Wednesday, February 15, 2012

Check, Please! A good bartender won't libel you.

The February 13, 2012 Orange County Weekly blog reported the story of a federal court settlement favoring a restaurant patron discriminated against because of his race. I came across the story after it was picked up by the New York Daily News, and MSNBC.

The Orange County site, and the New York Daily News have the most complete fact recitation. In short, this poor guy did nothing but show up, order food, and pay his bill on frequent visits to the same establishment. Employees took to annotating his bar tab and food bills with racially charged epithets, names and descriptions. One of the sites even includes the copy of one offensive receipt.

Take a moment and breeze through the complaint in this case, captioned as Mark McHenry v CDM Restaurant, Inc., d/b/a Landmark Steakhouse, in the United States District Court, Central District of California, #CV11-02636 JHN.

The case was settled on February 2, 2012, one month before trial, after the Plaintiff's lawyers uncovered over a dozen other instances of such discriminatory behavior. This was after attempts by the Defendants to bar discovery into approximately 167,000 other receipts for evidence of widespread discriminatory behavior. Magistrate Judge Victor B. Kenton permitted the discovery.

This case resonates with me because of a case we recently resolved in favor of a similarly situated person.

Our client was the butt of e-mailed jokes circulated behind his back in the workplace. The e-mails consisted of pornographic images with the client's name, and the name of his wife, superimposed on the images. One of the images made reference to his wife's disability.

Like Mr. McHenry, our Maryland plaintiff was the object of "libel per se." This is a form of defamation, where something awful is said about you which changes how others percieve you, in a negative way. Where the conduct is so horrible that reasonable minds cannot differ on it's defamatory intent and effect, the plaintiff can recover even where there is not evidence that the horrible conduct caused medical damage (such as a need for counseling, or inabililty to perform at work).

And like Mr. McHenry, our case settled when we pushed the employer for discovery into all e-mail files circulated throughout the company which could have contained similar libelous material.

The immediate benefit of these cases is obvious: the injured persons get money as compensation for their shoddy treatment.  The longer term benefit is that the defendants will change their behavior. In my case, the board meeting where the lawsuit and offending employees were discussed was described to me as "the first five minutes of Saving Private Ryan."  I believe it. And they deserved it!

So, be vigilant, be fair, and show some respect to your fellow man. If not, me or some other member of the bar may just sit across the table someday, at your deposition!

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