, rulings, regulations, and trends
  • Includes practical, must-have information on copyrights, royalties, AI, and more
  • Tap into expert guidance from top entertainment lawyers and experts

For enterprise-wide or corporate acess, please contact Customer Service at [email protected] or 877-256-2473

Read These Next
Strategy vs. Tactics: Two Sides of a Difficult Coin Image

With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.

'Huguenot LLC v. Megalith Capital Group Fund I, L.P.': A Tutorial On Contract Liability for Real Estate Purchasers Image

In June 2024, the First Department decided Huguenot LLC v. Megalith Capital Group Fund I, L.P., which resolved a question of liability for a group of condominium apartment buyers and in so doing, touched on a wide range of issues about how contracts can obligate purchasers of real property.

Fresh Filings Image

Notable recent court filings in entertainment law.

Major Differences In UK, U.S. Copyright Laws Image

This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.

The Article 8 Opt In Image

The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.