IBM Japan update: January 13 is the date.

For those following me on the IBM Japan matter, the next critical date is January 13, 2012, when a reply brief is due from the IBM parties. As everday readers remember, IBM USA and IBM Japan raised objections in October, which were promptly opposed. Now, they get to reply to the opposition, if they so choose.

I have been seeking summary judgment on the employment issue since early this year. This would be on the second of the following two:

1) IBM USA’s failure to abide by Title VII of the American Civil Rights Act of 1964, as amended in 1991;

2) Failure to honor regular employment status under the 1947 Japanese Labor Standards Act, as codified in the 2008 Labor Contract Act.

I have been delayed by such things as the lawyer not accepting service of process, by his having prior speaking engagements, and just generally objecting wherever possible.

We are at the stage where IBM, through Paul Hastings, has objected to just about everything: jurisdiction, service of process, whether Title VII applies, whether the federal judge can decide against IBM Japan, and so forth. When we appeared before the judge at the premotion conference in July, the focus was on two main concerns the judge had.

These were:

1) whether there was sufficient pleading in the original complaint to show a “plausible” Title VII discrimination claim. As I discussed with you at the time, this “plausibility” is a new area of federal law, coming from the 2009 Ashcroft v. Iqbal case;

2) whether there was sufficient pleading to conclude that IBM Japan is under the jurisdiction of New York State by virtue of its connections to its fully-owning parent corporation, International Business Machines Corporation, which is based in Westchester County, New York. I didn’t have enough in the original complaint to show the elements required under New York Civil Practice Rule 301.

Even though we had already tread this ground, the Paul Hastings attorney still raised numerous objections—I think there were 11 in total. I don’t know if it’s the judge’s practice to respond to all the ones raised, or only the ones that reasonably could be seen to have been issues in the July premotion conference.

I am also led to believe, based on an annual seminar that Paul Hastings and a few other of the big, big law firms hold, that raising 12(b)(6) (“failure to state a claim”) objections to employment discrimination cases is simply standard practice of late. I notice a shift in the focus of employment law conference topics just in the last couple years.

Here is one from early 2010:


Paul Hastings’ Allan Bloom, who happens to be the lead counsel for the other side, presented there.

In that seminar, the focus seems to have been on what to do when the client is beyond the early motion stages, i.e. when there actually is the possibility of a trial.

But the one this year—from this past July—seems to be focused on the kind of thing that is going on right now, with the IBM case.

In that one, Allan Bloom is discussing what to do after the 12(b)(6) motion. It seems to me, then, that 12(b)(6) is routinely raised on employment cases in the post-Iqbal court system.

So I suppose it should be no surprise that an amended complaint would be met with the same “failure to state a claim” objection(s) that the original papers met. What I still haven’t figured out, though, is why they always wait for the last day to respond to anything–even when the material is there early? The facts are what they are–they won’t change–and yet the firm made the EEO wait months and months (November 2008 to about September 2010). Then, every piece of the federal case proceeds with the same slow pace. If this is “Building a Smarter Planet”, I’m not sure where the technology is improving anything. It feels more like the 19th century.

So when something develops that impacts all you Japan-side expats who think your Title VII and/or Japan labor law rights are solid, I will definitely share it with you—as I have along the way.

[Update 12/27/11:

A side car in all this is the overtime work (3.5 million yen) that I wasn’t paid for, since I had to wait for the EEOC to conclude its initial inquiry into my administrative charge. This was the one where IBM delayed for close to two years, before they gave a response that strongly suggested that a “mistake” or “misunderstanding” was present—and therefore, no easy case to show discrimination. At which point, the EEOC decided to punt. It is a shame. On the one hand, by law, I am owed the backpay that would come from having a job denied. But the overtime is labor I have already given over.]

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