Jottings By An Employer's Lawyer

Wednesday, March 20, 2013

Bullying and My Predictive Abilities — New York at Risk

If there is anyone who started with me when I made my first post in July, 2002 you will know that one topic that has come up repeatedly is my watch on the movement to have some state enact an anti-bullying law. It is much easier now than in the early days, because of  Professor David Yamada's Minding the Workplace Blog, which covers those developments regularly.

In addition to being a tenured professor and Director of the New Workplace Institute at Suffolk University School of Law in Boston, he is also the author of the model Healthy Workplace Act, which has been the basis for most of the bills which have been introduced in various legislatures (23 states according to the Healthy Workplace Campaign website).

The first was just 10 years ago.  Already in 2013, there have been eight states where some version has been introduced. Professor Yamada has an update in this post, Healthy Workplace Bill: March 2013 update.

In that article David notes that he and I have had a cordial disagreement over the years over the need for this legislation, as he also notes my recent sigh that I was becoming resigned to some state adopting such a cause of action much quicker than I would have ever thought when I first posted on the topic in January 2003.

Hopefully, that prediction will turn out as accurate as my March Madness brackets do, the latest versions of which are less than 72 hours from demolishment.

But, if I were to go even further out on a limb and predict which state, New York would not be a bad prediction. Why? Well because on May 12, 2010, the New York Senate became the first house of any state legislative body to pass anti-bullying legislation which would create a private cause of action. Anti-Bullying Legislation Passes NY Senate. The bill did not pass the Assembly and so died at the end of the legislative session.

However, new legislative session and in the 150 member Assembly, AB 4965 was introduced on February 13th, with 74 sponsors. (Do the math, it is not pretty for opponents.) The companion bill S3863 was introduced in the Senate on February 25.

If you happen to live or do business in New York, you might check out some of the reasons why I think this legislation is so dangerous, see Bullying As a Cause of Action — One Large Step Closer.

And if you agree, please send a copy to your Senator or Assemblyman.


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Stipulating Your Way Out of Federal Court

In certain parts of Texas, it is not uncommon for plaintiffs to stipulate that they will not demand or accept an amount in excess of $74,999.99 in order to avoid the amount in controversy requirement when the grounds for removal is diversity.

It works, and yesterday was explicitly sanctioned by the U.S. Supreme Court in The Standard Fire Insurance Co. Knowles (3/20/13):
Knowles also points out that federal courts permit individual plaintiffs, who are the masters of their complaints, to avoid removal to federal court, and to obtain a remand to state court, by stipulating to amounts at issue that fall below the federal jurisdictional requirement. That is so.  ... But the key characteristic about those stipulations is that they are legally binding on all plaintiffs.
But that was really not the point of the holding, just an explanation along the way to the real holding of the Court in Knowles: a plaintiff filing a Rule 23 class action, can not avoid federal jurisdiction by stipulating to an amount in controversy less than the $5 million threshold for removal under the Class Action Fairness Act of 2005,  CAFA for short.

In a straight forward and unaminous decision, Justice Breyer makes a simple point. In order to avoid federal court the stipulation must be binding and no one has the power to bind future members of a class at the time of filing.

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