Case update in the IBM Japan matter.

I know that a few of you follow me on the matter where I didn’t get paid by IBM Japan, and had by “sei sha’in” (regular employment) status disregarded.

You can always go look on PACER, if you know how, but the next key date is October 14. That’s the date the judge gave for the IBM parties (International Business Machines and IBM Japan) to either answer the complaint or offer up the objections that were “pre-moved” in July.

So, until 26 days from now, I have to wait.

You remember that, somewhere earlier, I had said, in general, that the role of the practicing lawyer these days is to produce elegant bullshit. This is what they do. There was plenty of bullshit back in July, but the only three pieces that the judge felt were not were, as I’ve said, these:

1) a personal jurisdiction issue with IBM Japan, which I clarified very well in the first amended complaint;

2) a tightening of the Title VII claim itself, which I really tightened; and

3) why or why not forum non conveniens (FNC) would apply, if at all. I did a few blogs about FNC over the summer, and am confident that the judge would see that defense as elegant bullshit, too.

The other side mentioned a case, Murray v. British Broadcasting Corp. They seemed to feel that this was on point, but the major flaw is that Mr. Murray was a British citizen–not an American. Mr. Murray, a Brit, was trying to sue a British company in New York, over the rights to a character called Mr. Blobby.

Here is the background:

As you can see, the only reason Mr. Murray was in New York is because his own country’s court system wouldn’t let him arrange his suing in a way that our own system does. (You do not have to post money, in most cases, to start litigation. You just have to pay the filing fee. And in cases of poverty, that’s waived.)

The whole trend of FNC cases in America has been where a foreign person comes in and wants to use our court system. Sometimes, they even invite a non-foreigner in as plaintiff to be the “anchor” for their case. They do this because, obviously, it makes it so much harder for a U.S. district judge to say “sorry, this is FNC” because where is the home court for the American plaintiff? America.

So saying that because Mr. Blobby couldn’t sue, Mr. Yankee can’t either, is an example of elegant bullshit.

A different tack, that I’m surprised they didn’t take, but you might guess why if you hear about the case, is Torrico v. International Business Machines (2002). In that case, Mr. Torrico was a non-American–that is, not an American citizen. He was sent by IBM in New York to Chile. Sometime after starting work in Chile, he was dismissed. Mr. Torrico wanted to benefit from all the U.S. and New York state anti-discrimination laws, but the IBM said, “no, this is not an American!” (You see why they would not bring a case like that up in the early defense.) The Southern District court said that because Torrico was temporarily sent out of the country from New York, the court could reason that the anti-discrimination provisions covered. The point the case only makes in tangent, is that if Mr. Torrico had been an American, then it wouldn’t have mattered where in the world he worked for IBM, or for how long—he would have been always and everywhere covered.

Instead, like I said, the court reasoned that there was a “center of gravity” as to where Mr. Torrico’s employment actually was. Had he been an American, the center could have been Chile, it could have been New York, it could have been Kazakhstan (if I spelled that right)–in any location, he would have been covered by the anti-discrimination statutes.

“Center of gravity” is a test that the non-American must rely on. The American already has the extraterritorial protection of the laws, as Congress or New York state defined them.

I know I am going to get more elegant bullshit come October 14. All just meant to delay summary judgment. It’s not like I can hardly wait, but, since 2008, I’ve just been asked to wait and wait–even when the response could have been submitted, in good order if not of good substance, fairly quickly.

(P.S. Mr. Blobby also went after an ad firm in New York called the Beanstalk Group, and there was not an FNC issue, because the defendant was located in New York–just like International Business Machines is. That case either settled or was dropped.)

Advertisements

3 comments

  1. Charlie · September 20, 2011

    You blew it by not speaking to a Japanese labor litigator before you quit your job and left Japan. [Hoofin’s note: I did not quit!] These gaijin seishaiin cases are pretty open and shut, but you need to get advice from an attorney before you quit. Experienced Japanese labor litigators are really cheap, and often agree to take most of their fee from the final settlement or judgment.

    It also helps to speak to a union There are independent unions you can join at any time, and they will advise you even if you aren’t a member. They request 10 percent of the settlement, and they work in tandem with the labor attorney. They meet with your company and sometimes will organize leaflet distribution at the company.

    The main point is that once a company knows that you know your rights (by having spoken to an attorney and the union), they cave in and settle. These things never go to trial.

    In Japan, as crazy as it sounds, a seishaiin has a right to keep his job, in the same or similar position, for the same or similar pay, and this is strictly interpreted by the courts. You can’t be fired unless your murder a workmate or something. Smaller companies try to bully employees to quit by taking away their duties and putting them in an office by themselves all day, prohibiting them from even reading. But a company like IBM wouldn’t risk the bad PR by doing that.

    The remedy for being wrongly fired is not financial. You actually get your job back. It’s crazy! This is something that a company does not want to happen under any circumstances, because once you have your job back you are triply insulated from being fired. You could just show up, read novels all day, and educate your workmates on their rights, show them your paycheck stubs, and destroy company morale. The company needs you gone, and they will pay anything within reason to accomplish that.

    (In cases where a factory or office is shut down and there is no nearby alternative to assign you to, courts do allow layoffs, with compensation.)

    Anyway, for anyone finding this page via Google, the key is to stay at your job, talk to a lawyer (a Japanese lawyer who cannot speak English) and to a union (there are even management unions), and at least pretend to your company that you want to keep your job, until they offer you enough get-lost money to satisfy you.

    • hoofin · September 20, 2011

      Charlie says:

      You blew it by not speaking to a Japanese labor litigator before you quit your job and left Japan. These gaijin seishaiin cases are pretty open and shut, but you need to get advice from an attorney before you quit. Experienced Japanese labor litigators are really cheap, and often agree to take most of their fee from the final settlement or judgment.

      Charlie, I did not quit. I negotiated sei sha’in status, but the company moved everyone out of the subsidiary, and then told me I was working under a term-limit contract. You are right, that sei sha’in cases are usually open-and-shut. But not when it’s a gaijin involved. Usually, in those cases, the companies start stonewalling and making a lot of noises about “mistakes and misunderstandings”.

      You should know, that mine is a U.S. Title VII [anti-discrimination] claim, that has, through joinder, a Japanese labor law claim. I am also asking for the position back—not just back pay and overtime that wasn’t paid. It’s a very strong summary judgment claim, since, as you point out, these kinds of situations are “open and shut”. This is why the company has been delaying for so long.

  2. Pingback: A comment from a know-it-all reader. | Hoofin to You!

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s