Thursday, August 19, 2010

Lawyer Accused of Sexual Harassment Wins $1.55M - COTW #3

Ordinarily, I wouldn’t pick a California trial court verdict as the Case of the Week, but this one is hard to pass up. It includes sex, texts, and videotape. It pits paralegal against attorney. And it has a surprise ending that would make M. Night Shyamalan proud.

Alison Moreno was a paralegal working for attorney Thomas Ostly. The two had some sort of sexual relationship, which at some point ended. Ostly claimed she was fired because she refused to continue the relationship, and filed a sexual harassment lawsuit. Let’s cut to the twist ending. The jury entered a $1.55 million verdict… against Ms. Moreno!

Why? Well, she decided to tell people Mr. Ostly was a sexual predator who would sometimes bill clients for time he spent shopping online (Correction 8/25/10: It was Mr. Ostly who alleged that Ms. Moreno took advantage of their relationship and that she would shop online while billing him. My apologies for the error.). If those nasty allegations are untrue, then that’s a little thing we call “defamation.” And defamation was just the counterclaim that led to Mr. Ostly’s big money verdict. (Update 8/25/10: The jury found her statements per se defamatory).

There were apparently reams of transcripts from texts and IMs, including a quote from Mr. Ostly that Ms. Moreno can’t record his IMs because, "I refuse to give you any evidence for the inevitable lawsuit." Another odd aspect of this trial was Mr. Ostly’s decision to conduct the videotaped depositions of Ms. Moreno himself. A bold move that some experts speculated would backfire.

Mr. Ostly was helped by attorney Shane Anderies who pitched this as a case of abusing the system: “The system is not to be used improperly," he said. "The system is to be used for legitimate claims." A $1.55M counter-verdict sure provides an incentive to use the system properly I guess!

Citation: Moreno v. Ostly, Alameda County Superior Court (August 2, 2010).

Case of the Week is a weekly feature. On Fridays (a little early this week) I will cover a particularly important, fun , or interesting employment law case. This is entry #3. All Case of the Weeks are tagged COTW.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.