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“Tobacco Firms Sued Over Billboards: 40 Are Allegedly Too Close to Playgrounds, Schools in S.F.; State Not Enforcing Law,”

San Francisco Examiner
Thursday, March 26, 1999

By Scott Winokur
of the Examiner Staff

Tired of waiting for the state to enforce a new anti-smoking law, a San Francisco lawyer sued four tobacco companies Thursday, accusing them of violating a statute barring billboard ads within 1,000 feet of schools and playgrounds.

Forty allegedly illegal billboards were identified in the Mission District, South of Market and Bayview-Hunters Point by Janet Mangini, who sued on behalf of the general public under state laws against unfair and illegal business practices.

“An easy drive around San Francisco makes it apparent that there is widespread disobedience” of the state law that took effect Jan. 1, said Mangini’s suit, filed in San Francisco Superior Court.

The suit called for a court order barring the ads, a public information campaign in support of anti-smoking education in the classroom and the return of all revenues earned by tobacco companies as a result of the alleged illegal ads.

Named were: the Brown & Williamson Tobacco Corp. of Louisville, Ky. (Lucky Strike); R.J. Reynolds Tobacco of Winston-Salem, N.C. (Camel and Winston); Philip Morris of Richmond, VA (Marlboro); and Lorillard of Greensboro, N.C. (Newport).

“We haven’t seen anything and we don’t know what’s in it, so it’s difficult to comment,” Brown & Williamson spokesman Mark Smith said Thursday.

Spokesmen for the other tobacco companies did not return phone calls.

The suit did not name the state Department of Health Services, which is responsible for enforcing the law, or billboard companies that post and maintain the ads.

“Our concern is to get the billboards down, not to point blame at the state,” said attorney Alan Caplan of Bushnell & Caplan in San Francisco, which filed the suit on Mangini’s jointly with Milberg, Weiss, Bershad, Hynes & Lerach of San Diego.

“The state has a role in implementing the law,” Caplan said, “but that doesn’t excuse the tobacco companies from obeying it.”

If Mangini wins, he added, it would mean offending billboards throughout the state had to come down, not only those in the suit.

The Jan. 1 billboard ban, sponsored by Assemblywoman Carole Migden, D-S.F., set fines of $200 to $4,000 for violations, but the state health agency acknowledges doing nothing but plan for its implementation. Funds and personnel have not been added and the law has not been enforced.

“It’s outrageous,” Migden said, hailing Thursday’s lawsuit. “If they feel they need to remedy it with a private action, I understand the passion behind the effort.”

She noted, however, that she also has been concerned about footdragging in Sacramento.

“I asked my people to look into this to see if the machinery had moved quickly and it hadn’t, Migden said. “It’s often the case that we pass statutes that become effective Jan.1 and we’re not prepared to implement them.”

Mike Genest, the health agency’s deputy for prevention, said $148,000 has been earmarked to add one position to the department’s eight-member statewide anti-tobacco team, but the money won’t become available before July 1.

“They want a guy with a gun or a badge walking around the schools. Well, we don’t have field-level enforcement yet, but that doesn’t mean we’re not doing anything,” Genest said.

The health department has been in contact with the state’s eight major billboard companies, he said, and its attorneys have been focusing on legal issues that may arise once enforcement begins.

But Migden’s chief of staff, Dan Reeves, said he wasn’t satisfied with the state’s excuses and vowed: “Until I see billboards coming down, particularly in San Francisco, I’ll be on them on a daily basis.”

Lou Lillian, head of San Francisco operations for Outdoor Systems, which owns 19 of the 40 billboards identified in the suit, said his company has been moving on its own to “self-police” under the ban.

“We may drop the ball from time to time, but we’re trying to do it ourselves and wean ourselves from tobacco,” Lillian said.

“The Last Days of Joe Camel: How A Team of Lawyers Defeated Big Tobacco,”

California Lawyer
November 1998
By Nina Siegal

One late afternoon in December 1991 San Francisco sole practitioner Janet C. Mangini took a break from her work to read the newspaper. Scanning the pages, her eyes focused on an article about R.J. Reynolds Tobacco Company’s cigarette advertising.

The article quoted three studies published in the Journal of the American Medical Association (JAMA) that concluded Camel’s popularity with teen smokers increased 66-fold after Joe Camel came on the scene in 1988. Children as young as six recognized the cartoon character.

Mangini recalled seeing Joe Camel’s image riding motorcycles and playing pool with his female comrades, Josephine Camels. He hung out with other hip young camels-dressed suavely and lit dramatically in bars and clubs. Joe seemed to be always on the move, periodically dabbling in racing tournaments or jamming with a jazz band.

“It bothered me that little kids recognized Joe Camel the same way I recognized Mickey Mouse when I was a kid,” says Mangini.

The following weekend at a Christmas party she was discussing legal cases with Alan M. Caplan and Philip Neumark, lawyers with the five-attorney firm of Bushnell & Caplan LLP who rent out an office to her. Mangini mentioned she wanted to take on bigger issues. She had been practicing law for ten years, handling primarily family law and personal injury cases. “I said to them, ‘If we want to do something good, we should go after Joe Camel’.” Everyone was intrigued.

At a meeting a few days later the three lawyers discussed a possible cause of action. They were well aware that traditional personal injury suits hadn’t worked. They remembered a statute they had used to sue a company that manufactured baby bottles that allowed lead to leach into the liquid. Under California’s Business and Professions Code §17200 et seq, also known as the Unfair Business Practices Act (or Unfair Competition Act), any individual can act as a private attorney general for the state of California and file a suit against a company to halt a harmful or unfair business practice. This law also provides for attorneys fees. Mangini thought they had a chance at succeeding against R.J. Reynolds if they focused on the company’s business practices - in particular, their marketing strategy, which she believed directly targeted minors.

At the time, Mangini and the other lawyers did not know whether any of the marketing documents that were about to become part of a new wave of lawsuits that would finally break the lawsuit-proof tobacco industry.

While Mangini, Caplan, and Neumark were huddled in their offices trying to figure out what to do, other plaintiffs attorneys were doing the same. Forty years of tobacco litigation had led nowhere. Tobacco companies had asserted with impunity that health hazards related to smoking were unknown. Individual litigation against cigarette manufacturers for health problems ended disastrously. The tobacco companies had an ironclad defense: If a person chose to smoke, the tobacco companies could hardly be blamed for resulting illnesses. But around this time, plaintiffs lawyers began taking a different approach. Bushnell Caplan along with the firm of Milberg Weiss Bershad Hynes & Lerach had already begun examining whether the tobacco industry had hidden damaging evidence about the health hazards and addictive nature of their products. (Their research would eventually turn into a lawsuit filed in 1992, Cordova v Liggett Group, in San Diego County Superior Court. The suit would charge the tobacco companies with “manipulating nicotine to addict smokers and with conspiring not to develop or market safer cigarettes.”)

Before Cordova was filed, however, Mangini and others began fashioning a different attack, one that would take away the tobacco industry’s best defense because it didn’t require an injured plaintiff.

Since California has prohibited the sale of cigarettes to minors for almost a hundred years, Mangini figured it was probably unlawful for the cigarette company to sell their wares with minors in mind. Caplan and Neumark agreed. Mangini knew that it would take enormous resources to fund the legal fight that lay ahead, and she couldn’t afford to mount such an attack herself. Instead, she volunteered to be the plaintiff. She also wanted some involvement with the case and a particular result: the termination of the Camel campaign. The attorneys from Bushnell Caplan stepped in as lead counsel.

Caplan and Neumark tried to collect data on the effects of cigarette advertising on youth and to compile studies on the harmful health effects of both firsthand and secondhand smoke. They quickly discovered that the tobacco industry had done a good job in preventing its own studies of the product’s harmful effects from reaching the public. The attorneys shifted their focus to Joe Camel promotional advertising, such as caps, jackets, and mugs that could be “bought” with redeemed “Camel Cash.”

Sensing that they were in over their heads, Mangini and Caplan needed someone who knew how to take on big corporate power and influence. They enlisted Milberg Weiss, the most well-known firm for filing shareholder class actions.

Patrick J. Coughlin, a partner with that firm in San Diego, was interested. His father had died of lung cancer in 1985, and his mother had recently been diagnosed with emphysema; both had been lifelong smokers. His mother had suffered from a terrible cough, but she said she couldn’t give up the addiction. “My mom was saying, ‘I always knew that they were bad for me, but I didn’t know that I’d never be able to quit,’” remembers Coughlin. “I looked at the age which most people start smoking, and I realized that most of them can’t make those lifelong decisions at that age.” Coughlin was particularly concerned about his young nieces and nephews who were getting to the age where they pick up the habit.

As a securities litigation specialist, Coughlin brought to the team. He had expertise documentation in hard-to-reach places, and he had money behind him. He also thought there might be some crossover between Mangini and the pending Cordova case. Milberg Weiss ultimately invested more than $13 million in expenses and attorneys fees on the case, far beyond what the small San Francisco firm had in its coffers.

The work was divvied up: 8o percent went to Milberg Weiss and about 10 to 20 percent went to Bushnell, Caplan. But that didn’t mean the San Francisco team had a small workload. “That 10 percent is probably bigger than any case another firm of their size would have,” says Coughlin. Caplan and Neumark sorted through reams of documents and handled loads of paperwork. They also developed ever more complex strategies for overcoming obstacles set up by R.J. Reynolds. Mangini took a back seat. She wanted to be apprised of new developments, while maintaining distance from the case.

In a lawsuit filed in December 1991 in the Superior Court of San Francisco, Mangini v. R.J. Reynolds Tobacco Co., the plaintiffs argued that the Joe Camel material violated the Federal Cigarette Labeling and Advertising Act because the required warning labels were not printed on the promotional materials. They also argue that the companies were targeting minors.

The lawsuit was admittedly skimpy. Their claim that young people chose to smoke Camels because of the cartoon figure was based on circumstantial evidence, such as the JAMA article that originally infuriated Mangini and the studies by the California Department of Health about the health effects of smoking. But the plaintiffs didn’t have direct evidence that the company specifically created the Joe Camel campaign to attract young people to the brand. They certainly didn’t have any company documents stating that R.J. Reynolds was specifically targeting the youth market.

Caplan said he was sure he would find a lot more evidence to support the claim once they filed the suit and began discovery. They figured R.J. Reynolds wasn’t going to just hand over such damaging evidence. But they were prepared to fight. “After we began to do the research, we knew we would have to devote a significant amount of time to it,” says Caplan. The attorneys quickly got their first real glimpse that this was not going to be an easy case.

When the lawsuit landed on the desk of R.J. Reynolds lead counsel H. Joseph Escher, a partner at Howard, Rice, Nemerovski, Canady, Falk & Rabkin, he didn’t think much of it. He had handled unfair business practice cases in the past, but “usually, they’re about a real business practice and not challenges to advertising,” he says. “This seemed like a ‘softer’ kind of theory. The lawsuit didn’t say the company did something it didn’t do. It was about establishing a theory of what kinds of advertising are legal.”

From a legal perspective, Escher thought the complaint shouldn’t go anywhere. “Can you hold an advertiser liable because the advertising might encourage someone to break the law?” he asks. “Is there anyone who thinks that no advertisement for beer is appealing to 20-year-old men who can’t legally purchase beer? Does anyone think that an ad for a sports car speeding along the Bonneville Salt Flats might suggest to a future buyer of that vehicle that the car is capable of going over the speed limit, in violation of the law?”

Escher filed for summary judgment. He argued that because the Federal Cigarette Labeling and Advertising Act provides that the federal government regulates all tobacco advertising and promotions, any individual or state claim was preempted by federal law. The San Francisco trial court agreed. The plaintiffs appealed to the First District Court of Appeal. Associate justice Donald B. King of that court ruled that they could proceed under their theory-that R.J. Reynolds was targeting minors and encouraging kids and vendors to break the law. R.J. Reynolds appealed the decision to the California Supreme Court.

“I thought justice King’s decision was the most wonderfully well-reasoned opinion ‘ “ says Mangini. “Of course, we were concerned because you never know what is going to happen on appeal, but we were all fairly confident that we should have been able to pursue our claim, and we felt we would win.”

Following justice King’s decision, news of the suit spread across the country. Twenty-three state attorneys general, then-Surgeon General C. Everett Koop, the American Lung Association, the American Cancer Society, and the American Heart Association filed amicus briefs in support of Mangini’s claim.

Milberg Weiss partner Bill Lerach argued the case in front of the California Supreme Court, stating that R.J. Reynolds’ Joe Camel campaign constituted an unfair, unlawful, and fraudulent business practice because it targeted minors and induced minors and cigarette sellers to break the law. The team gathered evidence culled from widely circulated news accounts, surgeon general reports, studies from the Centers for Disease Control, tobacco industry trade journals, and samples of advertising in magazines popular with young people.

In a unanimous decision in 1994, the California Supreme Court affirmed the court of appeal decision, ruling that Mangini should be able to pursue her claims. It quoted the lower court in saying “the targeting of minors is oppressive and unscrupulous, in that it exploits minors by luring them into an unhealthy and potentially life-threatening addiction before they have achieved the maturity necessary to make an informed decision whether to take up smoking despite its health risks.”

The California Supreme Court decision made it clear to Escher that politics were going to get in the way of his client’s shot at a fair trial. “Emotionally, for me, what this case was about was trying to apply the rule of law impartially to a very unpopular client,” he says. The defense sought review by the U.S. Supreme Court, but the request was declined.

With the courtroom door finally open, the most important part of the case could begin. But the plaintiffs legal team wasn’t sure what documents the company had and where to start looking. Coughlin collected data on the effects of cigarette advertising on youth. This time, they were more successful because Milberg Weiss was further along in its discovery in Cordova. During that case they retrieved some early cigarette marketing documents, including information about ad campaigns going back to the early 1970s in France. Those documents seemed to indicate that the cigarette manufacturers did, in fact, specifically target youth.

The plaintiffs showed those documents to the judge, arguing that because this evidence existed, they should have the right to any other documents that were created in the 1970s. Escher countered that much of that material was irrelevant to the ad campaign. The plaintiffs argued that such data would help them establish the company’s history of targeting youth. The judge agreed.

Next, the two sides got stuck on the thorny issue of defining “youth.” The plaintiffs argued that R.J. Reynolds had intentionally changed the terminology in internal company documents in the 1970s to avoid references to minors. Instead, they referred to underage consumers as “young adult smokers,” or “first usual brand young adult smokers,” and sometimes simply “Marlboro smokers” since Marlboro had cornered the youth market. In 1996 and 1997 the mediating judge and court began ruling against the defense. The judge ordered the defense to turn over everything that came under any of those alternate headings.

Mangini, who had limited personal involvement with the harrowing discovery process, thought the defense’s arguments were simply dilatory tactics. “Papering to death is a well-established tradition among big firms,” says Mangini. “The rigor with which they fought and defended their actions was no surprise to any of us.”

After the judge forced R.J. Reynolds to open its files, the plaintiffs were deluged with paper. Mangini was excited. “We always thought that there wouldn’t be any smoking guns. But when I had a chance to review some of the documents, I was surprised with the clarity that these documents set out our case,” she says.

Ten attorneys from Milberg Weiss sifted through some 700 boxes of R.J. Reynolds documents sent directly to their San Diego offices, and other attorneys reviewed millions of pages elsewhere. Ultimately, the team reviewed more than 30 million pages of documents over nearly a 5-year period. Most of these internal documents had never been seen by anyone outside the company. Coughlin saw a 20-year practice of studying and targeting teenagers emerging from the mountain of paper. It began with loss of market share to Philip Morris Companies, Inc. Documents show that the company conducted tests in Canada and finally mounted a full-throttle campaign in. the United States. “Finding those documents was chilling,” he says. Though some of the memos, studies, and company notes were obviously helpful to the plaintiffs, others were more complicated and elusive.

“You didn’t just look at a document and say ‘WOW’” he adds. “You had to go over it a few times to understand what they were saying. You would read it a second and a third time and then say, ‘so that’s what they were doing.’”

In one document the vice president of marketing for R.J. Reynolds in 1974 told company executives of the importance of 14- to 24-year-old smokers, or the “young adult market.” According to the document, “They represent tomorrow’s cigarette business. As this 14-24 age group matures, they will account for a key share of the total cigarette volume-for at least the next 25 years.”

This document also stated that, “Both Philip Morris and Brown & Williamson [Tobacco Corp.], and particularly their fast growing major brands, Marlboro and Kool, have shown unusual strength among these younger smokers.... With strong young adult franchises and high cigarette brand loyalties, this suggests continued growth for Philip Morris and B&W as their smokers mature.”

A March 1982 confidential memorandum read by an R.J. Reynolds outside consultant outlined a search for “existing data pertaining to incidence and consumption among youth age 12-17.”

The New York-based advertising agency Young & Rubicam offered its Camel advertising overview, concluding that the “‘evolution’ of Joe continues to build the Brand’s vitality, increasing Camel’s momentum as reflected in both awareness and share-of-smoker data.”

A 1984 confidential report outlined the importance of attracting “presmokers” ages 12 to 24. “Younger adult smokers are the only source of replacement smokers,” an R.J. Reynolds market research analyst summarized in the appendix to her report. “Less than one-third of smokers (31%) start after age 18. Only 5% of smokers start after age 24.”

Joe Camel was tailor-made to attract that market. “In view of the need to reverse the preference for Marlboros among younger smokers, I wonder whether comic strip type copy might get a much higher readership among younger people in any other type of copy,” pondered an executive from R.J. Reynolds’s advertising agency in 1973.

Coughlin says the low point for him was learning about famous claim that cigarette companies spend millions of dollars a year on antismoking campaigns. There is no federal state law requiring tobacco companies to create such advertising, but R.J. Reynolds often pointed to expenditures on antismoking ads as evidence that they are stopping young people from trying their product.

In 1987 RJR McDonald, a Canadian subsidiary of R.J. Reynolds, commissioned a study called “Youth Target 1987,” which categorized 15- to 24-year-olds into seven distinct groups: big city independents, tomorrow’s leaders, transitional adults, quiet conformers, T.G.I.F. group, insecure moralists, and small town traditionalists. According to the study, members of the T.G.I.F. group were the “most prominent supporters of smoking,” while the “squeaky clean tomorrow’s leaders” tended to be “low consumers.” Many of the ads used in R.J. Reynolds antismoking campaigns feature images of so-called tomorrow’s leaders counseling the TG.I.F-ers not to pick up the habit. Coughlin’s experts explained that those campaigns were directed at a group they determined would smoke anyway. The images of goody-goodies telling other kids to “just say no” made most kids want to try it even more.

As far as Escher was concerned, these documents and data didn’t prove much, He argued that R.J. Reynolds had a right to advertise and that the First Amendment protects speech and image advertising, even if those who see the company’s billboards or magazine ads later decide to break the law. “When you get into the reality of the situation, the link between the Camel campaign and the smoker just isn’t there,” he says. “But because the tobacco companies are very unpopular, it’s hard for people to accept that they are entitled to the same protections as everybody else.”

In 1997 settlement talks began in a serious way. Milberg Weiss, Bushnell Caplan, and Mangini all agreed on basic ground rules for the negotiations. “There was no amount of money they would have offered to settle the case if they were not going to stop the campaign,” says Caplan.

According to Escher, however, the decision to end the Camel campaign had already been made by top R.J. Reynolds management. “It had been publicly announced by RJR Nabisco [Holding Corp.]’s [the parent company] president last June,” he says. Escher said the company decided to begin settlement talks because various states were already negotiating a national settlement with all the tobacco companies, and R.J. Reynolds hoped to make the Mangini case part of that arrangement. The focus, says Escher, was to “get some more of these controversial issues behind us.”

In July 1997 the company agreed to most of the terms and prepared to terminate the Joe Camel campaign. Because any magazine containing the cartoon character could cross state lines into California, the company was forced to drop Joe not only in the state but across the nation. The company also agreed to pay $10 million for antismoking campaigns throughout California. The plaintiffs also argued for, and won, the right to publicly disclose the information they had gleaned. The defendants fought this last requirement, but the plaintiffs said there would be no agreement if they didn’t get disclosure rights.

No arrangement has yet been made about payment of plaintiffs’ costs and attorneys fees. That matter will be arbitrated this December.

“If there is a lesson to be learned, it’s that you have to stick to your guns if you really feel strongly about your position,” says Mangini. “Financial gain was not our ultimate goal. As a result, it was easy not to be swayed by financial gain arguments and to stick to our guns and get what we wanted, which was the termination of the campaign.”

The settlement agreement also acknowledges the plaintiffs’ tenaciousness. “[T]he Mangini action, and the way that it was vigorously litigated, was an early, significant and unique driver of the overall legal and social controversy regarding underage smoking that led to the decision to phase out the Joe Camel Campaign,” wrote R.J. Reynolds officials in the settlement.

On January 15, 1998, Rep. Henry A. Waxman (D-Calif.) held a press conference in Washington, D.C., and released thousands of pages of previously secret documents. He said they were the first detailed revelations of “how the tobacco industry exploits our children.”

After finishing the press conference with Congressman Waxman, Mangini -and the rest of the legal team went to a restaurant to celebrate. They asked the bartender to turn on the television set. They heard President Clinton say that he was confident that every member of Congress who reviewed the documents unearthed in the case would “resolve to make 1998 the year that we actually pass comprehensive legislation to protect our children and the public health.”

“The documents that came to light today show more than ever why it is absolutely imperative that Congress take action now to get tobacco companies out of the business of marketing cigarettes to children,” said Clinton from the Whit House lawn in a brief statement. Two days later the preside devoted his morning radio address to the subject of tobacco advertising and minors.

“I realized at that point,” says Mangini, “that we were the leading edge of this whole public awareness that the tobacco industry was focusing on our children, on hooking them for their profits-and here was President Clinton recognizing that.”

Escher believes that in the country’s zeal to reduce smoking, many people have lost sight of First Amendment an individual rights. “I think it’s completely out of control,” he says, “and some day society is going to look back and ask, Why did we compromise so many of our values to snuff out tobacco? The danger is the hostility to other peoples’ choices. It’s a loss of freedom and individualism. Some people can’t seem to recognize that the choice to smoke may be a sensible one, and not one that’s theirs.”

After Joe Camel disappeared, Milberg Weiss and Bushnell Caplan still weren’t through. They are now heavily involved with Cordova, filed against all of the nation cigarette manufacturers, alleging that the companies are engaged in a massive public relations fraud in California. The suit alleges that “[t]he tobacco industry knew from studies they sponsored that smoking was hazardous and was [and is] worried that public acknowledgment of this hazard would adversely impact cigarette sales.” The suit uses a claim based on the Unfair Business Practices Act employed by Mangini.

In late March Milberg Weiss and Bushnell Caplan filed a new suit against four tobacco companies, including R.J. Reynolds, charging them with violating California’s new antismoking law. This law, instituted on January 1, 1998, bars cigarette billboard advertising within 1,000 feet of schools and playgrounds. Once again the attorneys used the Unfair-Business Practices Act. And once again Mangini was the plaintiff.

The case settled in June, with the company agreeing to comply with the statute.

“Jury Awards S.F. Radio Executive $1 Million,”

San Francisco Examiner
March 12, 1994
Jury awards S.F. radio executive $1 million

By Dennis J. Opatrny
of the Examiner Staff

A former national advertising sales manager for radio stations KSAN and KNEW has won a $1.12 million judgment against her former employers for wrongful termination.

A San Francisco Superior Court jury returned a unanimous verdict against Malrite Communications Group Inc. of Cleveland after a three-week trial, attorney Rod Bushnell said Friday.

Bushnell said the jury deliberated less than a day and found that the corporation fired Diana Kimbrell, 39, without cause or good reason.

Kimbrell was terminated on June 30, 1992, after nearly seven years with the radio stations. She handled their national advertising accounts.

In an interview, she said her boss had decided to hire new personnel, including a replacement for her despite the fact that she had received no negative performance reviews or other indications that she wasn’t doing good work.

Kimbrell said at a termination hearing that her superiors had given “vague reasons” for firing her, but once she started legal proceedings, they became more specific, such as alleging she failed to service her accounts properly.

“The jury didn’t buy their argument.” Bushnell said. “We just were able to show that Diana was doing a good job.”

William Gaus, lead defense counsel, declined comment on the jury award. He said Malrite had not decided whether to ask Superior Court Judge Richard Figone for a new trial or to reduce the amount of money it must pay Kimbrell.

“Women Give Explicit Sexual Details in Don Johnson Suit: Actor’s Suit Against Two Women, Theirs Against Him are Both Dismissed

San Francisco Examiner
April 13, 1997
Women give explicit sexual details in Don Johnson suit: Nash Bridges’ star denies allegations

By Scott Winokur
of the Examiner Staff

Court filings by two San Francisco women allege a graphic pattern of sexual harassment-including assault-by actor Don Johnson, star of the locally produced “Nash Bridges” TV show.

Johnson has denied misconduct toward the women and accused both in a Los Angeles Superior Court lawsuit of trying to shake him down for a $1.5 million payoff, in exchange for a promise not to sue for sexual harassment.

“Bring a chastity belt to work,” Antonia Napoli, 27, said she was warned by a “Nash Bridges” crew member during her first day on the set, April 14, 1996.

The warning and the alleged harassment that followed are detailed in one of two lawsuits filed in San Francisco Superior Court Friday. The companion suit filed by Kiel Murray, 23, who also claimed harassment and physical assault while working for Johnson and “Nash Bridges” production companies during filming of the show in San Francisco last year.

The women accused Johnson of firing them after they rebuffed his alleged advances. The suits said he violated their civil rights and harmed them physically. Each woman accused Johnson of 12 separate acts of misconduct; Napoli also accused the actor of false imprisonment. The women are seeking back pay and unspecified damages.

“They are no doubt trying to retaliate for Don’s suit against them,” said Johnson attorney, Ronald Litz of Los Angeles. He denied the charges. Elliot Mintz, Johnson’s spokesman, said, “Friends, co-workers and fans should suspend judgment until there is an appropriate forum where Don can prove these women for what they are.”

Napoli, described in the suit as an honors film graduate of USC and a screenwriter, was a production assistant on the show. Murray, a communications graduate of St. Mary’s College, was Johnson’s chauffeur. Napoli declined comment Friday. Murray could not be reached. Their attorneys, Roderick Bushnell and Janet Mangini of San Francisco, also declined comment.

“As Napoli went to the back of the bus to pick up some laptop computers,” the suit said, “Johnson came up behind her and…grabbed Napoli and pushed her against the wall of the bus, stating, ‘I know you want me, I want you.’

“Johnson put his hands down Napoli’s blouse, under her bra.”

In the same incident, the suit said, Johnson made sexual remarks to Napoli, forcibly kissed her, suggested her advancement depended upon her sexual compliance, thrust his hands down her pants.

Johnson told Napoli he wanted to have intercourse with her, the suit said, and Napoli tried to rebuff him by saying, “You can have any girl you want.” She fled the bus.

After complaining about the alleged incident to a male supervisor, Napoli’s suit said she was told: “It will end. He’ll get bored with you and move on. If you sleep with him, he’ll fire you like the others.”

Murray said that on May 10, 1996, she drove Johnson to San Francisco in his black Lincoln Town Car after Johnson and his staff viewed a movie on Treasure Island. Johnson, who normally rode in the back seat, got in next to Murray, the suit said.

“Johnson had an open bottle of wine with him. Once on the Bay Bridge, Johnson slid close to Murray and covered Murray’s eyes with his hands,” the suit said.

“Johnson commanded Murray to drive faster and thrust his hand under her skirt and grabbed her groin area,” it said.

“While driving in traffic on the Bay Bridge, Murray struggled to take Johnson’s hands off her eyes and grabbed his wrist to prevent Johnson from continuing to grope under her skirt.”

Both suits described other alleged acts of misconduct, including: Johnson allegedly implied that Napoli’s advancement was contingent upon her sexual compliance.

During filming of the movie “Tin Cup” in Southern California on May 23, 1996, (Johnson had a supporting role), the actor allegedly told Napoli: “Make love to me…You don’t have to tell anyone. Please spend the night at my house.”

Johnson allegedly spoke suggestively to Murray at Scoma’s Restaurant at Fisherman’s Wharf shortly after she was hired on January 25, 1996, and thrust his tongue into her mouth while on location in the Mission District on April 16, 1996.

Johnson allegedly pressed Murray against the dining room wall of his San Francisco home on May 6, 1996, and fondled her breasts.

On May 10, 1996, Murray alleged, Johnson “pushed (her) skirt above her waist” and pulled her tights away from her waist.

Napoli, who had been hired on Feb. 29, 1996, said she was told on July 23 that she would be let go for budgetary reasons. Subsequently, her suit alleged, she was informed by a production boss that “it was a shame that (she) had been fired and that it was not because of any budget problems.”

Murray said she was informed in mid-August that she would not be retained for fall shooting of “Nash Bridges.” Her suit said she was told by other employees that she was terminated because she refused to sleep with Johnson.

The suits were filed three weeks after Johnson sued the women in Los Angeles for defamation, invasion of privacy and infliction of emotional distress. He accused them of trying to extort a payoff of $1.5 million in exchange for an agreement not to sue for sexual harassment.

Johnson claimed Napoli and Murray accused him of sexual harassment in conversations with others on the “Nash Bridges” set in an alleged attempt to find women who would join them in suing for sexual harassment. Private investigators were hired by the women, Johnson alleged, to conduct a surveillance that invaded Johnson’s privacy.

Johnson’s suit sought unspecified damages.

“Nash Bridges” is set in the city where it is filmed five days a week. The show is about a hip, slick-talking cop played by Johnson—a character similar to the one he portrayed in his previous series, “Miami Vice.” Johnson sued the National Enquirer in February, contending the tabloid newspaper libeled him by claiming his alleged habitual drunkenness on the set of “Nash Bridges” disrupted production of the show.

Johnson’s suit against the Enquirer said the weekly also falsely claimed he was “paranoid to the point that he was sleeping with a gun.” The Enquirer has said it stands by the story.

“Just File It: Nike Case Tests Limits of §17200: Damages Sought Over Alleged Sweatshops in Asia,”

The Recorder
Monday, November 30, 1998
Just File It: Nike Case Tests Limits of §17200: Damages sought over alleged sweatshops in Asia

By: Rinat Fried

With his long, sinewy legs sprawled in the air in an infinite leap toward the basket, Nike pitchman Michael Jordan took the game of professional basketball to a new level.

Now a couple of middle-aged white lawyers are attempting a similar feat—this time in a court of law—trying to take California law to new heights by alleging that Nike Inc. exploits workers in its Southeast Asian sneaker factories.

If they manage to score, Alan Caplan, of Bushnell & Caplan and Patrick Coughlin, of San Diego’s Milberg Weiss Bershad Hynes & Lerach, could open up an entire new front for litigation over California Business and Professions Code §17200, the state’s controversial unfair competition statute.

Their suit, filed in San Francisco Superior Court in May, is scheduled to get its first test Tuesday in a demurrer hearing before Judge David Garcia.

While §17200 isn’t new—it has been used to sue everything from R.J. Reynolds Tobacco Co.’s Joe Camel to computer makers who exaggerate the size of their monitors—its use in Kasky v. Nike, 994446, represents a leap. Never before have lawyers attempted to use the decades-old statute to pressure a company into changing working conditions for laborers in other countries.

“It’s fair to say I don’t know of another case challenging an American company’s representation about its labor practices overseas,” Caplan says.

Nike contends that there’s good reason the case has no precedent. “They are trying to expand as far as possible the use of §17200,” says Nike defense attorney David Brown, a partner at Brobeck, Phleger & Harrison. “I think in this case they have taken it several steps too far.”

The broadly worded statute—and a related law, §17500—is a powerful weapon for plaintiffs. It allows any person to bring a suit alleging an “unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising.” It is controversial among defense attorneys, who say the law is too sweeping: It allows just about anybody to sue, whether or not they have been harmed.

Given the history of §17200 in California, however, it’s not quite that easy to write off the case against Nike.

After all, attorneys scoffed when an upstart lawyer from Albany filed a $10 billion suit in 1994 accusing Lucky Stores of selling cigarettes to minors.

Defense attorneys at the time squawked that the case was an abuse of the private attorney general statute, since it sought to enforce the Penal Code. But the justices of the California Supreme Court voted 6‑1 in February to let attorney Donald Driscoll’s case—Stop Youth Addiction v. Lucky Stores Inc., 17 Cal.4th 553-go forward.

“Whenever the Legislature has acted to amend the [unfair competition act],” Justice Kathryn Mickle Werdegar wrote with an almost perceptible shrug, “it has done so only to expand the law.”

Caplan says his case falls squarely in line with previous §17200 cases.

“There are lots of precedents in terms of misrepresentation under §17200,” says the 54-year-old attorney, who worked together with Milberg Weiss on a successful §17200 case against the tobacco industry over Joe Camel advertising. “It’s not a unique case. It’s a classic case of a corporation misrepresenting to the public.”

The suit alleges that Nike, a $9.2 billion-a-year company headquartered in Beaverton, Ore., fraudulently induced California consumers to buy Nike gear when it denied underpaying and overworking laborers in Vietnam, China, Indonesia and other Southeast Asian countries—charges that Nike denies.

In a Kafkaesque twist, though, it’s not the labor practices that are at issue in the complaint. Rather, Caplan and Coughlin maintain the company is liable for falsely denying wrongdoing under the misleading advertising provisions of §§17200 and 17500.

As examples of Nike’s alleged deceit, Caplan and Coughlin point to corporate press releases in which Nike responded to media criticism over alleged slave labor practices in Asia. The plaintiffs say such statements violate §§17200 and 17500 by misleading consumers about what actually occurred. In one press release, “Nike Responds to Sweatshop Allegations,” for example, Nike stated that it pays Asian factory workers double the government minimum wage. But, the plaintiffs say, an Ernst & Young report commissioned by Nike shows that in one Vietnamese factory, workers earned on average $40 per month, or less than the minimum wage in that country.

In order to prove their case, the plaintiffs will have to travel to Southeast Asia and prove that the underlying allegations about unfair labor practices are true. Then they will have to show Nike’s public statements are “unfair” or “misleading.”

“There are a lot of people [who] if they hadn’t known the true facts about the production methods wouldn’t have bought the shoes,” Caplan maintains, adding that he believes Nike should disgorge all “tens of millions of dollars” it made as a result of its alleged deceit. He also says he wants to prevent Nike from further misrepresenting the working conditions under which its products are made.

Brown, Nike’s lawyer, calls the plaintiffs’ use of the statute absurd—and a violation of his client’s free speech rights.

Section 17200 is supposed to address “cases that deal with the value or quality of what you’re getting. That’s what these statutes are meant to address—not how the product should be manufactured,” he says.

Furthermore, Nike denies using slave labor in Southeast Asia.

“What we’ve maintained all along is that we don’t have a chronic problem with labor violations,” says Vada Manager, a Nike spokesman.

On Tuesday, Brown will ask Judge Garcia to dismiss the case based on a First Amendment defense. He says Nike can’t be sued for speech it made in self-defense after its labor practices came under fire.

“That is your classic public debate as opposed to an advertising campaign,” says Brown.

Such speech is not commercial speech and is therefore protected by the First Amendment, he adds.

The First Amendment defense could trip the plaintiffs up as easily as running full force down court with untied shoelaces.

But Caplan begs to differ. “The First Amendment doesn’t apply,” he says, “because Nike is engaged in commercial speech when [it is] making public statements in an effort to convince the public to buy [its] product.”

But Brown has reason to believe that Garcia will agree with him. In August, Garcia dismissed a §17200 and §17500 case, Keimer v. Hyperion Press Ltd., 994076, against the publisher of the homespun stock investment book, The Beardstown Ladies’ Common Sense Investment Guide based on a somewhat similar First Amendment defense.

The authors, a group of retirees from Beardstown, Ill., admitted that they grossly misstated their average profits from their investments in a chapter of the best-seller. A California reader sued for false and misleading advertising, because the publisher used the exaggerated figure in promotional material for the book. But Garcia ruled that the suit could not go forward because the advertisements quoted from clearly protected material in the book.

Plaintiffs’ attorneys in the Nike case say they aren’t worried, noting there is a big difference between the protections the First Amendment affords the content of a book and a corporate press release.

But Boalt Hall of School of Law professor Stephen Barnett says that the U.S. Supreme Court has defined commercial speech as speech that explicitly proposes a transaction. Nike’s press releases probably don’t fit that description, and could prevent the §17200 case from going forward, he says.

“The statute has been interpreted very broadly,” Barnett says, “but it could meet a limit if it is applied to pure speech.”

“A Mess of Dottage,”

Herb Caen
Tuesday, March 28, 1989
A Mess of Dottage

NEWS TO ME #2379: That Boz Scaggs is starring in his first movie, a thriller titled “Indigo” that is being filmed on the streets of S.F. at This Very Minute! He plays a police detective who doesn’t sing but gives dirty trenchcoat. The film, directed and written by Murdo Laird, is being produced by Roman Coppola, Francis’ son, who has his own S.F. production company, Commercial Pictures. Roman hopes to bring the Francis spends on tips for under a million, which is what Francis spends on tips for gofers... Bill Nothman, fired by owner Cal Rossi as mgr. of the Donatello Hotel (he formerly with Stanford Court), filed a suit via attys. Roderick Bushnell and Thomas Litton and nailed Cal for a $283,285 judgment... Flash from Bruce Bellingham, our man covering the Moscow elections: “Soviets are not reluctant to vote-it’s the exit polls that make them nervous” (but it’s not true that Pete Rose bet on this one)... At last, a suction-cupped window “decoration” for cars that makes even Garfield look tasteful. Mary Ann Henningsen points out the sudden flowering of “Seymour Butts,” a doll that moons passing motorists.

“Plaintiffs’ Lawyer Seeks Evil Employer,”

National Underwriter
May 18, 1998
Risk Management/Employee Benefits
Plaintiffs’ Lawyer Seeks “Evil Employer”
By David M. Katz

San Diego

A plaintiffs’ lawyer acknowledged here that inequities in the tort system limit the protection that workers for small companies get against employment-practices abuses.

Since small employers don’t have the “deep pockets” to lure employment-practices lawsuits, their workers are less likely than those at big companies to be protected against wrongful actions, according to Rod Bushnell, an attorney with Bushnell & Caplan in San Francisco. The issue of which employers get sued for bad acts in the workplace “is about economics,” he said.

Mr. Bushnell was responding to a question from a member of the audience at a session on employment risks at the recent annual conference of the Risk and Insurance Management Society. If lawyers don’t pursue cases with small potential awards, as Mr. Bushnell had said was his practice, how would employees at small firms be protected against the potential “evil ways” of their employers, the questioner asked.

In response, Mr. Bushnell asked if discriminatory acts at small firms would go on in the absence of lawsuits. “Presumably, yes,” he said. Earlier, Mr. Bushnell had said that typically, he wants “to sue deep pockets. I don’t want to sue churches.”

While small employers tend to be the “worst offenders” in terms of employment-related wrongdoing, the lawyer said, the question for him is “Are they going to pay?”

Mr. Bushnell also said he wasn’t looking to bring lawsuits on behalf of plaintiffs for such things as not receiving overtime pay or employee benefits entitled to them, “not the $5,000 to $10,000 case.”

“I want to be able to expose the employer to hundreds of thousands of dollars” in losses, he said, explaining how he chooses which cases to take.

“I look for the evil employer,” Mr. Bushnell said, giving as an example an employer who puts negative statements in a former employee’s file after the employee has been fired.

Such an action is “sneaky,” he said, and “juries hate it.”

Wrongful termination cases may lack the immediate impact of, say, a case involving a physical injury that renders an employee paraplegic, Mr. Bushnell also said. “But if a jury is truly outraged” against an employer, he said, “they most certainly will give a multimillion-dollar verdict.”

Among potential plaintiffs in employment cases, he said, “I look for somebody that’s been terminated. [There’s not] much damage if you don’t get hired or promoted.”

One kind of plaintiff that he’s particularly interested in is “a middle-aged person with two kids in college” who has been fired, he said. For such a person, termination is “devastating,” he said, noting that “I need a plaintiff that’s going to have some pain.”

Typically, he doesn’t select young plaintiffs in such cases as clients because “the wreckage of termination isn’t there,” Mr. Bushnell said. Further, women are more likely than men to display such “wreckage” and “make better plaintiffs than men,” he said, adding that single mothers can elicit an especially strong response from jurors.

Juries are also receptive to women who have been prevented from career advancement by “glass ceilings,” he said. “When that happens, they often complain and are often terminated.”

Such jury predispositions may be “unfair,” he said. However, he added, “there’s a perception that men will land on their feet” if they are fired, while women will have more difficulty.

Mr. Bushnell said that one type of employment case he favors involves a “breach of implied contract.”

“Under California law, if you have long-term employment, you can have a right not to be terminated except for just cause,” he said, adding that a long-term employment” could be defined as at least 10 years of service. Mr. Bushnell said he also seeks out employee-termination cases that involve a “violation of public policy.”

Such cases which involve the termination of an employee who is a “whistleblower,” are difficult, however, because “jurors hate whistleblowers, they hate snitches.”

Typically, seeing themselves as “white knights,” whistleblowers set their own terminations in motion, according to the attorney. Such cases are hard to settle, because the plaintiffs tend to “want their final day in court,” he said.

Further, employers “hate them,” he said. “It’s like…someone working undercover for the cops.” Although, in general, he tries to settle wrongful termination cases, settling is hard to do “because that employer fired my client,” Mr. Bushnell said. “It’s a hard thing to fire someone,” he said, noting that it often produces “sleepless nights” for an employer. Employers are resistant to settling, he said, because they tend to think: This is the hardest decision I’ve ever had to make, and now I have to pay for it.”

Another speaker, L. Paul Van Zuiden, a consultant with Tillinghast Towers Perrin in Chicago, said that employment practices liability has become a “boardroom issue.”

Risk managers should make sure their companies’ boards of directors review employment practices periodically in order to make sure “the firm is doing everything it can in this area,” he said. Mr. Van Zuiden noted that 4 percent of the employment actions cited in a 1997 survey of 4,900 members of the Society of Human Resource Management named the president or chief executive officer of the company.

“That might not be much, but it’s a lot if it’s your president or CEO,” he said. Mr. Van Zuiden also noted that 77 percent of the human resources professionals said they worked for organizations that carried no employment practices liability insurance or that they didn’t know if their organizations carried it, according to the survey by Alexandria, Virginia-based SHRM and the New York-based law firm of Jackson, Lewis, Schnitzler & Krupman.

Employment practices liability is “a cultural issue, and executive management must lead it,” according to the consultant. “It’s a non-delegable duty.”

Senior executives “must establish the standards and live by [them],” he said. Managers need to educate and train employees in proper employment practices and talk to employees about employment issues, according to Mr. Van Zuiden. “It’s hard to talk about, it’s like talking about sex with your kids,” he noted.

Employers must also be honest with prospective employees about job requirements in order to avoid lawsuits later on, he said. Mr. Van Zuiden said he’s found this to be true in the consulting business, which has “high expectations” of job performance.

“Opening Salvos in Ribera-Welsh Harassment Trial: Defense Says She Had to Fend Him Off; Prosecution Says Her Allegations Were Politically Motivated,”

San Francisco Examiner
Tuesday, November 28, 1995

By Scott Winokur
of The Examiner Staff

Former police Officer Joanne Welsh is a working-class woman who overcame tremendous odds to make a place for herself in the San Francisco Police Department, only to suffer humiliation, shame, embarrassment and loss of livelihood when Chief Tony Ribera became romantically interested in her, an attorney for Welsh told jurors Tuesday.

Ribera “hit on” Welsh in the fall and winter of 1989 and resumed his attempts to become sexually involved with her in fall 1992, when her assignment brought her back into contact with him, Roderick Bushnell said during an hourlong opening argument in Welsh’s sexual harassment lawsuit against the chief in federal court in Oakland.

An attorney for Ribera countered that Welsh was a politically motivated activist who was interested in making headlines, when she went public with her charges. The attorney, Nancy Pritikin, also said that jurors would be asked to give credence to “words” . . . allegedly said when no one was present.”

Bushnell argued that Ribera was trapped in a sexually barren marriage and represented himself as the right man for Welsh. “Joanne felt uncomfortable with these overtures of a romantic nature . . . (but) she did not want to hurt his feelings . . . She also felt vulnerable,” the attorney said.

Bushnell described a pattern of harassment, including constant verbal overtures and occasional unwelcomed physical contact. When Ribera had grown impatient with her rebuffs in early 1993, Bushnell said, he ousted Welsh from her job as police public affairs spokesman and effectively exiled her to Siberia in the department, giving her a series of assignments far below her competence.

In January 1995, after two years of “shunning,” Welsh quit the department. As a result, today she is without an income, a pension or job prospects, Bushnell said. “Joanne Welsh did not welcome his advances,” but “Ribera did not take ‘no’ for an answer,” Bushnell said.

The attorney said Welsh will produce overwhelming evidence of Ribera’s misconduct and Welsh’s rejection of him, which, he said, had disastrous consequences for her.

Welsh was “afraid that if she made any waves, her job would be in jeopardy” and her custody of her young daughter would be endangered, Bushnell said.

But by Feb. 11, 1993, Bushnell said, it was clear to Welsh “that her rejection of his advances was going to have some serious consequences,” and she tried to get Mayor Jordan to intervene. “Mayor Jordan refused to intervene,” he said, “(so) she went to The San Francisco Examiner and told her story.”

In an opening statement for Ribera, whose wife of 26 years was present in the Oakland courtroom of U.S. District Judge D. Lowell Jenson, Pritikin called Welsh’s case “a smoke screen.”

Pritikin said: “Joanne Welsh was not sexually harassed. This plaintiff is a very vocal, politically motivated activist.

“Plaintiff’s counsel has spent a lot of time talking about words allegedly said when no one was present.”

Pritikin said that Welsh had not exhausted her opportunities for formal complaint before she went public in an interview with The Examiner on Feb. 12, 1993.

Going to The Examiner, Pritikin said, showed that Welsh “was not interested in making a complaint, she was interested in making headlines.”

As an example of an element of Welsh’s case that will not hold up, Pritikin cited the ex-police officer’s claim that Ribera made her an unwanted Christmas present of gold earrings. Welsh has acknowledged that she no longer knows the whereabouts of those earrings.

“Plaintiff doesn’t have any earrings to show you…We have only her word,” Pritikin said. Welsh, 34, has accused the 50-year-old chief of sexually harassing her verbally and physically on repeated occasions in 1989 and 1992-93. Ribera denies the charges. He was cleared by the Police Commission in 1993.

While Jordan, who appointed him, has stood by Ribera, Jordan’s rival in the Dec. 12 runoff election, Assemblyman Willie Brown, has said that he would fire Ribera.

The chief is eligible for retirement at 65 percent of his annual salary of more than $132,000.

On Monday, a jury of five men and five women was selected. The panel, drawn from a pool of several dozen prospective jurors from San Francisco, San Mateo, Marin, Contra Costa and Alameda counties, is mostly white and middle aged; it includes one black woman, one Asian woman and one Asian man. Attorneys for Welsh, The City and Ribera used their entire combined total of eight peremptory challenges.

No alternates were selected. At least six jurors must remain for a verdict to be brought in under the federal system.

In a pair of last-minute motions Tuesday morning made outside the jury’s presence, Welsh attorney M. Gerald Schwartzbach asked Jensen for an order excluding evidence and witnesses in support of the defense argument that Welsh went public with her charges in The Examine as part of a campaign of political warfare against Ribera.

According to attorneys for the chief and The City, Welsh and her fiancé, then-Supervisor Bill Maher, were trying to retaliate for the chief’s denial of a permanent assignment for Welsh to the department’s coveted public affairs post.

“Attorneys for Welsh Want Harassment Examined: They Hope to Persuade Judge to Look at Her Entire History of Claims Against the San Francisco Police Chief,”

Daily Journal
Wednesday, November 15, 1995

Attorneys for Welsh Want Harassment Examined: They hope to persuade judge to look at her entire history of claims against the San Francisco police chief.

By Sarah Lavender Smith
Daily Journal Staff Writer

Attorneys for former San Francisco police officer Joanne Welsh will try to reinvigorate their case in federal court today by persuading the judge to look at the entire history of her sexual harassment claims against Police Chief Anthony Ribera, despite an earlier ruling by the court that narrowed the suit.

The pretrial hearing before U.S. District Judge D. Lowell Jensen in Oakland will determine the scope of the soap opera-like case against Ribera and the city of San Francisco, which is set for trial Nov. 27. Attorneys on both sides disagree strongly about which issues should go before the court. The city, which has moved for summary judgment and filed 32 motions to limit evidence at trial, maintains that the only relevant matters stem from events during a 14-week period in 1992 and 1993.

Welsh has accused Ribera of harassing her during two separate periods: from September 1989 to January 1990, and from November 1992 to January 1993.

In late September, Jensen dismissed Welsh’s claims relating to the earlier period because they are time-barred by the statute of limitations. The court left open the question of whether evidence from that period could be admitted at trial.

The earlier period is important to Welsh’s case because her allegations from then; including forced kisses, an improper gift and suggestions by Ribera that they have an affair; help prove the later events and are more forceful and physical than allegations from the later period, when Welsh claims Ribera made improper sexual comments to her. Ribera has denied all of the charges.

In papers filed with the court, the plaintiff’s attorneys reach back to 1989 to argue that Welsh’s claims for sex discrimination, unlawful retaliation and defamation should proceed to trial. Using the continuing violation doctrine, which allows time-barred claims to be admitted if it can be shown they are part of a pattern of conduct, Welsh argues the court must look at the entire period in analyzing her claims of sexual harassment and a hostile work environment.

“Joanne’s perspective from 1992 cannot be viewed in a vacuum. She’d been through this before,” said Roderick P. Bushnell of Bushnell & Caplan LLP. Welsh also is represented by attorney Gerald Schwartzbach.

The city, by contrast, barely mentions the earlier period in its brief, except to remind the court that those claims were summarily adjudicated. The motion for summary judgment rises or falls only on what allegedly happened from 1992 to 1993, Deputy City Attorney Joanne Hoeper said in an interview. Whether the evidence from the earlier period can be admitted at trial is a separate issue, to be dealt with after the question of summary judgment, she said.

Hoeper said the plaintiff’s tactic is “to throw as much whatever at the wall and see how much will stick” and “to shove as much stuff back into the case and obscure the record as much as possible.”

The city boils Welsh’s claims of sex harassment and a hostile work environment down to six incidents and argues that only two of those constitute sexual harassment: when Ribera allegedly told Welsh his driver received oral sex in his car and said that as chief he “should be getting some of that action”; and when Ribera allegedly told Welsh “kiss me you owe me” after he prevented three female cadets from being expelled from the police academy.

Judge Jensen also faces a wave of evidentiary motions by the city to exclude any testimony or evidence that could be used by the plaintiffs to suggest a cover-up on the part of the Police Department and the city. Jensen dismissed Welsh’s cause of action alleging a conspiracy between Ribera and the city in his September ruling. The plaintiff’s attorneys still plan to challenge the adequacy of the investigation by the Police Commission into Welsh’s charges and its decision in March 1993 not to go forward with charges against Ribera. They believe the commission was influenced by Mayor Frank Jordan, whom they allege was trying to avoid the loss of his fourth police chief in less than two years.

Motions filed by the plaintiff seek to exclude evidence about Welsh’s sexual history, her financial information, and about two polygraph exams she took and failed in February 1993. The city hopes to use that information in part to show her emotional distress from that period was caused not by alleged harassment, but by the results of her failed lie detector exam, which ran as front-page news in the San Francisco Examiner.

The two sides also dispute whether Welsh, who resigned from the department in January, was forced out or voluntarily resigned. At trial, Welsh must prove her working conditions were so intolerable that a reasonable person would have been compelled to resign.

The city highlights the fact that Welsh waited almost two years to quit after making her allegations public in February 1993, and that she had no real complaints about her subsequent post at the Mission Station. Welsh’s attorneys, however, claim she was subjected to a high degree of retaliation after she made her allegations public.

“She was retaliated against and frozen out,” Bushnell said, by having her gun taken away, by temporarily being transferred to the department’s record room; viewed as a post for “problem employees”; and by “being shunned on a daily basis by co-workers at the Hall of Justice.

To the city, however, the case is about something wholly different from sexual misconduct and retaliation.

This is a case of political revenge,” Hoeper said, that arose after Welsh felt her job in the public affairs office was threatened.

Welsh and her fiancé, former Supervisor Bill Maher, supported Mayor Jordan’s appointment of Ribera to the chief’s post in 1992, but later became upset with Chief Ribera when he appointed another officer, Carl Tennenbaum, to work in her area of responsibility in the public affairs office.

As the work environment between Welsh and Tennenbaum deteriorated, Maher attempted to intervene on Welsh’s behalf, culminating in an argument between Maher and Ribera in which Maher told Ribera they were “going to go to war over this.” The day after their argument in February 1993, Welsh and Maher drove to the San Francisco Examiner to go public with their allegations.

Sexual harassment is simply the tool these two used to pursue their vendetta,” Hoeper said.

To Bushnell, the case is equally cut-and-dried: The truth is she was sexually harassed; she underwent adverse employment actions; she complained about it; then they retaliated against her and made her life hell.”

“Ribera, On Stand, Denies Sex Harassment,”

San Francisco Examiner
Wednesday, December 6, 1995
Ribera, on stand, denies sex harassment

By Scott Winokur
OF THE EXAMINER STAFF

OAKLAND: San Francisco Police Chief Tony Ribera has flatly denied on the witness stand that he sexually harassed former police Officer Joanne Welsh.

In two hours of testimony Tuesday, Ribera answered “No,” “That’s not true” and “I don’t recall,” to allegations that he verbally and physically harassed Welsh in 1989 and 1992-93.

Ribera; composed, well‑spoken and usually addressing his answers directly to the jury of five women and five men; did acknowledge under questioning by Roderick Bushnell, Welsh’s attorney, that he had once asked Welsh to kiss him.

But he said it was a joke.

Bushnell asked Ribera about an incident on Jan. 27, 1993, in which he allegedly sought a kiss from Welsh while she was trying to ask him a question related to her job as the department’s public affairs officer.

Asked whether he said, “Kiss me, kiss me, you owe me. I just saved some female officers from getting fired,” Ribera replied, “I did make a joke. I didn’t see anything offensive about it.”

Ribera also admitted passing around a photo of a court reporter, Melissa Lee, at the bar of Moose’s restaurant in North Beach in late November 1992. Present were Welsh, then-Capt. John Newlin, Deputy Chief Tom Petrini and then-Supervisor Bill Maher, Welsh’s boyfriend.

Welsh has testified that Ribera showed off the photo, boasting, “I’ve got women sending me their pictures.”

Ribera said he may have told Welsh that Lee was attractive. He also admitted taking Lee to lunch on Treasure Island.

But the chief denied speaking of Lee in a sexual way to Walsh. Ribera’s systematic rejection Tuesday of Welsh’s allegations sets up what promises to be a battle of secondary witnesses during the remainder of the trial in the courtroom of U.S. District Judge D. Lowell Jensen.

With Welsh off the stand and Ribera expected to finish his testimony Thursday, the trial’s focus will shift to officers, civilian employees and former members of the Police Department who can confirm, or deny; important elements of each side’s case.

The trial is not in session Wednesday.

In his testimony, Ribera ripped into Maher, who is now engaged to Welsh. In late 1992, Welsh and Maher supported Ribera’s candidacy for chief. But after Welsh and Ribera argued over her position in the Public Affairs Office, and Ribera subsequently learned that she was romantically involved with Maher, they became enemies.

Ribera denied saying to Welsh, in reference to Maher, “You’re not serious about that guy?” He also said he didn’t remember telling her that Maher wasn’t the right man for her.

But he seemed to relish telling the jury how much he disliked Maher. He claimed Maher had bad hygiene and behaved in a bizarre manner. He said he concluded Maher was a buffoon.

Maher has declined to comment, but his money is talking for him. Welsh testified Tuesday that he had lent her large sums to live on and to sue Ribera.

Bushnell methodically covered details of the case that came out in Welsh’s testimony last week.

Under questioning, Ribera denied that he discussed his marital problems with Welsh, denied making verbal overtures to her, such as “I can make you happy,” denied suggesting they have an affair and denied saying, “Here’s our chance,” when the lights went out at the Hall of Justice after the 1989 Loma Prieta earthquake.

The chief also said he had never tried to force a kiss on Welsh or thrust his tongue into her mouth. He denied that he had slipped her a note complimenting her looks or changed his clothes in her presence. “Sometimes, I’d brush my teeth,” in her presence, he said. Ribera denied discussing with her an act of oral copulation involving a woman and his top aide, Officer Carl Tennenbaum, the chief’s occasional driver in 1992-93 and Welsh’s rival in the Public Affairs Office.

But Ribera admitted getting angry with Tennenbaum for saying he’d had sex in the chief’s official car.

Ribera acknowledged giving Welsh a Christmas gift in 1989, but said his wife had picked it out and that he didn’t know what it was. Welsh has testified that he gave her an unwanted present of expensive gold earrings.

Ribera also denied telling Welsh he had nothing to worry about “unless you turn on me” when an Examiner reporter was investigating in November 1992 alleged sexual harassment in the department. “I wasn’t concerned,” Ribera said. “I knew if there were such allegations, they were bogus.”

Ribera said he had not retaliated against Welsh after she went public with her charges in The Examiner in February 1993.

“Isn’t it true,” Bushnell asked, “that you simply sent her to Taraval Station because you knew she’d have lower seniority there” and difficulty obtaining hours that would allow her to find child care?

“I resent the suggestion,” Ribera said. “I have not done anything punitive.”

“PR Campaigns Lose Speech Protection,”

The Recorder
May 3, 2002
PR Campaigns Lose Speech Protection: In 4-3 vote, state Supreme Court says Nike can be sued over its corporate policy statements.

By Mike McKee

The Recorder PR Campaigns Lose Speech Protection In 4- 3 vote, state Supreme Court says Nike can be sued over its corporate policy statements By MIKE MCKEE RECORDER STAFF WRITER In a ruling that’s sure to send a chill wind down Madison Avenue, the California Supreme Court ruled Thursday that companies can be sued for false advertising over policy statements made in public relations campaigns.

Voting 4-3 in a case involving Nike Inc., the justices, relying on U.S. Supreme Court case law, said statements by the Oregon-based shoemaker denying allegations that some overseas factories are sweat-shops were a form of commercial speech not protected by the First Amendment.

“Because in the statements at issue here Nike was acting as a commercial speaker, because its intended audience was primarily the buyers of its products and because the statements consisted of factual representation about its own business operations,” Justice Joyce Kennard wrote, “we conclude that the statements were commercial speech for purposes of applying state laws designed to prevent false advertising and other forms or commercial deception.”

The court’s ruling did not decide whether Nike’s ads were false or misleading, instead leaving that for the trial court, which had sided with Nike at the demurrer stage.

Chief Justice Ronald George and Justices Kathryn Mickle Werdegar and Carlos Moreno concurred with Kennard.

Justices Ming Chin, Marvin Baxter and Janice Rogers Brown sharply dissented, accusing the majority of trammeling on constitutional freedoms by effectively silencing one party to the debate.

“Handicapping one side in this important world-wide debate is both ill-considered and unconstitutional,” Chin wrote. “Full free speech protection for one side and strict liability for the other will hardly promote vigorous and meaningful debate.”

Ann Brick of the ACLU, which filed an amicus brief in the case on Nike’s behalf, said the majority’s analysis was “very disappointing.”

“It essentially shuts business speakers out of the public debate on any issue that directly affects them. That kind of analysis is absolutely antithetical to the basic First Amendment principle that we let the people, not the government, decide who’s right and who’s wrong on an issue of public dispute.”

Kasky v. Nike Inc., 02 C.D.O.S. 3790, began when Marc Kasky filed a private attorney general action claiming that Nike violated California laws prohibiting unlawful business practices and false advertising by issuing press statements refuting claims that workers in Nike’s Southeast Asian factories toiled in slave-like conditions. Kasky said those statements were deliberately deceptive.

Two years ago, San Francisco’s First District Court of Appeal agreed with the trial court and tossed the case, saying that Nike’s public relations campaign was protected because it was non-commercial speech that dealt with a topic of great public interest.

Several groups filed amicus curiae briefs with the court, and the dispute resulted in some odd bedfellows: the conservative Pacific Legal Foundation, for example, stood alongside the ACLU in backing Nike.

In reversing the appeal court, the Supreme Court fashioned a “limited purpose test” aimed at helping trial court judges determine whether allegedly false advertising is commercial, as opposed to non-commercial, speech. The speaker must be someone engaged in commerce, the majority held, the intended audience should be actual, or potential customers, and the content of the message must be commercial in character.

Even under the new test, Chin wrote in his dissent, Nike should pass.

“Nike’s speech, in an attempt to influence public opinion on economic globalization and international labor rights and working conditions, gave the public insight and perspective into the debate,” he wrote. “This speech should be fully protected as ‘essential to free government.’”

The majority saw otherwise, saying Nike had stepped across a fine line.

“To the extent Nike’s speech represents expression of opinion or points of view on general policy questions such as the value of economic ‘globalization,’ it is noncommercial speech subject to full First Amendment protection,” Kennard wrote. “Nike’s speech loses that full measure of protection only when it concerns facts material to commercial transactions here, factual statements about how Nike makes its products.”

The difference in treatment is justified, she held, because commercial speech which is more readily verifiable by its speaker and more “hardy” than non-economic speech can be effectively regulated to suppress false and actually or inherently misleading messages without undue risk of chilling debate.”

In her separate, 30-page dissent, Justice Brown making references to Harry Potter, Lord of the Rings, and King Arthur’s Court, said Nike’s statements should have been protected because the commercial and non-commercial aspects were “inextricably intertwined.”

“Nike’s commercial statements about its labor practices,” she wrote, “cannot be separated from its non-commercial statements about a public issue, because its labor practices are the public issue.”

Brown also called on the U.S. Supreme Court to re-examine its 60-year-old position on commercial speech, saying the court’s current doctrine “fails to account for the realities of the modern world—a world in which personal, political and commercial arenas no longer have sharply defined boundaries.”

Coming up with any such new doctrine, she commented, might require “some wizardry.”

“Unfortunately,” she added, “Merlin and Gandalf are busy, so the United States Supreme Court will have to fill the gap:’

Nike’s attorney, David Brown of Brobeck, Phleger & Harrison, said it was likely his client would seek review at the U.S. Supreme Court. As for the grounds, he said: “They’re well expressed in the two dissents.”

Deborah La Fetra of the Pacific Legal Foundation said the majority ruling could set “a very bad policy of dampening debate on really important public issues.”

“What this decision means,” she added, “is that one side of the debate gets full free speech protection, but a corporation trying to defend itself is subject to strict liability.”

Alan Caplan, one of the plaintiffs lead attorneys, saw a different message in Thursday’s ruling. “Every company is going to have to meet the standard now,” the Bushnell & Caplan LLP partner said. “If you’re going to put statements out about [corporate policies], you’re going to have to tell the truth.”

“Employment Lawyer Fighting to ‘Balance the Scale Between the Powerful and Powerless’,”

San Francisco Senior Beat, February 26, 2020

By Myra Krieger

Roderick P. Bushnell never faced age discrimination himself. But he has dedicated the latter part of his legal career to defending people who have.

Still, he has experienced what it does to older workers when they lose their job. He was a teenager when his father was fired at the age of 50. “My father struggled. Even though he had worked hard for 15 years, he could not find another job.”

Bushnell has been representing clients since 1981 in all types of employment discrimination, particularly against older workers. “When my father got fired there was no remedy for age discrimination.  Now there is.”

Bushnell said he doesn’t know why his father was fired, only what happened afterward. He has empathy for what his clients go through.

Roderick Bushnell remembers the impact on his family when his father was fired at the age of 50 from a job he’d had for 15 years. Bushnell was 14 at the time. Photo by Myra Krieger.

“Their families fall apart,” Bushnell said. “Who is going to pay the mortgage, the car payment, the college tuition? They have to move. They have to downsize. For many workers, this is a time when they have more debt than they ever have had in their lives. It’s enormous. Many just want to keep working, and feel they’ve been treated unfairly by an employer to whom they have given their life.”

His father was a product innovator for Dow Chemical, developing materials like aluminum and magnesium for use in consumer products such as boats and other things. After being let go, he tried – unsuccessfully – to run his own business.

“My mother was a schoolteacher and became the breadwinner; she supported the family on her minimal salary. There was no extra money,” he said. “I worked during high school to save money to go to college. My father never regained the income or stature and died when I was in law school. Afterward, my mother sold the family home and moved into a small house in town.”

Age and high salary a killer combo

In many age discrimination cases, he said, there is a correlation with salary because productive, long-term employees receive step increases or promotions to better paying positions. “A company intent on cost savings, fire the higher paid employees, often older, first.”

He recalled representing a successful salesman of blueprints who was fired at the age of 69: “In the deposition the firing manager said he got a list of employees ages and salaries. He said, “I got rid of the people who made the most money so I didn’t have to fire so many people.’ He did not lie. It was clear that my client was fired because he was a certain age; no other reason.”

There is good news for Californians, however. The law now prevents employees from being fired solely on the basis of their salary, with some limitations and exceptions. 

Born in Buffalo, N.Y., Bushnell landed in San Francisco in 1969 and passed the state Bar exam. He had completed his undergraduate studies in history at Rutgers University and   graduated from Georgetown Law School in Washington, D.C.  He knew he wanted a career in the law but had not yet found his niche.

California law gets progressive

His first job was as an attorney for the Department of Water Resources in Sacramento.    “We did water, and I had never thought about water before I came to California,” he said. “I handled issues involving farmers and the conveyance of water at dams, canals, waterways. There was a lot of litigation.”

In 1971, he opened his own practice. His caseload was divided between criminal and employment law. (His most high-profile case came in the mid-’90s, when he represented a San Francisco police officer against the then-chief in a sexual harassment suit.)

Changes in California law 10 years later prompted him to focus solely on employment law. “California became the strongest state in employment discrimination law, allowing for compensatory (lost wages, emotional distress, attorney fees) and punitive damages,” he said. “This added up to bigger verdicts and settlements which makes litigation more productive.” 

Even though California courts take a progressive approach to fighting age discrimination, it remains fairly pervasive, especially among tech companies, particularly start-ups, Bushnell said.

The start-up trap

“Experienced employees in their 40s and 50s are lured by the potential windfall from stock options. Tech startups say to a candidate `come work for me. This is a start-up, we have a new product. We will give you lots of stock options, and if we make it, you’ll make money on the stock options.’ “

Bushnell calls it “promissory fraud.”

Workers leap at the opportunity of stock options and perhaps getting out of their old company. Eventually, they find their experience doesn’t count for much. When they’re   basically ignored then fired, they’re stunned.   

Bushnell said he’s able to settle most cases, largely because he is litigating more than one cause of action simultaneously. Age discrimination claims frequently involve other factors, such as retaliation or whistleblowing. “If a case goes to trial, anything can happen,” he said, adding that younger jurors are not often receptive to ageism cases alone.

Most insidious

There are more age discrimination cases nowadays simply because people live longer; they need the money in our high-cost society so they are working longer, Bushnell said. “Then they get fired or laid off for the obvious reason of their age, when they can be replaced by a younger, not as expensive employee.”

Not many lawyers will take employment cases, he said, because they are hard, long and expensive. But watching his father’s decline instilled in him a mission.

“It’s fighting for the seemingly voiceless who have lost everything – through no fault of their own,” he said. “It’s important to me to help balance the scale between the powerful and the powerless.” 

Age remains the most insidious type of discrimination, he said. “It is not based on a person’s sex, the color of their skin; it applies to everyone.”

WHAT TO DO IF YOU SUSPECT AGE DISCRIMINATION

There are a lot of published “to-do” lists for people who suspect they are the targets of employment age discrimination. Bushnell has his own requisites:

· “Keep a diary. It’s the four W’s – Who, What, Where, When – on the incident(s) of age discrimination. No extraneous observations. Include verbatim comments and personnel actions. A record, For example, might state: On Friday, Feb. 14, 2020, I was at the water cooler and Jim Jones, PR Manager, said to Henry Morris, IT Manager, “I’m sick of all these old people around here.” Also, there is a fifth “W” – witnesses, people who saw and heard the incident. 

· Talk to the supervisor of the person causing the problem – if it is not the supervisor who is causing the problem.  Otherwise make a complaint to Human Resources, offer a copy of that diary and keep the original. Use the word “discrimination” because that sets in motion the anti-retaliation law.

· Remember that HR is not independent; its managers do the company’s bidding. Workers can file a claim with the California Department of Fair Employment and Housing (DFEH) or the Equal Employment Opportunity Commission (EEOC).  But there are time limits.

· If all else fails, contact a plaintiff lawyer in your immediate area. Check out:  California Employment Lawyers Association (CELA) or the National Employment Lawyers Association (NELA).