Marilyn Manson’s Ex-Assistant Wins Appeal, Can Sue for ‘Horrific’ Sexual Harassment and Assault 

By Nancy Dillon/ Rolling Stone

“This is a great victory for all survivors as it provides a clear path for issues of repressed memories,” Ashley Walters’ lawyer says.

THE FORMER ASSISTANT who claims Marilyn Manson sexually assaulted her, whipped her and threw her against a wall during a drug-induced rage won a critical appeal ruling Wednesday that revives her previously dismissed lawsuit against the shock rocker.

Ashley Walters initially sued Manson, whose legal name is Brian Warner, with claims of sexual assault, sexual harassment, and sex discrimination in May 2021. She argued that while the alleged abuse took place during a “horrific” year of employment that ended in 2011, the typical two-year statute of limitations didn’t apply because she had suppressed her memories until 2020. She said the “delayed discovery” rule, which postpones the starting clock for statutes of limitations in cases where victims bury painful memories, had extended her window to file. She further alleged Warner used threatening behavior to ensure her silence.

A trial court judge considered her argument but ultimately tossed her case in May 2022, ruling she “failed to plead facts to invoke the delayed discovery rule.” Walters appealed, and a tribunal with California’s Second Appellate District sided with her Wednesday, reversing the lower court ruling and sending the case back to the judge for trial.

“Walters’s allegations of delayed discovery were sufficient to withstand demurrer, and we reverse,” the judges wrote in their ruling. They noted that while Warner’s defense team argued her allegations were “too memorable and happened too many times for her to have remembered none of it,” the court wasn’t supposed to concern itself with her ability to prove her claims at this stage of her case, only that she asserted them properly.

“This is a great victory for all survivors as it provides a clear path for issues of repressed memories and delayed discovery in these types of cases. I think the court is very firm in articulating a very clear decision as to why survivors have repressed memories and why that should be relevant when they come forward later in life to bring those claims,” Walters’s lawyer, James Vagnini, tells Rolling Stone. He noted that Warner’s camp also was ordered to pay the appellate costs as well. “We think that sends a message,” he says. Warner’s lawyers did not immediately respond to a request for comment.

In court filings, Walters alleged Warner forced her hand into his underwear, whipped her, threw dishes at her, pushed her into a wall, broke down doors to get to her, charged at her and forced her to stay awake for 48 hours straight, one time requiring her to stand on a chair for 12 hours.

Warner, 54, has denied Walters’ allegations and similar claims of abuse from more than a dozen women. In September, he reached a private settlement with a Jane Doe accuser who alleged he brutally raped her in 2011. Doe further claimed Warner deprived her of food and sleep during their abusive dating relationship and that he threatened to “bash her head in” if she reported him. That deal followed after Warner reached a separate settlement with Game of Thrones star Esmé Bianco in January. Bianco had alleged Warner raped and battered her.

Former accuser Ashley Morgan Smithline let her lawsuit end in default in January and formally recanted her allegations against Warner. A second Jane Doe sued Warner in January for sexual assault.

Read the article from Rolling Stone here.

Worker Settles Overtime Suit Against Home Remodeler

By Caleb Drickey/Law360 · 2023-10-16 19:49:04 -0400 ·  Listen to article

A worker who accused a home remodeling firm of misclassifying him as an overtime-exempt, salaried employee asked a New York federal court Monday to sign off on an individual settlement to his wage action.

In a letter to U.S. District Judge Diane Gujarati, ex-PHRG Management LLC remodeling consultant Sean Wachter said that a proposed $11,500 settlement to individual age claims would make him whole for withheld back wages and was a fair resolution to disputed claims.

The total settlement equates to more than 100% of what the plaintiff could have recovered under the Fair Labor Standards Act and New York Labor Law, Wachter said, adding: “The proposed settlement agreement is both fair and reasonable.”

Under the terms of the deal, Wachter would receive approximately $6,500 after the payment of attorney fees and expenses. That sum, the worker said, outpaced the roughly $2,400 unpaid overtime wage bill he racked up during his tenure at the company and amounted to roughly 55% of his total potential damages figure.

That return was fair, Wachter said, in light of the risks of further litigation. The worker noted that his former employer maintained its belief that he had been properly classified as an overtime-exempt outside sales worker and contested the number of overtime hours he worked.

“The settlement alleviates plaintiff’s risk of a lower recovery or no recovery at all,” the worker said.

Wachter’s attorneys, meanwhile, would receive an above-benchmark 40% cut of the total settlement fund, plus roughly $230 in expenses, for a total of approximately $4,700. Although Wachter noted that the Eastern District of New York generally limits attorney awards to 33% of a worker’s return, he said that the Second Circuit dissuaded district courts from placing ceilings on fee awards in 2020’s Fisher v. SD Protection Inc. 

He also argued that the proposed fee sat below a nearly $9,500 lodestar figure and was thus reasonable on its face.

Wachter accused the company of violating the FLSA and NYLL in a proposed class and collective action filed in November 2022. In his complaint, he alleged that he should have received time-and-a-half overtime wages instead of a flat, $1,000-per-week salary to compensate him for his up-to-60-hour workweeks.

Representatives of the parties did not immediately respond to requests for comment Monday.

Wachter is represented by Alexander White of Valli Kane & Vagnini LLP.

PHRG is represented by Anthony Mingione of Blank Rome LLP.

The case is Wachter v. PHRG Management LLC, case number 2:22-cv-07155, in the U.S. District Court for the Eastern District of New York.

–Additional reporting by Isaac Monterose. Editing by Nick Petruncio.

See the article from Law360 here.

Q&A: Attorney Sara Wyn Kane on Tough Sexual Assault Cases and New York’s Lookback Window

By Sara Hammel/The Landing

As one of Delta Captain Andrea Ratfield’s attorneys, Sara Wyn Kane of Valli Kane & Vagnini LLP is familiar with the specific and unique way airlines operate when it comes to sexual assault and harassment cases.

Her bio highlights her vast experience and professional accolades and explains, “Sara has devoted over twenty (20) years of her legal career fighting for her clients’ Civil Rights and against all varieties of employment discrimination (race, gender, age, disability, national origin, sexual orientation, and religion), sexual harassment/hostile work environment claims, wage and hour disputes and qui tams/whistleblower claims.”

A big thank you to Sara for giving her time to answer my questions and help victims of assault (all emphasis mine):

Q: I’ve seen a bunch of cases in the New York papers in the past year, including some high-profile lawsuits, taking advantage of the lookback window that ends very soon. (For example, a woman just filed a lawsuit against Bill Cosby alleging he drugged and raped her in the 1970s; she’s also suing the organizations her lawyer says “not only provided a platform for Mr. Cosby to showcase his fame and fortune to lure in women, but then put their own profits over the safety of their female guests by turning a blind eye to Mr. Cosby’s alleged sexual assaults on women”).

A: We have received many calls from individuals looking to assert their rights under the statute. We currently represent a woman against a well-known radio personality/author. She was allegedly assaulted many many years ago and had been prohibited from bringing her claims due to the statute of limitations. She is relieved to have an avenue by which to attempt to pursue them now. 

Q: What are some of the challenges in finding evidence and making a case for assaults that could be in the distant past, such as gathering old police reports and talking to witnesses? Should these potential roadblocks deter anyone from seeking legal advice about their assaults?

A: Certainly you have identified some of the potential obstacles to pursing older cases. Often, however, when someone has been the victim of an assault, they may have discussed it with a friend, family member, counselor and/or written in a journal—some type of contemporaneous confirmation of what transpired. Also, if someone does have the strength and courage to come forward many years later, it is likely that what took place is ingrained in their memories.

These cases are generally difficult regardless of whether they are brought soon thereafter or years later, but that does not mean it is not worth the effort. If nothing else, we strongly believe that the likelihood of success should NEVER deter anyone from seeking legal advice. Learning what your rights are is only a benefit, never detrimental. Being armed with knowledge is empowering—even if you choose not to act on it, we always encourage people to reach out and learn what options you may or may not have and to garner a better understanding of your legal rights.

Read the full Q&A from The Landing here.

Female Delta Pilot Advances Sexual Harassment, Reprisal Claims

By Patrick Dorrian/ Bloomberg Law

Delta Air Lines Inc. must face a female pilot’s claims of workplace sexual harassment and that she was retaliated against for complaining about gender bias and harassment, including by being forced to undergo retreatment for alcohol abuse.

The ruling by the US District Court for the District of Minnesota rejected Delta’s contention that the retreatment requirement and other job actions cited by the pilot weren’t adverse for purposes of proving job retaliation, but instead were “beneficial opportunities” permitted by its collective bargaining agreement with her union. Binding case law “indicates otherwise,” the court said.

According to Andrea Ratfield, Delta’s adverse employment actions also included threatening her with termination and suspension, and manipulating her use of leave so it could demote her from captain to first officer. She started drinking to deal with trauma stemming from an incident in which she was raped while attending an aviation event in September 2017, which she reported to her supervisor, Ratfield says.

Ratfield says the sexual harassment she’s experienced in her Delta tenure includes being groped, her training manager asking her on a date, a supervisor calling her “princess,” and lewd hand gestures and comments. A supervisor also allegedly bragged to others that he had seen Ratfield’s breasts while she was breastfeeding, Judge Katherine Menendez said.

Those allegations sufficiently state a hostile work environment claim under the Minnesota Human Rights Act, the judge said. The alleged acts of harassment may be “of the type brushed off by courts in different eras,” but they “comprise the sort of workplace behavior today that reasonable people” likely wouldn’t tolerate, Menendez said.

At least two of the incidents alleged by Ratfield occurred within the time period for suing, the court said.

Her retaliation claims are plausible in light of the alleged close timing—two weeks—between when she reported unfair and discriminatory treatment and when Delta refused to accept secondary test results she received that contradicted an allegedly false positive test that triggered the retreatment requirement, Menendez said.

Ratfield also alleges the retreatment facility was told that she rubbed people at Delta the wrong way and that supervisors further tried to sabotage her retreatment and effort to regain her license to fly by sharing her false positive test with the facility, the judge said.

The court dismissed Ratfield’s gender discrimination claims, including her allegations that Delta accepted secondary test results from male pilots under similar circumstances, but not from her.

Those claims require Ratfield to prove she was qualified to be a pilot and thus implicate terms of her union CBA, Menendez said. They therefore are preempted by the Railway Labor Act. RLA preemption didn’t apply to Ratfield’s retaliation claims because they don’t require proof that Ratfield was qualified for her job, the judge said.

Valli Kane & Vagnini LLP, Nichols Kaster PLLP, and Ellwanger Law LLLP represent Ratfield. Dorsey & Whitney LLP represents Delta.

Read the full article from Bloomberg Law here.

A Win for Delta Captain Andrea Ratfield!

By Sara Hammel

For all those following what’s by far the most-read story in The Landing’s short history, we have a victory to report.

Captain Ratfield will have her day in court. Delta Air Lines’ motion to dismiss was denied on two of three claims. As United States District Judge Katherine Menendez writes in part in her August 11, 2023 decision,

Delta’s motion is denied to the extent it seeks dismissal for failure to state a claim. Ms. Ratfield has plausibly pleaded a claim for retaliation under Title VII and the MHRA and sexual harassment under the MHRA.

Retired Delta Captain Karlene Petitt, who knows more about the airline’s legal strategies than almost anyone, covered that side of things on her blog yesterday:

Delta Air Lines utilizes the Railway Labor Act (RLA) to get away with illegal actions. The airline, under the management of CEO and Board of Directors, Ed Bastian, has a history of retaliation and sexual harassment. They also have a history of filing motions to remove these cases from the courtroom and pull them into the grievance process, of which they own both the arbitrator and the process. 

Congratulations to Capt. Ratfield. The cost of taking a stand is high, and can drain both your finances and your energy. But she’s standing firm, and I look forward to continuing to follow her court case.

Read more at The Landing here.

Employer Discrimination by Disparate Impact

Employer Discrimination by Disparate Impact by Robert J. Valli
{Read in 3:30 minutes}  In my last article, I discussed a pattern of discrimination in terms of the disparate impact on African Americans. But what does “disparate impact” mean?  In 1971 the Supreme Court adopted the position of the Equal Employment Opportunity Commission (“EEOC”). In Griggs v. Duke Power Co. (1971), the Court invalidated an employer’s requirement that applicants have a high school diploma and/or pass aptitude tests for hire and transfer into more desirable departments where prior to the enactment of Title VII the company had restricted blacks to labor positions. Specifically, the Court stated:

The Act proscribes not only overt discrimination, but also practices that are fair in form but discriminatory in operation. The touchstone is business necessity. If an employment practice which operates to exclude [blacks] cannot be shown to be related to job performance, the practice is prohibited . . . Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation.Continue reading

Valli Kane & Vagnini Attorneys Named to 2018 New York Super Lawyers List

We are pleased to announce that Sara Wyn Kane, a partner at Valli Kane & Vagnini LLP has been selected for the 2018 New York Metro Super Lawyers list. This is an exclusive list, recognizing no more than five percent of attorneys in the State of New York.

Super Lawyers, part of Thomson Reuters, is a research-driven, peer influenced rating service of lawyers who have attained a high degree of peer recognition and professional achievement. To ensure a credible and relevant annual list, attorneys are selected from more than 70 practice areas and all firm sizes.
The annual selections are made using a patented multi-phase process that includes:

  • Peer nominations;
  • Independent research by Super Lawyers;
  • Evaluations from a highly credentialed panel of attorneys.

The objective of Super Lawyers is to create a credible, comprehensive, and diverse listing of exceptional attorneys to be used as a resource for both referring attorneys and consumers seeking legal counsel.
The Super Lawyers lists are published nationwide in Super Lawyers Magazines and in leading city and regional magazines and newspapers. The local publishing schedule is:

  • New York Metro Super Lawyers Magazine – October 2018
  • New York Metro Super Lawyers supplement in The New York Times on Sunday October 21,2018
  • New York Metro Top Women Super Lawyers supplement in The New York Times on Sunday, March 24, 2019.

Please join us in congratulating Sara Wyn Kane on their selection. For more information go to SuperLawyers.com.

Supervisor sues Omni hotels, alleging sexual harassment and retaliation when she reported it

A former supervisor with Omni Hotels & Resorts has filed suit against the Dallas-based company, alleging sexual harassment and saying the company broke federal laws governing equal pay.Continue reading

Davita Rx Agrees to Pay $63.7 Million to Resolve False Claims Act Allegations

DALLAS – DaVita Rx LLC, a nationwide pharmacy that specializes in serving patients with severe kidney disease, agreed to pay a total of $63.7 million to resolve False Claims Act allegations relating to improper billing practices and unlawful financial inducements to federal healthcare program beneficiaries, the Justice Department announced today.  DaVita Rx is based in Coppell, Texas.
The settlement resolves allegations that DaVita Rx billed federal healthcare programs for prescription medications that were never shipped, that were shipped but subsequently returned, and that did not comply with requirements for documentation of proof of delivery, refill requests, or patient consent.  In addition, the settlement also resolves allegations that DaVita paid financial inducements to Federal healthcare program beneficiaries in violation of the Anti-Kickback Statute.  Specifically, DaVita Rx allegedly accepted manufacturer copayment discount cards in lieu of collecting copayments from Medicare beneficiaries, routinely wrote off unpaid beneficiary debt, and extended discounts to beneficiaries who paid for their medications by credit card.  These allegations relating to improper billing and unlawful financial inducements were the subject of self-disclosures by DaVita Rx and a subsequently filed whistleblower lawsuit.
“Providers should not make patient care decisions based upon improper financial incentives or encourage their patients to do the same,” said U.S. Attorney Erin Nealy Cox for the Northern District of Texas.  “The U.S. Attorney’s Office has and will continue to work cooperatively with providers that bring such issues to light to redress the losses the federal healthcare system has incurred.”
DaVita Rx has agreed to pay a total of $63.7 million to resolve the allegations in its self-disclosures and the whistleblower lawsuit.  DaVita Rx repaid approximately $22.2 million to federal healthcare programs following its self-disclosure and will pay an additional $38.3 million to the United States as part of the settlement agreement.  In addition, $3.2 million has been allocated to cover Medicaid program claims by states that elect to participate in the settlement.  The Medicaid program is jointly funded by the federal and state governments.
“Improper billing practices and unlawful financial inducements to health program beneficiaries can drive up our nation’s health care costs,” said Civil Division Acting Assistant Attorney General Chad Readler.  “The settlement announced today reflects not only our commitment to protect the integrity of the healthcare system, but also our willingness to work with providers who review their own practices and make appropriate self-disclosures.”
“The conduct being resolved in this matter presents serious program integrity concerns” said CJ Porter, Special Agent in Charge for the Office of Inspector General of the U.S. Department of Health and Human Services, “DaVita Rx’s cooperation in the investigation of this matter was necessary and appropriate to reach this resolution.”
The lawsuit resolved by the settlement was filed by two former DaVita Rx employees, Patsy Gallian and Monique Jones, under the qui tam, or whistleblower, provisions of the False Claims Act, which permit private parties to sue on behalf of the government when they discover evidence that defendants have submitted false claims for government funds and to receive a share of any recovery.  The case is captioned United States ex rel. Gallian v. DaVita Rx, LLC, No. 3:16-cv-0943-B (N.D. Tex.).  The relators will receive roughly $2.1 million from the federal recovery.
The settlement of this matter illustrates the government’s emphasis on combating health care fraud.  One of the most powerful tools in this effort is the False Claims Act.  Tips and complaints from all sources about potential fraud, waste, abuse, and mismanagement can be reported to the Department of Health and Human Services, at 800-HHS-TIPS (800-447-8477).  HHS also offers several programs for health care providers to self-report potential fraud.  More information on self-disclosure processes can be found on the HHS-OIG website.
The investigation was conducted by HHS-OIG, the Civil Division’s Commercial Litigation Branch and the U.S. Attorney’s Office for the Northern District of Texas.  The claims asserted by the government are allegations only and there has been no determination of liability.
Assistant U.S. Attorney Lisa-Beth C. Meletta handled this matter for the U.S. Attorney’s Office.
Read the original article from the Department of Justice