Over the past decade, I have represented thousands of employees and litigated hundreds of employment cases. One of the most common recurring themes is this: Corporate America loves to defame ex-employees. In the corporate America playbook, defamation has its chapter. During the years when I focused on defending employee non-compete and trade secret cases, I typically saw that strategy play out like this: Employee – let’s call him Frank – leaves Company X. Frank goes to a competitor or starts his own venture. Company X is afraid of ordinary competition. So Company X goes to the market and accuses Frank of [something bad]. Take your pick. I have seen several variations on this theme:
Frank stole money. Frank illegally accessed Company X’s computer systems and committed a federal crime. Frank disappeared and abandoned Company X and all the customers. Frank is having serious health issues and is essentially retiring. Frank is committing some other federal crime. Frank is under investigation by the FBI.
I have seen all of these. In many of these situations, there is a plausible defamation counterclaim. But the strength and value of that defamation claim depends on the specific circumstances. For one thing, the ex-employee is being sued and probably has at least some exposure on the underlying claims. We won a lot of non-compete and trade secret cases. But we also lost some. That’s the nature of the beast. So in this exact context (defending a non-compete / trade secret claim while countersuing for defamation), you have to account for some exposure. It’s not pure offense: You’re still defending something. After recognizing that, then you get into all of the standard considerations: The exact defamatory statement, whether it was per se, proof of the statement, strength / credibility of witnesses, jury pool, etc.
I have written about defending non-compete / trade secret cases and pursuing defamation counterclaims. But today’s discussion is different. This time, I am talking about running defamation claims in concert with, e.g., discrimination claims. Now, I am going to be blunt and piss a lot of people off: Over the past decade, I defended 150+ non-compete cases in a pro-non-compete state (Florida). I won far more than I lost. I have some epic victories out there and some phenomenal written decisions (in Florida federal courts, the United States Court of Appeals for the Eleventh Circuit and the Florida District Courts of Appeal). But I am basically done with that ballgame. Why? Because: I did what I can do. I made a dent in the system. Anything beyond that hinges on judges correctly applying the law. And you can only inflict so much financial pain on corporate America when you are defending a non-compete / trade secret case — even with solid counterclaims. Because, even then, you have to hedge and there is real risk.
But when you are the plaintiff and already pursuing a traditional employment claim (e.g., discrimination), that’s a different ballgame.
Running Defamation Claims in Discrimination Cases
- These are easy cases to litigate / try when compared to what I’ve been doing for the past decade. Emergency injunction hearings? Nope. Risk of the client’s new business being shut down? Nope. 100,000+ documents in discovery? Nope. Need to collect 16 email accounts and cell phones on my side of the case? Nope. It’s literally a limited universe on the discrimination piece and 1 or 2 statements on the defamation piece. To a firm like ours, this is a cake walk.
- On virtually any discrimination case, you can get into federal court under the relevant federal statute (e.g., Title VII, ADEA, etc). Some plaintiffs’ lawyers don’t like to be in federal court. I do. I strongly prefer federal court, federal judges, the federal rules, etc. Having seen a massive corporate defendant beg for and obtain multiple trial continuances in Florida state court, I’m taking federal court any day.
- Supplemental jurisdiction. I have had some companies and corporate lawyers try to get clever and blow up supplemental federal jurisdiction by arguing that certain claims were not sufficiently related to the pending federal claims. That strategy doesn’t work here because there is clear overlap between the question of front pay and the question of defamation damages. I know: Pretty cool, huh?
- Our firm will only ever pursue these if the defamation is per se. Meaning something like a false allegation of criminal conduct or a false allegation that injures the ex-employee in their trade / business. Why? Because once you have defamation per se, a jury gets to presume damages and award (basically) whatever dollar amount it wants. That can be millions.
- In this posture (e.g., Title VII (discrimination) + defamation per se), there are no damage caps. Yes, the damages are capped on the discrimination claim. But the damages on the defamation claim are not capped.
- Juries will punish a bad corporate actor via whatever claim allows them to inflict that punishment. This is a higher-level concept that most corporate defendants and corporate lawyers do not understand. In this context, I am not seeking punitive damages on the discrimination claim because I know those damages are capped. Instead, I am only seeking punitive damages on the defamation per se claim. Why? Because I know the jury will punish the defendant for everything via that one claim. Other than a jury trial waiver, there is no way for corporate America to prevent that. Take a discrimination case where the discrimination is truly egregious and very ugly. In these cases, parties are generally litigating about economic damages (i.e. lost wages, back pay / front pay). And in many states (like Florida), punitive damages are capped. But if an egregious/ugly discrimination case goes to a jury and there is a defamation per se claim with punitive damages? Even though the punitive damages jury instruction will focus solely on the defamation claim, the jury is going to punish the corporate defendant for EVERYTHING via that particular claim. The jury is going to punish the company for both the defamation and the discrimination via that particular claim — regardless of the fact that the jury instruction on punitive damages will be limited to just defamation.
- Attorneys’ fees. This framework allows you to pursue both discrimination and defamation per se claims with what is basically a 1-way fee hook.
- Unlike in the defensive posture addressed at the beginning of this post, there is no real downside risk.
Right now, we have about 10 of these cases in the pipeline. Most will settle, because (a) people aren’t particularly interested in trying me these days and (b) I only pursue good cases. But, invariably, somebody will hire Jackson Lewis and they will need to get their billable hours in. So they will insist on litigating one of these cases with massive exposure that could have / should have settled pre-suit. And then, we will be able to get proof of concept.
I’ll put it this way: I have turned a non-compete defense case into counterclaims and a 7-figure payout (going my client’s direction). What happens when I am not taking a defensive case however it comes in the door (warts and all)…. and instead picking and choosing my own purely offensive cases that check all of my boxes? That is what we are about to find out. Watch the space.
About Jonathan Pollard
Jonathan Pollard is an employment lawyer and the founder of the Fort Lauderdale, Florida law firm Pollard PLLC. Pollard and his colleagues have represented hundreds of employees in non-compete, trade secret, defamation, discrimination, and sexual assault cases. Pollard has appeared in or on the New York Times, Wall Street Journal, New York Post, NPR, PBS News Hour, The Guardian, Law 360, and more. Pollard has 80,000+ followers on LinkedIn, where he frequently posts about law, litigation, business, and life. The firm’s office can be reached at 954-332-2380.