Q: What are the risks to a company when making a public statement about ongoing employment litigation?
A: A federal judge in Washington, DC recently allowed a pair of married former law firm associates, suing the firm for sex discrimination, to add retaliation claims to their lawsuit for allegedly “false and malicious” statements the firm made about them in an August 2019 press release. See Savignac, et al v. Jones Day, et al, U.S. District Court for the District of Columbia, No. 19-cv-02443.
By way of background, plaintiffs Julia Sheketoff and Mark Savignac sued Jones Day over a parental leave policy they claimed illegally discriminates against men by offering biological mothers eight more weeks of leave than biological fathers. They also accused the firm of firing Savignac because he challenged the firm’s policy and underpaying Sheketoff because of her sex. After they filed the highly publicized lawsuit in August 2019, the firm circulated a press release about the lawsuit.
The law firm’s statement criticized both plaintiffs, characterizing them as poor attorneys and their claims as “self-indulgent” and ignorant of “both the law and biology.” According to the plaintiffs’ amended complaint, the firm’s statements were retaliatory and were included with the intent “to destroy Plaintiffs’ reputations; to provide current and prospective employers, other members of the legal profession, and prospective clients with permanently available false and misleading negative information to deter them from hiring, promoting, or doing business with” the plaintiffs.
The firm argued that it only prepared the statement after The New York Times contacted the firm, at the instigation of plaintiffs, and did not publish the statement on its website until after the complaint was filed and The New York Times ran its story. The firm alleged that it took these actions, not to retaliate against plaintiffs, but to defend the firm’s reputation in the face of the plaintiffs’ well-publicized attack on the firm. It argued that, “the “[p]ublic airing of the defendants’ legal and factual positions cannot, in the legally relevant sense,” constitute retaliation; rather, their response was “a natural and inevitable incident of litigation.”
Despite the firm’s argument, the plaintiffs convinced the court to let them add retaliation claims to their nearly two-year-old lawsuit. The court disagreed with the firm’s assertions that the statements it made about the two plaintiffs could not support a legal claim because they were “true and harmless,” finding that it was too early in the case to substantively decide the issue. The court also briefly addressed the litigation privilege doctrine, noting that the press release was an out-of-court statement, not a court filing, and also stating that “there is no ‘absolute litigation privilege.’” As a result, the court concluded that it “cannot, at this early stage of the proceeding, simply reject plaintiffs’ factual allegations that defendants’ broad dissemination of the press statement has caused, and is likely to continue to cause, significant damage to their professional reputations, above and beyond the filings and arguments made in this case.”
What does this mean for companies involved in ongoing employment litigation that want to issue a public statement? Proceed cautiously. Although the plaintiffs in the above-referenced lawsuit may not ultimately succeed with their newly added retaliation claims, the court recognized that “some actions taken in the course of litigation could conceivably constitute retaliation.” Therefore, employers should consider not only the specific words used in a press release about pending litigation, but also whether it is worth the risk to issue a statement at all.
If a company believes it must issue a statement, it should be brief and tactful. To the extent that it refers specifically to the involved employee(s), it should include only factual information and nothing that could be construed as defamatory. Counsel representing the company in the ongoing litigation should be notified and consulted before publicizing any statements about the pending litigation.
We will continue to monitor the Savignac case as the litigation proceeds and will provide additional updates as appropriate.