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Court Dismisses EEOC Lawsuit for Lack of Jurisdiction

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On Sept. 22, 2014, in EEOC v. Vicksburg Healthcare LLC, et al., Judge Keith Starrett of the U.S. District Court for the Southern District of Mississippi granted defendant’s motion to dismiss an EEOC lawsuit for lack of personal jurisdiction and insufficient service of process. The EEOC had filed a disability discrimination claim on behalf of a nurse who worked at a hospital owned by a subsidiary of the defendant. The court held that the EEOC, which sued a subsidiary hospital in Mississippi and its Tennessee-based parent corporation, did not put forth prima facie evidence of the necessary factors to satisfy personal jurisdiction requirements for the parent corporation in Mississippi.

While this ruling is favorable for non-Mississippi parent corporations operating subsidiaries in Mississippi, it has larger significance for employers. It shows that nationwide jurisdiction is not a given when the EEOC sues. Additionally, the ruling provides the framework for how to prevent liability by avoiding personal jurisdiction.

Case Background

The EEOC filed an action on behalf of Beatrice Chambers alleging disability discrimination under Title I of the Americans with Disabilities Act of 1990. The complaint named Community Health Systems, Inc. (CHSI) and Vicksburg Healthcare, LLC (VHL) as Defendants, alleging that both CHSI and VHL have been continuously doing business as River Region Medical Center (River Region) in Vicksburg, Mississippi.

The EEOC alleged that the defendants terminated Chambers–who had worked as a nurse at River Region for about 36 years–because of her unspecified disability, and additionally failed to provide her with reasonable accommodations in violation of the ADA. VHL was a subsidiary of CHSI, which was incorporated in Delaware and had its principal place of business in Tennessee. While VHL admitted doing business as River Region and admitted employing Chambers, CHSI denied doing business as River Region and denied employing Chambers. Further, in its motion to dismiss, CHSI asserted the affirmative defenses of lack of personal jurisdiction, insufficient process, and insufficient service of process.            

The Court’s Decision

In granting CHSI’s motion to dismiss, the court held that the issue of personal jurisdiction was controlling. The EEOC has the burden of establishing a prima facie case for personal jurisdiction. The court noted that a non-resident defendant is amenable to being sued in Mississippi if: (1) Mississippi’s long-arm statute confers jurisdiction over the defendant; and (2) the exercise of personal jurisdiction comports with the requirements of federal due process. The Mississippi long arm statute consists of three prongs, including: the contract prong; the tort prong; and the doing-business prong. It was undisputed that the “doing-business” prong was case dispositive.

CHSI submitted an affidavit from its Senior Vice President and Chief Litigation Counsel to the effect that it did not conduct business in Mississippi and that it lacked sufficient minimum contacts to be hauled into court in Mississippi.

The affidavit confirmed that CHSI is a holding company with no employees; CHSI indirectly owned subsidiaries including VHL; CHSI neither operated nor controlled the day-to-day operations of River Region; CHSI and River Region maintained separate banking records and did not co-mingle funds; CHSI did not employ nor have control over any River Region staff; CHSI never made any employment decisions regarding Chambers; CHSI and River Region observed corporate formalities (including no overlap between the Board of Trustees of River Region and the board of directors of CHSI; the respective boards of River Region and CHSI each convened separate meetings, (the boards maintained separate minutes and records); and CHSI is not qualified to do business in Mississippi–owns no property there, has no offices there, does not market there, and does not pay taxes there.

Following well-established precedent, the court found this aggregation of factors to be dispositive. It held that the EEOC lacked personal jurisdiction to sue CHSI in Mississippi.

The court rejected the EEOC’s three arguments in opposition of dismissal. First, the EEOC argued that the 10-K form submitted by CHSI to the SEC demonstrated CHSI’s intent to do business in Mississippi as it often used language such as “we” when referring to the hospital.  The court rejected this argument, noting that the 10-K form also contained a provision saying the hospitals are expressly owned and operated by the subsidiaries. Next, the EEOC mistakenly speculated that the River Region employee handbook contained references to CHSI. The court cited an affidavit from CHSI’s litigation counsel clarifying that the entity referred to in the handbook was a different indirect subsidiary, and not the parent corporation. Finally, the EEOC erroneously relied on another case involving CHSI – Bass v. Community Health Systems, Inc., Case No. 2:00cv193 (N.D. Miss.). The court noted that no facts from that case illustrated that CHSI should be amenable to personal jurisdiction.

Implications for Employers

 When out-of-state parent corporations conduct business in Mississippi through subsidiaries, it is imperative that they observe corporate formalities to clearly maintain the parent-subsidiary relationship. Further, in documents such as 10-K forms and employee handbooks, employers must explicitly indicate that subsidiaries, and not the parent, own and operate local entities. If parent corporations follow the teachings of EEOC v. Vicksburg Healthcare, LLC, et al., they can avoid unwittingly submitting to personal jurisdiction in Mississippi courts while their subsidiaries do business there.

This blog was previously posted on the Seyfarth Shaw website.

Controlling Employee Crime

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Employee theft costs businesses billions of dollars annually and it is on the rise, the U.S. Chamber of Commerce reports. Strategies for controlling these thefts include pre-employment screening, installing procedures to make theft more difficult, improving employee job satisfaction and maintaining a policy of apprehension and prosecution, according to The Hanover Insurance Group, Inc.

“Business owners spend a significant amount of time and resource protecting their business from a variety of risks, whether it’s liability for their products or services or severe weather,” Helen R.

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Savaiano, president of management liability at The Hanover said in a statement.

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“But, what can sometimes be overlooked are the risks presented by unscrupulous employees and unfortunately those types of losses happen more often than business owners think.

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”

In support of Crime Prevention Month, the company offers insights into the most common crime schemes and steps business owners can take to help prevent these schemes within their own companies.

What business owners can do:

Organizations should make sure there is clear accountability for every position and that no position has broad enough power to authorize payments without another individual’s consent. Companies also need to establish a system of checks and balances and set up an anonymous tip line to encourage reporting of any suspicious activities or business practices, The Hanover said in a report.

Reputational Risk in Their Own Words

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Many risk managers are struggling to get their arms around reputation risk. One challenge is that risk, a threat to valued asset or desired outcome, is hard to discuss in modern terms without statistics. Statistics, on the other hand, can be mind-numbing.

First, the accountancies. Eisner & Amper reports that reputation risk has been the number one board concern for each of the past four years. Deloitte concurs on the ranking but emphasizes the strategic nature of reputation risk. E&Y finds reputation risk in international tax matters; PwC finds reputation risk in bribery, corruption and money laundering. Oliver Wyman, a human resource and strategy consultancy, reports that reputation risk is a rising C-suite imperative ranking fourth this year (and third among risk professionals). Reputation risk was fourth in Aon’s 2013 survey. Willis shared data showing that 95% of major companies experienced at least one major reputation event in the past 20 years.

Ace in 2013 reported that 81% of companies told the insurer that reputation was their most important asset. Allianz’s 2014 global survey ranked the risk sixth of the top 10. Rounding out the professions, the 2014 study written by the Economist Intelligence Unit and published by the law firm, Clifford Chance, reported that 74% of U.K. board members see reputation damage as the most worrying consequence of an incident or scandal, ranking it as more serious than the potential direct financial costs, loss of business contracts and even impact on share price.

Anecdotes provide context that can personalize statistics. They can help transform a cerebral conversation about reputation risk to an action plan for managing enterprise reputation risk, protecting long-term enterprise value, and protecting the personal reputations of a company’s leadership.

This week’s anecdotes are exemplary. Goldman Sachs issued a company-wide directive banning its investment bankers from trading individual stocks for their own accounts. The Financial Times reported that “…Goldman told employees it was stopping bankers buying and shorting individual stocks and bonds to ‘help mitigate potential conflicts between firm personnel and clients . . . while helping the firm better manage reputational risk.’”

Across the pond after settling with U.S. and U.K. regulators, Lloyd’s Banking Group dismissed eight employees and clawed back bonuses for the rigging of the London interbank offered rate and related benchmarks. “Significant reputational damage and financial cost to the group are fully and fairly reflected in the options considered in relation to other staff bonus payments,” is how Chairman Norman Blackwell explained the personnel actions, according to Bloomberg.

The Daily Mail finds worrisome the loss of market share from 30.2% to 28.8% for Tesco, which currently reports annual sales of £65 billion ($105 billion). But given that the losses may have been intentionally contrived by senior management is mind boggling. “Most disturbingly of all is the reputational damage, which could linger for years.”

In contrast, Nishit Madlani, an analyst at S&P, is finding encouraging signs at General Motors. “The company’s performance over recent months has shown that recalls haven’t impacted sales. Reputational damage did not transpire, for the most part,” Bloomberg reported.

The statistics affirm reputation is top of mind. To make reputation risk actionable for a risk manager means understanding from the anecdotes that it is a going-forward risk affecting all stakeholder behaviors. Reputation damage will impact sales, credit ratings, regulatory scrutiny and executive compensation. Managing risk to reputation requires an enterprise-level strategic solution that, were it to think about it, senior management would demand today.

How Not to Settle a Class Action

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Settling a workplace class action is far more complicated than resolving other types of litigation. Yet, the fundamental building blocks of settling a case—an offer, acceptance of precise terms, and substantiation of the agreement—are equally as important in resolving a simple as well as a complex piece of litigation.

On Sept. 23, Judge Amy St. Eve of the U.S. District Court for the Northern District of Illinois in Craftwood Lumber Co. v. Interline Brands, Inc., drove home this point. The court held that, despite creating a “term sheet” outlining certain terms of a purported class action settlement, the parties had not reached an enforceable settlement.

This ruling illustrates that although parties may be bound to a class settlement prior to the creation of the final agreement, which is what occurred in the Tenth Circuit decision of Miller v. Basic Research, LLC, covered here, that in order to be bound, the parties must have at least reached an agreement to the materials terms of the contract and exhibit the intent to be bound.

Although it is not an employment-related case, Judge St. Eve’s ruling in Craftwood Lumber ought to be required reading for any employer entering into settlement negotiations relative to a class action.

Background

Plaintiff, Craftwood Lumber, brought a putative class action alleging that the defendant, Interline Brands, Inc., violated the Telephone Consumer Protective Act of 1999, by sending at least 1,500 advertisements in at least 735,000 facsimile transmissions, some of which were received by the plaintiff. The parties attempted to settle the case through mediation. At the end of the one-day session, the parties and counsel hastily signed a one-page document titled “Term Sheet.”

In the following weeks the parties unsuccessfully attempted to negotiate a written settlement agreement. The defendant brought a motion to enforce the settlement, and in support, it provided the court with a copy of the Term Sheet, arguing that the parties had entered into a settlement agreement. The plaintiff’s counsel objected, asserting that there was no agreement and that it was a violation of the confidentiality agreement to produce the Term Sheet to the Court.

The Court’s Opinion

Judge St. Eve held that the Term Sheet failed to include several terms that were material to the class action settlement. The most significant omission was the amount per claim—what the defendant would pay any class member for each fax recipient or each fax transmission. Additionally, the Term Sheet lacked any release terms and settlement class definition. The court reasoned that the provisions upon which the defendant was basing its assertion that an agreement had been reached were insufficient to reasonably imply the missing terms. Judge St. Eve determined that she was unwilling to select those terms from the wide range of potential possibilities. Ultimately, the court held that in addition to lacking materials terms, it was unclear whether the parties intended to be bound by the Term Sheet. On this basis, the court held that the parties did not enter in to an enforceable settlement agreement.

Implications for Employers

This ruling illustrates what can go awry in terms of documenting an enforceable class action settlement. In order to secure an enforceable settlement agreement, the parties must reach an agreement on the material terms and evidence an intent to be bound. Normally, this situation is not a problem, given that the parties normally will strive to achieve these ends in the settlement agreement. This translates into investing significant time and effort to craft a precise Term Sheet; covering all of the key terms of the settlement (such as the class definition, the class pay-out distribution formula, and myriad other bells and whistles that make up a Rule 23 class-wide settlement); and not leaving the settlement/mediation session unless and until all of these issues are covered and both parties express their intent to be bound. Simple, but critical.

This column previously appeared on the Seyfarth Shaw website.