#IBMJapan litigation update: not much going on.

I haven’t done one of these for a while, so to let those who have been following my case know, we are still in discovery for evidence showing that IBM Japan is subject to the “doing business in New York” rule, per NY Civil Practice Law & Rules, Rule 301. The statute is quite abstract. The actual rule has been developed in case law over the past 95 years, in both the New York State and federal New York-based districts.

I was up in White Plains early last month, and we’ve had a teleconference in the meantime. I am getting some things, but not everything I want.

If you read between lines several posts back, you realized that I had discovered that IBM in New York does, quite frequently, station executives in Japan, and has been doing this, more or less, since the 1920s Mizushina Ko, for example, a Japanese national sent from New York, became the first head of IBM Japan, but had been an agent for IBM sales before that.

New York jurisdiction is its own piece in the litigation. It has nothing to do with the merits of the case, whether I was wrongly denied continued employment under the 1947 Labor Standards Law.

Litigation takes years. The law firm that advised IBM appears to have counseled a delay with the EEO, in 2008-2009 (yes, it’s been that long). And now, the normal federal process takes longer than it used to, because the Republicans in the US Senate blocked a lot of President Obama’s judicial nominees in his first term. So most all court districts in the federal system have a backlog.

Sometimes you win, sometimes you lose. If I lose at the district level, I have an appeal of right to the U.S. Court of Appeals for the Second Circuit, which is considered to take a very liberal interpretation of New York jurisdiction. This would be a review de novo (that is, as if all the facts are being interpreted newly, as if the lower court had not ruled). Similarly, if I lost on Japanese labor law—since it is foreign law—the review would be de novo.

There is, additionally, a tort claim against Kuniya Tsubota, who was IBM Japan HR head in Tokyo, and now who works in New York. We have not done much with this in the court, because of these other issues.

Folks who have been wondering, “isn’t this done yet?” Well, the answer is no. “Did this end?” The answer is also no.


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