IBM Japan update: seven weeks max to wait for reply brief. #ibmjapan @statedept

An update for those of you who follow me on this issue. The last one was here.

I had a little e-mail discussion with Chris a week or so ago, and as I have been saying, a lot is riding on these “12(b)(6)” motions, and whether the court is going to twist “plausibility” in such a way that I couldn’t go forward (only up).

The ninety-second explanation on this: In federal court, the defense is permitted to move for “failure to state a cause of action”—this is what we shorthand as 12(b)(6). Traditionally (since the 1950’s), this has meant that the plaintiff has no conceivable way to prevail (win) in the case based on the pleadings, if taken as true. This is called the Conley standard.

What happened in the last few years is that the U.S. Supreme Court added a plausibility requirement to the pleadings. Call this the Iqbal plausibility requirement. So it’s still the notice pleading of Conley, but with this second standard of plausibility included.

As I said in October, the new standard has been described thusly:

“[N]otice pleading supported by facially plausible factual allegations is all that is required — nothing more, nothing less.”

In re Morgan Stanley Info. Fund Secs. Litig., 592 F.3d 347, 358 (2d Cir. 2010).

The worry, of course, is that since there have been relatively few federal cases decided since 2009 in the employment law context—and none, by my count, applying Japanese labor standards law—there isn’t much precedent available to argue what plausibility is. I am confident that I have what the Second Circuit, which is the appeals court on top of the District Court, says is the standard. But the judge may say “no” and then I have a pickle. Do plaintiffs get the opportunity to amend, where the deficiency goes to plausibility? It was one thing, back in the day, when 12(b)(6) meant you weren’t really stating a cause of action. It’s another thing, when a 12(b)(6) is indicating that you don’t have enough facts, or the right facts, to meet the standard. Don’t you still get discovery?

It’s unfortunate when people have to be the guinea pig to find out how a new rule is going to be interpreted, and even more unfortunate when the guinea pig is me!

Now on to another thing: other friends have remarked about delay. These are matters from 2008, which were kicked down the road to late 2010—not by me of course. Here we are in late 2011, waiting for January 2012. I don’t know what to say. When I was involved in litigation in the 1990’s, the defense counsel was usually a lot more aggressive. Two cases I mentioned, which were both in Pennsylvania, were ones where I was amazed to be getting papers in response in very short order. It felt like an intimidation tactic, and probably was. I know that in the St. Clement’s Church matter, and its offshoots, part of the quick turnaround was to prevent me from getting answers or any statements from officials who might have helped. Of course, it’s known now that one key official was on her way to a felony sentence for embezzlement. And, that most of the judges in the Pennsylvania court system called on to decide Episcopal Church issues have a Roman Catholic bias, (because now we have 20 years worth of other cases to look at). But the defense counsel of those days may not have known the latter, and assuredly didn’t the former.

So why the delay?

One theory is that “I’ll give up and go away.” Well, that’s not likely. The damages are not simply breach of the continuing employment agreement (the one million yen a month since February 2009), it’s also the overtime I worked, which never got paid. This was substantial: about 440 hours, figuring to 3.5 million yen. How would you feel if you did substantial work and never got paid? My agreement with the company was for a set monthly compensation, and a set number of hours. There is no “white collar exemption” in Japan.

The other theory is that another case will be decided in the meantime, and one that would not be in my favor. Well, the only such kind of case I could foresee would be an extraterritorial Title VII one, and one that involved Japanese Labor Standards Law. I am sure that the expat blogosphere would have heard about it, if it’s out there. Is it? Alternatively, it could be a case involving New York jurisdiction over a New York affiliated company in Japan. Again, I think it’s something that would at least be on the docket somewhere, and probably in the news.

I can only conclude that “delay is the new aggression”. There is really nothing holding the attorney for the IBM parties from filing a reply, or waiving a reply, since they seemed so confident of the original memorandum that went with the motion. It’s a matter of “sei sha’in” regular employment, so if they were to win (meaning: no regular employment), there is no advantage to hurrying. If they were to lose, the backpay in damages did grow (now nearing 34 million yen); but these are coming from the reinstatement wages anyway. (They would have to give the job, or its equivalent, back.) So on the win side, it’s zero yen out, which can be decided at any future time; and on the lose side, it’s a stream of yen from February 2009 to normal retirement date.

I try not to worry about things I can’t control. I use the intervening time to dialogue with people who would have an interest in these topics, as, inevitably, every American working Japan-side for an American controlled company will. I get to contact some interesting people along the way. And, inevitably, the thing will be moving along again.

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