Nancy Wright (Partner-New York, NY) and Yusha Hiraman (Of Counsel-New York, NY) garnered a low five-figure nuisance value settlement for their employer client in a matter slated for a public hearing before the New York State Division of Human Rights following a probable cause finding. This matter involved claims of age, disability, and sex/gender discrimination, as well as sexual harassment, brought by a former employee who abandoned her job after filing an internal complaint, and later alleged she was constructively discharged for complaining. The pre-hearing settlement conference was scheduled before an Administrative Law Judge, during which Yusha skillfully handled the settlement negotiations, highlighting the claims’ deficiencies and resolving the matter with the State Division attorney within an hour. Notably, Yusha emphasized the complainant’s clear failure to mitigate damages for more than two years – an argument that helped drive the swift resolution.

Nancy Wright (Partner-New York, NY) and Jenna Agatep (Associate-New York, NY) obtained four “no probable cause” findings and case dismissals from the New York State Division of Human Rights (DHR) for the firm’s education clients: two colleges, a charter school, and a private school.

• In the first case, a security guard sued the firm’s college client for retaliation after he was removed from campus to another location, for allegedly reporting sexual harassment involving two other security guards. Nancy and Jenna argued that (1) the college was not the complainant’s employer as he was hired and placed by a security firm at the college; (2) the college, upon receiving complainant’s actual employer’s investigative notes regarding the reported incident, uncovered that complainant and one of the security guards had participated in the very sexual harassment incident complainant raised, and requested that complainant’s employer remove the guards from its premises due to the investigation findings. The employer complied and, it appeared, later terminated complainant’s employment. In its Determination and Order After Investigation, the DHR agreed with the college’s arguments and dismissed the complaint for lack of probable cause to support discrimination. 
   
• In the second case, an applicant for a teaching position sued the firm’s charter school client for age discrimination and retaliation after she was not selected for the position. Nancy and Jenna argued that (1) complainant did not proffer any evidence connecting her age or opposition to discrimination to the school’s hiring decision; (2) complainant was not qualified for the position, having performed poorly during her in-person interview and mock presentation, giving the school a legitimate business reason for not selecting her; and (3) the candidate actually selected for the role was in his 50s – the same protected age group as the complainant thereby negating any inference of age discrimination. The DHR once again agreed and dismissed the complaint for lack of probable cause. 
   
• In the third case, a prospective male applicant to a film festival hosted by an all-women’s college sued the program for gender discrimination. The complainant alleged that the program discriminates against male screenwriters and filmmakers by not allowing them to apply based on the language on their website. Nancy and Jenna argued that (1) the festival does not prohibit anyone from applying based on their gender and, more importantly, (2) the complainant had not even applied to the program and therefore could not have been denied entry. After investigation, the DHR agreed and dismissed the complaint. 
   
• In the final case, an attorney candidate for a part-time swim instructor position with minor students sued the firm’s private school client for discrimination based on his arrest/conviction record. Complainant was offered conditional employment but after a background check returned certain convictions including sexual offenses, the client rescinded its offer pending further investigation. Once the school concluded its investigation and found the results were erroneous, it reinstated the complainant’s offer. However, the complainant was irate and refused to accept the offer, voiced his indignation, demanded apologies from the head of the school, and stated his intent to file suit. Nancy and Jenna argued, and the DHR agreed, that the school had a legitimate non-discriminatory business reason for rescinding complainant’s job offer; the rescindment was ultimately voided in a matter of days and the offer was then reinstated and refused. As a result, the DHR dismissed the case finding no probable cause to support discrimination.

Nancy Wright (Partner-New York, NY) and Amy Largacha Cedeno (Associate-New York, NY) defended a prominent private research corporation and three individually named employees in a lawsuit filed by a former employee who alleged discrimination, hostile work environment, and retaliation under state and city discrimination laws. In 2024, Nancy and Amy successfully secured dismissal of the federal claims filed in the Southern District Court of New York, which opted not to exercise supplemental jurisdiction over the state and city claims. As a result, the plaintiff re-filed a complaint alleging the state and city claims in state court, Queens County. Nancy and Amy filed a motion for pre-answer dismissal on the grounds that all the claims were legally insufficient. They argued that the plaintiff failed to plead any actions by the defendants based on discriminatory animus regarding the plaintiff’s protected status. Further, they argued that the plaintiff had failed to establish the necessary elements for a retaliation claim as she had failed to plead any participation in a protected activity – a threshold requirement. The court agreed and dismissed the claims against all defendants in their entirety.

Rebecca Young (Partner-Birmingham, AL) and Porter Simpler (Associate-Birmingham, AL) obtained complete dismissal of a complaint against a housing authority client alleging various Title VII claims, including sex discrimination, hostile work environment, and retaliatory discharge. Rebecca and Porter argued that the plaintiff failed to state a claim. Plaintiff alleged that male employees were treated more favorably and outlined a year-long history of her supervisor treating her harshly, regularly cursing at her, using other inappropriate language, and threating to fire her; a few days after she contacted the EEOC to make a complaint, her employment was terminated. Rebecca and Porter argued that the male employees were not similarly situated to provide an inference of sex discrimination. They argued the allegations that the plaintiff's supervisor used profanity and other inappropriate language did not amount to a hostile work environment under Eighth Circuit precedent. As to the retaliation claim, Rebecca and Porter pointed out that the overwhelmingly detailed complaint contained allegations that supported an inference that the plaintiff was discharged because of her work performance rather than retaliation. Further, even if the plaintiff had sufficiently pled but-for causation, the record from the pleadings supported that there were “lawful, obvious alternative explanations for the alleged conduct” that rendered the complaint implausible. The court agreed and dismissed all the claims.

Nancy V. Wright (Partner-New York, NY), Saige Subick (Of Counsel-New York, NY), and Michael Colgan (Associate-New York, NY) secured a complete victory for our client, a public college under the State University of New York, in New York City. In a hard-fought, multi-witness disciplinary proceeding arbitrated under N.Y. Education Law § 2587 and the Collective Bargaining Agreement (CBA), against the employee’s union. Our client brought this action against an IT analyst, who had been with the client since 2007, who repeatedly refused to perform assigned tasks, engaged in loud and argumentative behavior in the workplace, consistently abused the time and attendance policy, and, most seriously, made a direct threat of gun violence against a supervisor following the denial of a work-from-home request. The team presented extensive evidence and multiple witness testimony demonstrating a pattern of performance deficiencies and support of the gross misconduct and insubordination charges. The team organized five years of performance documentation into an exhibit outlining that the employee had been counseled and submitted a concise, fact-driven 40-page post-hearing summation brief that, among other arguments, showed the threat of violence as per se terminable misconduct, rendering all other charges surplusage. After a four-day evidentiary hearing spread across five months, the Hearing Officer issued a Report & Recommendation that agreed with the Wilson Elser team on virtually all points. The arbitrator found “gross misconduct” and “just cause” for termination under § 2587 and Article 28.28 of the CBA. The Union’s demand for reinstatement with back pay was denied in its entirety. 

Jaqueline Harding (Partner-Los Angeles) successfully defended a global car manufacturer client before the California Labor Commissioner against a claim brought by a long-term employee alleging wrongful withholding of a nondiscretionary production/performance bonus and associated waiting time penalties. The employee asserted entitlement to the bonus despite not meeting the program’s qualifying criteria.

The California Labor Commissioner ruled in favor of our client, finding that the company’s bonus program constituted a clear and unambiguous contractual agreement that specifically outlined the eligibility requirements for who qualified to receive bonuses. The Commissioner noted that, despite multiple discussions with management, the employee failed to meet the performance standards necessary to be eligible for the bonus. The Commissioner issued an Order, Decision and Award denying the bonus payment and waiting time penalties.

​Giovanna Bonafede (Associate-McLean, VA) scored a significant win for our housing authority client in a Fair Housing/ADA case. The plaintiff brought an action in the U.S. District Court for the Eastern District of Virginia against our client and their individual employees alleging violations of the Fair Housing Act, the Americans with Disabilities Act, the American Rehabilitation Act, and the Fourteenth Amendment’s Due Process Clause, as well as intentional infliction of emotional distress. The plaintiff alleged that our client and their employees discriminated against her by denying her housing voucher following an internal appeal process conducted by the housing authority. Plaintiff previously filed a near identical suit against our clients in the same court, which was dismissed without prejudice and which plaintiff appealed to the Fourth Circuit. The Fourth Circuit affirmed the court’s dismissal. Giovanna’s motion to dismiss argued (1) that res judicata bars the plaintiff’s claims, (2) the plaintiff’s claims are time-barred, and (3) the plaintiff failed to state a claim upon which relief can be granted. The Court found that the claims were time-barred by the appropriate statutes of limitations and did not address the remaining arguments. The plaintiff attempted to salvage her claims by arguing that the statutes of limitations were tolled through the time she spent on other lawsuits and the appeal. However, the Court agreed with Giovanna, finding that “If a lawsuit is dismissed without prejudice, meaning it can be refiled, ‘the tolling effect of the filing of the suit is wiped out and the statute of limitations is deemed to have continued running from whenever the cause of action accrued, without interruption by that filing.’” The Court was not swayed by the plaintiff’s argument that the enforcement of her voucher termination tolls her claims in seeking to invoke the continuing violation doctrine. The Court determined that a “continuing violation is occasioned by continual unlawful actions, not continual ill effects from an original violation.”

Dean Rocco (Partner-Los Angeles, CA) and Jack DeWolfe (Associate-Los Angeles, CA) obtained a defense verdict on a religious harassment and discrimination case in arbitration. The plaintiff nurse alleged her employer, a health care facility, wrongfully denied her request for an exemption to its COVID-19 vaccine mandate and harassed her based on her asserted religious beliefs. Dean and Jack established that alleged comments at work did not constitute unlawful harassment, and the circumstances surrounding the employer's original denial of the exemption request, combined with its eventual reversal of that decision, did not constitute a failure to accommodate the employee's religious beliefs or provide grounds for the employee to quit and sue for constructive wrongful termination.

Isaac Netzer (Associate-New York, NY) and Maryan Alexander (Partner-Baltimore, MD) represented an American multinational automotive and clean energy company in a dispute that stemmed from a 2015 solar panel installation at the plaintiff’s property, with allegations surfacing in 2023 regarding roof compromise and electrical system malfunctions. The plaintiff asserted claims for breach of contract, violation of New York General Business Law §349, fraud in the inducement, and negligence. Isaac served as the lead on the motion to dismiss, guiding the defense strategy and briefing that resulted in a comprehensive dismissal of the $5 million complaint. The Suffolk County Supreme Court granted our motion to dismiss all claims brought by the plaintiff. The court found that the breach of contract claim was insufficiently pleaded, as it failed to identify the specific contractual provisions allegedly breached. The General Business Law §349 claim was dismissed because it arose from a private contractual dispute rather than conduct impacting consumers at large. The fraud in the inducement claim was dismissed for lack of particularity, as it did not detail specific misrepresentations or when they were made. The negligence claim was found to be duplicative of the contract claim and did not allege a distinct injury.

Sergio Casiano (Partner-Miami) and Shawna Biggs (Associate-West Palm Beach) prevailed on a motion for summary judgment in the U.S. District Court, Southern District of Florida, against all claims brought against Wilson Elser’s client, the owner of a restaurant and rooftop bar. The plaintiff, a former employee of the restaurant/bar, filed a lawsuit against our client alleging violations of the Fair Labor Standards Act (FLSA), including failure to pay overtime, tip confiscation, minimum wage violations, breach of a service charge agreement, and retaliation. Upon the plaintiff’s filing of a motion for summary judgment, Sergio and Shawna filed a competing summary judgment motion asserting that the 7(i) exemption applies to the rooftop bar, and as such, the bar is exempt from the overtime pay requirements. They further argued that the tip pools are valid because the restaurant pays above the minimum wage, and the pools do not include employees who are prohibited from participating. Sergio and Shawna also refuted the retaliation claim, maintaining that the plaintiff’s reduced hours and termination were unrelated to his complaints and due to other legitimate reasons. The court granted summary judgment in favor of Wilson Elser’s clients as to all claims, concurring that the rooftop bar was exempt from overtime requirements under the 7(i) exemption, the tip pools were lawful, the restaurant correctly applied the tip credit, and no causal connection existed between the plaintiff’s complaints and the alleged retaliatory actions.

Eric Cheng (Partner-White Plains, NY) and Alex J. Ru (Associate-New York, NY) obtained a Decision and Order from Richmond County Supreme Court granting summary judgment in a New York Labor Law case that involved an alleged construction accident at a two-family residence where the plaintiff sustained injuries when a fence post fell on his foot. Our client, under a LLC, owned a two-family residence that functions exclusively as a private home for the client’s family. We moved for summary judgment on the basis that homeowners of a one- or two-family dwelling are statutorily exempt from liability under Labor Law sections 240 and 241(6), and that our client cannot be held liable under section 200 because the plaintiff’s accident arose from the means and method of his task and they did have the authority to supervise or control those methods or means. The plaintiff argued that the homeowners’ exemption is not available to (1) corporate owners of the residence, (2) a non-owner (or the entities principals) occupied residences, or (3) when the owner derives a commercial benefit even if no rent is charged if the tenants covered the expenses and maintenance (real estate taxes, insurance premiums, utilities, and repairs) of the residence. The court adopted Eric and Alex’s argument that the ownership entity, occupancy of the premises, or whether the tenant covers the costs of maintenance and expenses is immaterial as to the applicability of the homeowners’ exemption. Rather, the determinative factor in this case is the residential purpose of the property. The court found that the premises qualified for the homeowners’ exemption because it served no commercial purposes. Our client did not receive or collect rent from her family, and if the property is sold the proceeds would go to the family. The court further agreed that deposition testimony and video of the accident establishes that our client did not have authority to supervise or control the methods or means of the plaintiff’s work, and that the accident occurred because of the manner in which the work was performed and not the result of a dangerous condition on the property. 

Kelsi Wade Piatkowski (Of Counsel-Houston, TX) and Zoe Ansell (Associate-Houston, TX) obtained an order of dismissal in the U.S. District Court for the Southern District of Texas in the preliminary stages of a lawsuit brought against Wilson Elser’s client, a global charitable organization. The plaintiff in this matter alleged discrimination and harassment by our client, resulting in economic loss. In lieu of answering the claims, Kelsi and Zoe filed a motion pursuant to 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, arguing that the plaintiff failed to establish proper subject matter jurisdiction to continue the lawsuit in federal court, in addition to failing to state a claim upon which relief could be granted. The court concurred, finding that it had no subject matter jurisdiction to consider the plaintiff’s claims, dismissing the lawsuit without addressing the second argument.

Nancy Wright (Partner-New York, NY) and associates Stefanie Shmil and Amy Largacha Cedeno prevailed in Queens County Supreme Court on behalf of a practitioner and his medical practice in a case in which a former patient alleged she was sexually abused from 1994–2006, without proffering any specific dates. Plaintiff asserted claims under the Adult Survivors Act sounding in assault, battery, negligence, negligent and intentional infliction of emotional distress, and negligent hiring, retention, and supervision. The court, in the very first line of its Preliminary Considerations, noted and echoed the teams’ dismissal argument that the plaintiff’s submission was deficient in a number of respects, highlighting the incorrect caption, listing of the wrong plaintiff, and referencing the wrong defendants and arguments culled from another case – and noted that the plaintiff’s counsel’s excuse for these errors was “unacceptable and unavailing” and cited the pitfalls of copying and pasting from documents in other cases. The court agreed with the team’s dismissal arguments that the plaintiff’s various negligence, negligent infliction of emotional distress, and negligent hiring and supervision claims were legally deficient and, in some instances, duplicative and dismissed those claims. The court also granted our client’s request for a more definitive statement as to the remaining claims, directing the plaintiff to amend her complaint to set forth specific dates, or at least the month and years when she alleges the sexual abuse purportedly occurred. 

Nancy Wright (Partner-New York, NY) successfully represented an Addiction Care Center before the New York State Division of Human Rights in a case in which the claimant, a former case manager, alleged that our client denied him a reasonable accommodation and leave for his disability after he was diagnosed with liver and prostate cancer, then later terminated his employment. Nancy argued that the contemporaneous documentary record showed that the claimant’s employment was terminated because he repeatedly violated the company’s policies despite several warnings, including theft of time, and that in each instance where the claimant sought time off, his request was granted. Further, the claimant was granted a modified work schedule relative to his treatment and disability-related needs, which he consistently violated by, among other actions, refusing to clock out when leaving for his appointments, even after repeated warnings. The State Division agreed with Nancy’s arguments that the applicable disability law has no requirement that exceptions should be made for blatant policy violations because of the claimant’s disabilities; reducing the stated penalties for undisputed workplace misconduct or poor work performance is not a reasonable accommodation; and, it is well settled law that corrective action in the form of verbal or written counseling of an employee for policy violations is not disability harassment.

Dean Rocco (Partner-Los Angeles, CA) and John Immordino (Of Council-Los Angeles, CA), with the able assistance of paralegals Barry Lipsky and Joyce Marilyn, secured a defense verdict on behalf of two prominent ski resorts in Los Angeles County Superior Court. The case arose from an advertising services agreement the advertising agency claimed our clients breached by terminating it without sufficient cause or notice per contract terms. Our clients argued they terminated the agreement with good cause and sufficient notice, and that they could and would have terminated the agreement for other breaches discovered during the litigation. Dean and John argued the plaintiff should not be awarded damages given the evidence presented in the case and the breaches discovered during litigation. The jury found there was a breach of the contract, but not of the implied covenant of good faith and fair dealing, and also that plaintiff failed to establish damages. The net effect was a defense verdict for our client.

Bruno W. Katz (Partner-San Diego, CA) was successful in obtaining dismissal of a charge of discrimination jointly filed before the EEOC and the California Civil Rights Division (CRD). The CRD took responsibility for the investigation of the claims. Our client, a multinational transportation company, was alleged to have a supervisor giving favorable treatment to French-Canadian employees over American employees at a site in Northern California. A very detailed position paper with extensive evidence was provided. The CRD closed their case for insufficient evidence. The EEOC also closed its file. These determinations are the way these agencies indicate there is no merit to the claims. 

Bruno W. Katz (Partner-San Diego, CA) and John A. Guarino (Of Counsel-San Diego, CA) secured a voluntary dismissal with prejudice in San Diego Superior Court on behalf of a U.S. medical device manufacturer in an employment case alleging discrimination, failure to accommodate, failure to engage in the interactive process, wrongful termination and retaliation. The plaintiff claims our client’s decision to terminate him was based on two impermissible factors: his medical condition/disability and his alleged reporting to his supervisor of his belief that the client fails to comply with FDA and California regulations. Seeking damages for lost earnings, punitive damages and attorney’s fees, the plaintiff maintains our client failed to engage in an interactive process with him about his alleged disabling medical conditions and made no reasonable accommodations for his continued employment. Bruno and John established that the plaintiff was hired by our client for a role almost exclusively connected to one medical device and that he was let go along with other workers connected to the device soon after its discontinuation. Through discovery and an extensive deposition of the plaintiff, the Wilson Elser team significantly attacked plaintiff’s credibility and showed that the his claims had no merit. As such, the plaintiff dismissed the lawsuit with prejudice, with no settlement costs incurred by the client. 

Bruno W. Katz (Partner-San Diego, CA) and Christina M. Heischmidt (Partner-McLean, VA) defended a nonprofit religious organization that runs a Residential Re-entry Center (RRC) in Maryland, for former prison inmates and employs Security Specialists. The International Union, Security, Police and Fire Professionals of America (SPFPA) filed an election petition with the NLRB for a vote to recognize the SPFPA as the union for the Security Specialists. Our client opposed this petition based on lack of jurisdiction as a religious organization. At the same time, the SPFPA filed an unfair labor practice (ULP) against our client alleging the suspension and ultimate termination of some Security Specialists in violation of the National Labor Relations Act (NLRA) because they were exercising their rights to seek and campaign for unionization. 

Bruno and Christina provided evidence that the RCC is funded through a grant from the federal Bureau of Prisons (BOP), which requires employees to have a BOP security clearance. The evidence showed the suspension and eventual termination of employment of the employees along with one of the supervisors was mandatory as they did not have the required security clearance. There was evidence of other non-complaining/ union supporting employees whose clearance was pulled by BOP who were also terminated. As a result of Bruno and Christina’s vigorous defense, the NLRB Regional Director ordered the ULP dismissed due to insufficient evidence to establish a violation of the NLRA. The Union also withdrew its election petition seeking recognition. The time to appeal the decision has now passed.
 

Rebecca Young (Partner-Birmingham AL) obtained summary judgment on behalf of a housing authority client accused of FMLA and ADA discrimination, failure to accommodate and constructive discharge. The plaintiff employee, who was in treatment for cancer, claimed that when she returned from medical leave her pay was wrongfully reduced in violation of the FMLA. She also claimed that our client failed to accommodate her and engaged in bullying and unfair treatment that created unbearable working conditions that led to her constructive discharge. Rebecca defended the claims by presenting overwhelming evidence in favor of the defense and arguing that the plaintiff could not satisfy her burden under the McDonnel Douglas burden-shifting framework for the FMLA claims and the modified burden-shifting analysis for the ADA discrimination and failure to accommodate claims as followed by the Eighth Circuit. For the constructive discharge claim, Rebecca relied on admissions she elicited during the plaintiff's deposition, which demonstrated that her work environment did not amount to conditions necessary to support constructive discharge. The U.S. District Court Eastern District of Arkansas agreed and granted summary judgment.

​Bruno W. Katz (Partner-San Diego, CA) prevailed on behalf of our client, a manufacturer of candles and wax products and accessories, against an election representation petition and subsequent unfair labor practice claim (ULP) filed by a union. The petition requested that the National Labor Relations Board (NLRB) order an election to allow the employees to vote to decide if they wanted to have the union recognized to represent their interests while employed by our client. The ULP alleged that once this election petition was filed, the client employer announced it was closing the facility in retaliation. A hearing was held before the NLRB-Region 19 where Bruno argued the representation petition was improper and should be dismissed due to the imminent cessation of the client's operations in Seattle under the terms of a sale of its assets executed many months prior to the election petition to another entity located in Atlanta, Georgia, which would continue the manufacturing of beeswax candles and products in Atlanta. After the submission of evidence and testimony and post-hearing briefs, the NLRB Regional Director dismissed the election petition, a finding in favor of our client. As a result of this decision, the ULP was dismissed in August 2024.

Bruno W. Katz (Partner-San Diego, CA) defended the owner of two coffee shops in San Diego, California, in a wage-and-hour dispute. The claimant made a complaint to the Department of Industrial Relations of the California Labor Commissioner's Office as to missed rest periods, late payroll, waiting time penalties for failure to timely pay all wages due at the end of employment, and liquated damages and interest for these alleged willful pay violations. Our client denied these claims and a hearing was held before a Hearing Officer of the Labor Commissioner's Office. After testimony and evidence was taken, the Department of Industrial Relations issued its decision finding no violations and entered an order that the employee take nothing by virtue of her complaint, a finding of zero liability and $0 damages on all of the employee's claims. Per the Labor Code, the employee had the right to file a de novo appeal of this decision. The time to file the appeal has run and no appeal was filed. As a result, by operation of law and statute, a final judgment in favor of the client and against the employee was entered.

Michael Boulhosa (Partner-White Plains) and Eian Weiner (Associate-White Plains) obtained summary judgment in the Supreme Court of the State of New York, New York County, on behalf of a plumbing company. The plaintiff in this matter alleges he was injured while working as an assistant for our client/insured, who the property owner retained to install a new low-pressure gas line on the subject premises. The plaintiff maintains he fell over a railing onto the sidewalk below while attempting to retrieve materials the client left behind at the job site, allegedly sustaining a traumatic brain injury (TBI) and other severe injuries, leaving him with lifelong disabilities, according to his treating physicians. The plaintiff did not return to work after the accident and received workers’ compensation benefits through our client. 

Two construction projects were ongoing at the premises when the plaintiff's accident occurred. Our client had no contractual relationship with the general construction manager, subcontractors or others working at the job site, including the construction firm or the scaffolding services company. Our client was brought into the underlying lawsuit as a third-party defendant, with the construction and scaffolding businesses seeking common law indemnification and contribution and the property owner pursuing claims for common law and contractual indemnification, contribution and damages for breach of contract. 

Michael and Eian filed a motion seeking summary judgment regarding the third-party claims against the client by the construction company, the scaffolding business and the property owner, based on Section 11 of the Workers’ Compensation Law. The statute prohibits third-party indemnification claims against an employer unless the employee sustains a statutorily enumerated "grave injury," rendering the injured party totally and permanently disabled and incapable of obtaining a position of gainful employment in any capacity or a pre-existing written contract expressly agreeing to indemnification exists. At oral argument, Michael and Eian argued that the record lacked evidence that the plaintiff's alleged TBI qualifies as a grave injury under the statute or that the client agreed to indemnify the property owner. Finally, the Court granted Wilson Elser’s motion regarding the property owner's third-party claims for contractual indemnification and breach of contract, as no written contract existed in which the client agreed to indemnify the property owner.

Michael and Eian’s Motion for summary judgment was granted in its entirety. All claims against the client through multiple third-party lawsuits were dismissed as a matter of law following a last demand of $2.5 million.
 

Sergio Casiano (Partner-Miami, FL) prevailed in the United States District Court, Middle District of Florida, in a case involving an ERISA claim against Wilson Elser’s client, a global signaling and mobility company. The plaintiff is a retired employee of our client’s company seeking an employer contribution to a 401(k) plan. The matter was removed to federal court, where Sergio successfully argued that under ERISA laws, the client has no obligation to contribute to the 401(k) plan. The plaintiff's counsel abandoned the claim and filed a stipulation of dismissal. Accordingly, the case was closed with no costs incurred by Wilson Elser’s employer client.

Roy W. Bjorlin (Of Counsel-Boston, MA) prevailed on a motion for summary judgment in Suffolk County Superior Court in an employment action brought against Wilson Elser’s client, a board member of a Boston-based start-up company. The plaintiff, a former executive with the start-up, alleged violations of the Massachusetts Wage Act by the company, its CEO and the client, and sought to hold the client individually liable for the alleged violations. Following oral argument, the court granted Roy’s motion for summary judgment, concurring with his argument that there was insufficient evidence to prove the client acted as an agent of the company or assumed and accepted significant responsibilities regarding finances or payroll. In its 13-page decision, the court further determined that the client’s role did not satisfy the requirements to hold a non-officer of a company individually liable for a Wage Act violation, as outlined in a 2017 Massachusetts Supreme Judicial Court decision.

Joshua Bachrach (Partner-Philadelphia, PA) obtained dismissal of a complaint against an ERISA client in the Western District of Oklahoma. After her disability benefits were briefly terminated, the plaintiff filed a lawsuit seeking reimbursement of attorney’s fees. She also claimed that the client wrongly denied her request for hardship relief. Based on the wording in the ERISA statute – which refers to “fees and costs of action” – the court agreed that attorney’s fees are limited to work performed during litigation. Because the requested fees predated the lawsuit, there was no viable fee claim. Turning to the hardship claim, the plan provides for a reduction in disability benefits based on social security benefits a claimant receives or is eligible to receive. The client previously waived the estimated offset due to hardship when the plaintiff was still waiting for approval of her social security claim. She alleged in the complaint that the hardship relief should have continued after those benefits were actually awarded to her. The court disagreed. The dismissal order recognized that even when estimated benefits are waived, once there is an actual award, disability benefits are recalculated and any overpayment must be refunded, as was done with the plaintiff’s claim. As such, there was no viable claim because the requested relief would be contrary to the plan requirements. Although leave to amend is typically granted when a complaint is dismissed, the court concluded that any amendment or new claim would be futile. Therefore, the dismissal was with prejudice.

Matt Rowan (Of Counsel-Dallas, TX) and Morgan Wood (Associate-Dallas, TX) successfully defended their client, a utility line services repair company, in a lawsuit brought by a former employee for tortious interference with a contract and declaratory judgment after the employee went to work with a direct competitor in violation of the covenant not to compete. After a three-day bench trial, the court found that the covenant not to compete and nonsolicitation agreement was valid and enforceable against the former employee, that the employee had breached the agreement by going to work immediately with a direct competitor and that the subsequent firing of the plaintiff by the competitor was not due to interference by our client. The court ordered that the plaintiff take nothing from the suit and the covenant not to compete was valid and enforceable under Texas law.

Rebecca Young (Partner-Birmingham, AL) recently won a second summary judgment on behalf of a housing authority client accused of wrongfully terminating the employment of its former executive director in retaliation for making a whistleblower complaint to the U.S. Department of Housing and Urban Development and the city’s mayor. The matter was highly publicized and brought severe criticism against the client, which was ultimately redeemed through judgments in its favor. Rebecca first obtained summary judgment on the federal whistleblower claim pending in the U.S. District Court based on jurisdictional arguments regarding failure to exhaust specific administrative remedies. Following the disposition of the federal claim on the jurisdictional grounds, the federal court remanded the related state claim of wrongful termination. Rebecca then filed another motion for summary judgment, arguing that the plaintiff could not satisfy her burden under the McDonnel Douglas burden-shifting framework adopted by the state courts from the Eighth Circuit. The state court agreed and granted summary judgment. 

Rebecca Young (Partner-Birmingham, AL) won an appeal to the U.S. Court of Appeals, Eleventh Circuit on behalf one of the nation’s largest commercial real estate and financial organizations. The Court affirmed the district court’s order dismissing all claims brought against the Wilson Elser client, including Fair Housing Act violations, breach of contract, fraud, harassment, retaliatory eviction, bad faith and malicious prosecution. In addition to winning at the district court level, Rebecca previously obtained favorable determinations for the real estate group in response to a 2020 HUD complaint and 2021 HUD complaint, both brought by the appellant plaintiff. The plaintiff’s lease was not renewed after the 2020 and 2021 HUD complaints, which led to new claims of retaliation. In arguing for dismissal and in seeking affirmance on appeal, Rebecca pointed out that the complaint and subsequent amendments were “shotgun” pleadings that warranted dismissal under Eleventh Circuit precedent. The Eleventh Circuit agreed.

Bruno W. Katz (Partner-San Diego, CA) and John A. Guarino (Of Counsel-San Diego, CA) secured a defense verdict in the San Diego Superior Court for Wilson Elser’s clients, a luxury health spa and the facility’s executive chef. The plaintiff was an employee at the client’s spa, hired to work as the sous chef in April 2019, and reporting to the executive chef. The plaintiff commenced work in May 2019 and alleges that during her employment at the spa, she was harassed by our chef-client and another employee. The plaintiff alleges that she complained to spa management in July concerning the co-worker’s racially insensitive comments and again in late August 2019 regarding the chef’s alleged comment about her being “a feisty Latina.” Her complaint as to the chef was first reported to human resources after she received a poor performance evaluation. In September 2019,  our clients terminated the plaintiff’s employment for business-related reasons, including her ongoing poor performance in her sous chef role and an inappropriate response and comments to subordinate employees after receiving the poor performance evaluation. The plaintiff sued, alleging harassment based on race and gender, and retaliation for her complaints. The complaint alleges two counts of harassment, one against the spa and the other against the executive chef personally, plus two claims of retaliation: common law and whistleblower retaliation.

Following a five-day jury trial, Bruno and John secured a defense verdict in favor of Wilson Elser’s clients on all counts. The jury specifically found no severe and pervasive harassment by the spa or its chef in a 10–2 vote and no traditional retaliation or whistleblower retaliation in an 11–1 vote. Bruno and John’s successful defense strategies also resulted in the court’s adjudging Wilson Elser’s clients to be the prevailing parties in this matter.