Objections to Gay Lawyer's Defamation Claim Overruled
A judge has overruled preliminary objections made by personal injury firm Anapol Schwartz and an attorney from Raynes McCarty to a defamation lawsuit filed by an attorney.
The plaintiff, Jeffrey S. Downs, has alleged Raynes McCarty withdrew its job offer to him based on false information it allegedly received from Anapol Schwartz after he had voiced concerns to that firm's leadership over what he believed to be discrimination based on his sexual orientation.
Philadelphia Court of Common Pleas Judge Marlene F. Lachman overruled the objections September 17.
In court papers, the defendants asked the court to toss Downs' defamation claims because they were based on expressions of opinion, and therefore not actionable. The defendants based their reasoning in part on a section of Baker v. Lafayette College, in which the state Superior Court said "there can be no such thing as a false opinion in a free society."
The defendants also cited Section 566 of the Restatement (Second) of Torts, which states, "A simple expression of opinion based on disclosed or assumed nondefamatory facts is not itself sufficient for an action of defamation, no matter how unjustified and unreasonable the opinion may be or how derogatory it is."
In March, The Legal reported that the suit, which was brought by Downs, named Anapol Schwartz shareholder Sol Weiss and former Anapol Schwartz shareholder and current Raynes McCarty attorney Mark LeWinter as defendants.
In the complaint, Downs alleges that in November 2010, while he was working as a senior associate at Anapol Schwartz, the firm required all attorneys to join Facebook and to create and personalize their own page with information about their families, interests and hobbies.
Downs alleges in the complaint that he raised privacy concerns to LeWinter, who was still a shareholder at Anapol Schwartz at the time and with whom Downs worked closely, as well as to the firm administrator, saying he was uncomfortable with the Facebook requirement because he is homosexual and he had heard several conversations among partners and associates that "involved a negative tone toward gay males."
In January 2011, Anapol Schwartz held a mandatory meeting, during which the attorney in charge of marketing, Michael Monheit, discussed the Facebook requirement, according to the complaint. During the meeting, the complaint alleges, LeWinter asked what types of information attorneys should post to their Facebook pages, to which Monheit replied, "'Obviously we don't want to post that you are gay [louder voice] bar hopping [lower voice].'"
Shareholder Jim Ronca immediately added "in a flip manner," "'Not that there's anything wrong with that,'" the complaint alleges.
But counsel for Anapol Schwartz, Weiss and LeWinter, Gaetan J. Alfano of Pietragallo Gordon Alfano Bosick & Raspanti in Philadelphia, told The Legal in March that Anapol Schwartz did apologize to Downs for the comments made at the Facebook meeting and did implement training related to preventing harassment and hostile work environments thereafter.
The complaint further alleges that Downs was subject to other "abusive comments" during his time at the firm.
"Specifically, there were ongoing comments made regarding 'fags' and 'gays have nothing else to do other than giving each other "blow jobs"' and statements that Downs should not be worried about his pay and payment of expenses since 'he did not have a family' — a direct comment that gay men do not have a family," the complaint alleges.
According to the complaint, Downs made several complaints during his tenure at the firm but his concerns were never addressed. Instead, the complaint alleges, Anapol Schwartz began to retaliate against Downs by failing to provide him with adequate legal support and failing to adjust his pay to reflect his contributions to and responsibilities within the firm.
In January 2012, LeWinter, who was preparing to leave Anapol Schwartz for Raynes McCarty, asked Downs to accompany him in the move, according to the complaint.
By February 2012, Downs had a job offer from Raynes McCarty, which he accepted, according to the complaint.
Downs was scheduled to move his furniture to his new firm March 24, 2012, but on the afternoon of March 23, 2012, according to the complaint, Downs received an email from Ronca requesting that he attend an "'exit interview'" with Ronca, Weiss, LeWinter and the firm's outside counsel.
Downs called Ronca and expressed an interest in amicably resolving issues he had with the transfer and payment of fees for his cases, expenses and vacation, saying he would like to meet with Ronca and Weiss without the presence of outside counsel, according to the complaint.
During that phone conversation between Downs and Ronca, according to the complaint, Ronca asked Downs whether he had spoken with Anapol Schwartz shareholder Tom Anapol the previous day about the way the firm had treated Downs during his tenure.
Downs told Ronca he had, the complaint said.
The complaint alleges that, in a March 22, 2012, conversation, Anapol told Downs, "'I do not understand what the deal is about expenses; you do not have a family.'"
The complaint alleges that when Downs responded that his being gay did not mean he did not have a family, Anapol replied, "'Don't you joke about being gay with your friends?'"
The complaint alleges that Downs requested, in writing, a meeting with Ronca and Weiss to discuss the situation, but they refused to meet.
"Instead, they required Downs to sit through an 'exit interview' (which lasted two-and-a-half hours) — that was actually an 'inquisition' as to Downs' intent upon leaving the firm," the complaint said.
On the night of March 23, 2012, the complaint alleges, LeWinter, who at the time was still a shareholder at Anapol Schwartz, called Downs to tell him that Downs' move to Raynes McCarty was off, according to the complaint.
The complaint alleges that LeWinter said Weiss and Anapol Schwartz shareholder Joel Feldman had been pressuring him not to bring Downs with him to Raynes McCarty and had told him that Downs was planning to sue Anapol Schwartz.
"LeWinter told Downs that Weiss made it clear that bringing Downs to Raynes 'would be bad for him [LeWinter] and Raynes,'" the complaint said. "LeWinter stated that Weiss made things very uncomfortable for him and intimated that LeWinter may not even be able to return to the Anapol offices."
According to the complaint, LeWinter told Downs that he had informed Raynes McCarty hiring partner Martin Brigham of the situation, as well as that LeWinter could potentially be called as a witness in the litigation.
Downs told LeWinter he was not planning to sue Anapol Schwartz but that LeWinter should have consulted him before talking to Raynes McCarty, according to the complaint.
LeWinter, however, responded that the intention to sue Anapol Schwartz called into question Downs' character and that Raynes McCarty had a right to know about it, according to the complaint.
The complaint said that, at the time Downs accepted Raynes McCarty's job offer, he had no intention of suing Anapol Schwartz, but instead "wanted a payout from Anapol reflecting vacation, expenses and an agreement on fees for cases he had originated at Anapol."
According to the complaint, Downs met with Brigham and Raynes McCarty attorney Harold Goodman on March 27, 2012, and was informed that his employment with the firm had been withdrawn based on LeWinter's statements that Downs was planning to sue Anapol Schwartz.
Later that same day, during a meeting between Downs, Weiss, Ronca and Anapol Schwartz's outside counsel, Weiss confirmed that he had spoken with LeWinter about Downs' March 22 conversation with Anapol.
On March 28, 2012, according to the complaint, Downs received an email from Raynes McCarty with an attached letter formally withdrawing his employment offer.