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Banking On Bankruptcy: Emails Suggest Negotiations With Detroit Retirees Were Designed To Fail

Thursday, July 25th, 2013

Even before one of their own was appointed emergency manager of the city, lawyers who were consulting with Michigan officials over the winter believed Detroit should move into bankruptcy proceedings that would free the city to walk away from its commitments to retirees. Emails between Kevyn Orr — now Detroit’s emergency manager but at the time an attorney for the law firm Jones Day — and his colleagues show the lawyers believed moving directly to bankruptcy would be better for the city than going through a serious negotiating process.

In one email, an assistant to Gov. Rick Snyder (R) promises to set a meeting between Orr and someone “who is not FOIAble,” suggesting an intent to evade transparency laws. In another, Jones Day lawyers suggest to Orr that elevating Detroit’s bankruptcy in national media coverage would “give you cover and options on the back end to make up for lost time there.” Orr rejected that suggestion as unhelpful. Jones Day continues to represent Detroit in the proceedings, which could take a year or longer.

The messages made public thusfar show Jones Day attorneys defining bankruptcy as inevitable in their own words.

“It seems that the ideal scenario would be that Snyder and Bing both agree that the best option is simply to go through an orderly Chapter 9 [bankruptcy],” one Jones Day attorney writes to Orr in the emails. “Appointing an Emergency Manager, whose ability to actually do anything is questionable given the looming political and legal fights, would only serve to kick the can down the wrong path and unreasonably delay any meaningful resolution of Detroit’s problems.” Defining bankruptcy as the only route to a “meaningful resolution of Detroit’s problems” casts further doubt on the intent of the negotiations that followed Orr’s appointment in March, but a spokesman for Orr called those doubts “absurd.”

The emails were released in response to a Freedom of Information Act request by Robert Davis, a local labor activist with a troubled history. Davis faces federal corruption charges over school board funds that were spent on an advertising campaign. When the charges were filed in 2012,Davis called them politically motivated and said he is innocent.

One January exchange shows Orr reluctant to take on the emergency manager job, and concerned that the law empowering Gov. Rick Snyder (R) to appoint such officials “is a clear end-around the prior initiative that was rejected by the voters in November.” One January 31, Orr wrote that the entire emergency manager system “appears to merely adopts [sic] the conditions necessary for a chapter 9 filing.”

Orr’s assessment of the emergency manager process reinforces retiree advocates’ arguments that Orr’s actions once appointed were not good-faith negotiations with city employees, but an effort to check necessary boxes prior to filing for bankruptcy. In June, when Orr issued a proposal to retirees and bondholders in lieu of declaring bankruptcy, analysts wrote that the proposal appeared designed to be unpalatable, paving the way for the bankruptcy filing. Orr and Snyder have made clear that the bankruptcy resolution will include some cuts to retiree benefits, which are about $1,600 per month for most of the city’s 21,000 pensioners. “They made me some promises, and I made them some promises,” 76-year-old retired police sergeant William Shine told the New York Times. “I kept my promises. They’re not going to keep theirs.

Some legal hurdles may prevent the city from reneging on pension promises in bankruptcy, but the outlook is uncertain.

This article originally posted on ThinkProgress on July 23, 2013.  Reprinted with permission. 

About the Author:  Alan Pyke is the Deputy Economic Policy Editor for ThinkProgress.org. Before coming to ThinkProgress, he was a blogger and researcher with a focus on economic policy and political advertising at Media Matters for America, American Bridge 21st Century Foundation, and PoliticalCorrection.org.

Tribune Emerges Today from 4-year Bankruptcy, with Intent to Sell All Newspapers, TV Stations

Wednesday, January 2nd, 2013

Warren Buffett or civic-minded local investors in L.A., Chicago, Baltimore or other Tribune cities might be unable to purchase the papers individually, unless or until they were broken up by a subsequent owner. 

The newspaper sale has been anticipated for months, but Tribune was expected to keep and grow its broadcast business, so the offloading of those properties.

 As the Tribune company ends a four-year period of bankruptcy today, it plans to sell all of its media properties, according to a report by Robert Channick.

Tribune Co. owns 23 television stations, including WGN-Ch. 9, WGN America, eight daily newspapers and other media assets, all of which the reorganization plan valued at $4.5 billion after cash distributions and new financing. Eventually, all the assets are expected to be sold, according to the new owners.

A financial analysis this year estimated the broadcast assets are worth $2.85 billion; a stake in the Food Network and Internet companies including CareerBuilder is worth $2.26 billion; and the company’s newspapers are worth $623 million.
Multiple newspaper owners have expressed interest in Tribune’s papers.

Kushner also told the AP, “he expects the Tribune’s new owners would sell the newspapers in a single package.” In that case, buyers like Ws would be a surprise.

The sale of the broadcast properties could make News Corp. a more likely buyer (it might even be an incentive for them to buy the less lucrative newspapers), as they already own TV stations in some of the same markets, and the FCC is moving toward relaxing cross-ownership rules.

Tribune CEO Eddy Hartenstein will remain in that role for the next few weeks until the new board appoints a new CEO, most likely former broadcast executive Peter Ligouri.

This post was originally posted by Broadcast Union News on December 31, 2012. Reprinted with Permission.

About the Author: Robert Daraio is a Local Representative at The Newspaper Guild of New York, CWA Local 31003. He lives in New York.

Firing Because Of Bankruptcy Is Illegal

Wednesday, December 23rd, 2009

Employee Terminated Because Of Bankruptcy Gets Right To Trial In Federal Court

I must admit that I don’t ever remember seeing a case involving bankruptcy discrimination — so when I ran across a recent federal court case out of Florida on the subject, it struck me as one well worth talking about.

The case,  Myers v. TooJay’s Management Corporation, is important because there are so few cases on the topic and because bankruptcy affects so many people. The case also highlights some flaws in the statute which could really use a Congressional fix.

What Happened In The Case

Plaintiff Eric Myers filed for Chapter 7 bankruptcy in January of 2008. Around the same time, Myers moved his family to Florida to live with his parents. His debts were fully discharged in May of 2008.

At some point, Myers heard about an opening at one of Defendant TooJay’s restaurants in Sumter County, Florida for a management position.  He called the company contact, Tom Thornton, about the position. Thornton interviewed Myers and the interview went well.

Myers was then scheduled for a two day on the job evaluation which was held at on July 31st and August 1st. During those two days, for which he was paid,  Myers shadowed various employees.became familiar with restaurant procedures.

At the end of the second day, Thornton told Myers that he had performed well and according to Myers, offered him a job.  He was told that he was supposed to start work on August 18, 2008 at a salary of between $50,000 and $55,000 for a 40 hour week.

Thornton contended that he never told Myers he was officially hired, never discussed hours, salary, or a start date.

Thornton contended  he told Myers that any offer of employment was contingent on a background check.

There was no dispute that Thornton photocopied Myers’ drivers license and social security card and had Myers complete and sign several employment forms including :

  • an IRS withholding W-4 form
  • an order form for TooJay’s uniform and shoes
  • a food employee reporting agreement
  • an assistant manger trade secret non-disclosure agreement
  • an I-9 employment eligibility verification form.

Thornton also gave Myers a copy of TooJay’s employee handbook and sexual harassment policy, and directed Myers to sign forms indicating that he received copies. On each form, Myers signed in the blank listed for “employee signature.

Myers was also asked to sign a document which permitted TooJay to conduct a background check and consumer credit report check.

After that, Myers notified his then employer that he was resigning so that he could start at TooJay’s.

A little more than a week later, Myers received a letter from TooJay’s stating that it was rescinding its previous offer of employment because of the credit report. He called the Vice President of Human Resources and was told that he was not hired because he had filed for bankruptcy and that TooJay’s, as a matter of corporate policy, did not hire individuals who had a bankruptcy on their credit report.

Myers went back to his prior employer and asked for his job back but it was too late. His work hours had already been distributed to other employees, and he was told that he could only be rehired at a reduced schedule.

According to Myers no one told him that his employment at TooJay’s was contingent on a satisfactory credit report.

Myers filed a complaint in the United States District Court in Florida claiming bankruptcy discrimination in violation of 11 U.S.C s. 525(b).

Issues In The Case

The defendant TooJay filed a motion for summary judgment asking that the case be thrown out on the grounds that:

  • the statute only applied to discrimination after an employee was hired
  • the statute did not prohibit bankruptcy discrimination with respect to hiring decisions
  • Myers was never hired so the statute did not apply

Myers argued that:

  • the statue applied to hiring decisions in which an employer refused to hire an individual because of bankruptcy
  • the statute applied because Myers had been offered employment,
  • he accepted the offer and was terminated because of the bankruptcy
The Court’s Decision

The Failure To Hire Claim

The Court analyzed Section 525 of the Bankruptcy Code which protects individuals from discrimination. 

For whatever reason, there are two different standards in these bankruptcy discriminaion statutes– one for governmental employees [s.525(a)] and one for private employees [s.525 (b)] – and they are different.

The language of the statute regarding governmental employees states that the government :

[M]ay not . .. deny employment to, terminate the employment of, or discriminate with respect to employment against a person that is or has been a debtor under this title or a bankrupt or a debtor under the Bankruptcy Act or another person with whom such bankrupt has been associated . . .

Section 525 (b) was enacted several years later. It applies to private employers. Peculiarly, while the topic is the same, the language is different. It states that:

No private employer may terminate the employment of, or discriminate with respect to employment against an individual who is or has been a debtor under this title, a debtor or bankrupt under the bankruptcy Act, or an individual associated with such debtor or bankrupt,….

As the statutory language set forth above indicates, the section pertaining to government employees prohibits an employer from “denying employment” to a person because of bankruptcy.

The section pertaining to private employers does not contain a similar provision.

Therefore, according to the Court,  the section which applies to private employees only prohibits discrimination because of bankruptcy to those already employed.

If Congress intended a different result, the Court reasoned, it would have chosen different words in the statute. (as the opinion points out, only one court has reached a contrary result)

As the opinion states:

Thus by its plain language, the statute does not provide a cause of action against private employers for persons who are denied employment due to their bankrupt status….

In the absence of strong indicia of a contrary congressional intent, [a court should ] conclude that Congress provided precisely the remedies it considered appropriate.

Summary judgment was granted for the defendant TooJay on Myers discriminatory hiring claim.

The Termination Claim

Both parties agreed that terminating an individual’s employment because of bankruptcy status violates 11 U.S.C.s. 525(b).

Meyers argued that an employment relationship with TooJay’s was created on July 31 and August, 1, 2008.  When TooJay rescinded its offer of employment, Meyers claimed, it fired him solely because of his prior bankruptcy in violation of the statute.

TooJay contended that an employment relationship was never created.

The Court found that based on the evidence presented,  the jury could determine that an employment relationship was created.  Important to the Court was proof that:

  • Thornton made Myers an unconditional offer of employment
  • The parties finalized all key employment terms, such as start date, hours of operation,job duties,and salary
  • Myers signed numerous employee-related forms and received a copy of the handbook
  • Myers  actually worked for TooJay’s for two day.

On the other hand, as the Court pointed out TooJay presented evidence through Thornton’s testimony that:

  • Myers was never employed by TooJay’s and that
  • only a conditional offer of employment was made — contingent on a clean background and credit check.

Based on the record and the “material facts in dispute” TooJay’s motion for summary judgment was denied.  Meyers won his right to have a jury hear his claim.

Conclusion

It’s important for all employers to know that it’s illegal to terminate an individual because of an individual’s bankruptcy status.

Hiring decisions are more problematic. Government employers can’t refuse to hire a candidate because of bankruptcy. Private employers, according to most courts, are not covered by the bankruptcy statute with respect to offers of employment.  This makes no sense.

In light of today’s economy, with so many Americans sadly having to declare bankruptcy, these statues should be reconciled so that they are consistent.

All employers should be prohibited from discriminating against individuals due to bankruptcy with respect to all aspects of employment. Congress should amend the language of S. 525(b) so that private employers can’t refuse to hire someone because of bankruptcy.

After all, aren’t these the folks who desperately need to work and earn some income? Isn’t this why we have bankruptcy discrimination laws?

image: newzar.files.wordpress.com

www.floridabeerfestivals.com

*This post originally appeared in Employee Rights Post on December 15, 2009. Reprinted with permission from the author.

About the Author: Ellen Simon is recognized as one of the first and foremost employment and civil rights lawyers in the United States. With more than $50* million in verdicts and settlements and over 30 years of experience, Ellen has been listed in Best Lawyers in America and in the National Law Journal as one of the nation’s leading litigators. She has been lauded for her work on landmark cases that established employment law in both state and federal court. Ellen also possesses a wealth of knowledge as a legal analyst discussing high-profile civil cases, employment discrimination and women’s issues. Ms. Simon has been quoted often in local and national news media and is a regular guest on television and radio, including appearances on Court TV. She is the author of the Employee Rights Post, a legal blog devoted to employee and civil rights.

*prior results do not guarantee a similar outcome

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