by Richard W. Millar, Jr.
Social media has been in the headlines a lot recently. Worries abound that those folks at Facebook and other sites have been mining our personal information and selling it to the highest bidder, and the accuracy of postings has been widely questioned. And here I come with my second social media column of this year.
Recently, I received a notice from Facebook that their amazing facial identification software had been upgraded and improved, and inviting me to tag myself in four photos, each with a little square over my face. What I learned was shocking even to my jaded mind.
It turns out that I am not who I thought I was after lo these many decades. I just learned that I am, at least according to Facebook, Joel Miliband.
Either I have been suffering a lifelong identity crisis, or Facebook is wrong. (I also don’t know how Joel will feel about it, so for now I will keep it a secret.)
However, sometimes these sites are spot on.
Just ask New Jersey lawyer Lina Franco.
On second thought, maybe that’s not a good idea.
Siu Ching Ha and Pak Chuan Leong brought a class action in the United States District Court in New Jersey against four cafés and their owners for Fair Labor Standards Act violations. They were represented by out-of-area counsel John Troy and local counsel Lina Franco.
The court set a deadline of November 23, 2016 to file a motion for conditional class certification. The deadline passed with neither a motion, nor a request for an extension.
Sixteen days after the deadline, Ms. Franco filed a motion with a belated request for an extension. The extension request said, in part:
[O]n November 21, 2016, I was forced to leave the Country due to a family emergency in Mexico City. I have attached a copy of my itinerary as Exhibit (A). Plaintiffs were to file their motion for collective action on that week on November 23rd but due to my family emergency, which is still ongoing, I was unable to file until today.
The attached itinerary, which the court said appeared to be generated by “despegar.com,” showed that she had flown from New York to Mexico City on “Thursday, November 21, 2016” and returned to New York on December 8th.
The request drew objections and, later, a sanction motion. Not only was November 21st a Monday, not a Thursday, there were some pesky Instagram photos showing that Ms. Franco was in New York and Miami during the time she averred she was in Mexico City. Screenshots of the Instagram photos were attached as exhibits.
Don’t you hate when that happens?
The court set a hearing for the certification motion and the objections. Hemmed in by that, Ms. Franco withdrew the motion with prejudice arguing that made the motion (and objections) moot. After the court deemed the motion withdrawn, Ms. Franco “reversed course” and asked to change the withdrawal to be without prejudice. She claimed her mother’s medical diagnosis “had sent her into a ‘tailspin’ that caused her to miss the deadline” and the reason why she gave the court “an erroneous itinerary” was because she was suffering from “emotional distraction.”
At that point, Mr. Troy chimed in that he had prepared the motion and sent it to Ms. Franco for filing, he didn’t know it was late filed, and did not consent to it being withdrawn. And then the defendants, seeing chum in the water, requested leave to file for sanctions.
Ms. Franco argued that her withdrawal was within the “safe harbor” period, that her conduct was not “unreasonable and vexatious,” and this bell ringer: that Mr. Troy should be jointly liable with her. (That’s known as taking a bad argument and making it worse, but I digress.)
The result should be no surprise. The court found that she had been dishonest with the court and counsel, that her “misrepresentations were not made extemporaneously during a vigorous fast-moving oral argument . . . [but were made] in a letter that she drafted, had time to reflect on and review for accuracy, and submitted anyway.”
The old saying may be that “a picture is worth a thousand words,” but in this case it was worth ten thousand dollars.
Richard W. Millar, Jr. is Of Counsel with the firm of Friedman Stroffe & Gerard in Irvine. He can be reached at rmillar@fsglawyers.com.