WORKPLACE INVESTIGATIONS: IP & EMPLOYMENT LAW 3a ADDITIONAL... · Reis, Inc. v. Lennar Corp., ... purposes of backup protection of such communication. 18 U.S.C. § 2710 ... WORKPLACE

WORKPLACE INVESTIGATIONS: IP & EMPLOYMENT LAW

Eileen BlackwoodStephen D. Ellis

Andrew ManitskyJonathan Rose

Justin St. JamesRick Weber

ConfidentialityPolicies

Non‐Compete/Non‐Solicitation

ComputerUseandUseofPersonalDevices

COMPUTER FRAUD AND ABUSE ACT

18 U.S.C. § 1030

Whoever intentionally accesses acomputer without authorization orexceeds authorized access, and thereby obtains information from a protectedcomputer shall be punished…


18 U.S.C. § 1030


• two year statute of limitations


18 U.S.C. § 1030


• two year statute of limitations• loss of at least $5,000

Reis, Inc. v. Lennar Corp., 2016 WL 3702736 (S.D.N.Y.)

Reis, Inc. v. Lennar Corp., 2016 WL 3702736 (S.D.N.Y.)

“Plaintiffs’ lost retail value of about $1,629,948 from downloaded reports is not a loss covered by the CFAA. ‘Loss’ is interpreted narrowly, and it includes only costs actually related to computers.”


18 U.S.C. § 1030(e)(11)

“the term ‘loss’ means any reasonable costto any victim, including the cost of respondingto an offense, conducting a damage assessment,and restoring the data, program, system, or information to its condition prior to the offense,and any revenue lost, cost incurred, or otherconsequential damages incurred because of interruption of service”


18 U.S.C. § 1030


“without authorization orexceeds authorized access’

“EXPANSIVE VIEW”

U.S. v. John, 597 F.3d 263 (5th Cir. 2010)U.S. v. Rodriguez, 628 F.3d 1258 (11th Cir. 2010)Int’l Airport v. Citrin, 440 F.3d 418 (7th Cir. 2006)

“NARROW VIEW”

U.S. v. Nosal, 676 F.3d 854 (9th Cir. 2012)WEC v. Miller, 687 F.3d 199 (4th Cir. 2010)U.S. v. Valle, 807 F.3d 508 (2d Cir. 2015)

Hedgeye Risk Mgmt. v. Heldman, 2017 WL 4250506 (D.C. Cir., Sept. 23, 2017)

STORED COMMUNICATIONS ACT (ECPA)

18 U.S.C. § 2701


18 U.S.C. § 2701

Whoever (1) intentionally accesses without authorization a facility through which an electronic communication service is provided; or (2) intentionally exceeds an authorization to access that facility; and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system shall be punished...


Whoever (1) intentionally accesses without authorization a facility through which an electronic communication service is provided

Wyatt v. City of Barre, 885 F. Supp.2d 682 (D. Vt. 2012) (“Once the copy was made, the recording was no longer within a facility provided by an electronic communication service”)


18 U.S.C. § 2701

Whoever (1) intentionally accesses without authorization a facility through which an electronic communication service is provided; or (2) intentionally exceeds an authorization to access that facility; and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system shall be punished...

STORED COMMUNICATIONS ACT (ECPA)“Electronic storage” means (A) any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and (B) any storage of such communication by an electronic communication service for the purposes of backup protection of such communication. 18 U.S.C. § 2710(17).

STORED COMMUNICATIONS ACT (ECPA)“Electronic storage” means (A) any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and (B) any storage of such communication by an electronic communication service for the purposes of backup protection of such communication. 18 U.S.C. § 2710(17).

Lazette v. Kulmatycki, 949 F. Supp.2d 748 (N.D. Ohio 2013)

Cheng v. Romo, 2013 WL 6814691 (D. Mass.)

VERMONT COMPUTER CRIMES

A person who knowingly and intentionally and without lawful authority, accesses any computer, computer system, computer network, computer software, computer program, or data contained in such computer, computer system, computer program, or computer network shall be imprisoned not more than six months or fined not more than $500.00, or both.

13 V.S.A. § 4102 (“Unauthorized access”)





13 V.S.A. § 4103 (“Access to computer for fraudulent purposes”)




13 V.S.A. § 4104 (“Alteration, damage or interference”)





13 V.S.A. § 4105 (“Theft or destruction”)






13 V.S.A. § 4106 (“Civil liability”)






13 V.S.A. § 4106 (“Civil liability”)

A person damaged as a result of a violation of this chapter may bring a civil action against the violator for damages, costs, and fees, including reasonable attorney's fees, and such other relief as the court deems appropriate.

EmployerRightsandResponsibilities

•Are Rosie’s actions a problem? Why?

•Are Gary’s actions a problem? Why?

•Are Rob Roy’s actions a problem? Why?

EmployeePrivacy?•Responsibility regarding Nancy’s privacy?

TomHardy’sPrivacy?

Publicvs.PrivateSector• Different Concerns? Similar concerns?

• Constitutional considerations?

• Collective Bargaining Agreement?

PATENT

COPYRIGHT

TRADEMARK

TRADE SECRETS

What is copyright?protects original works of authorship fixed in any tangible medium of expression

17 U.S.C. § 102(a)

Who owns the copyright?Copyright vests initially in the author of the work.

Who owns the copyright?Copyright vests initially in the author of the work. In the case of a work made for hire, the employer is considered the author.

Who owns the copyright?Copyright vests initially in the author of the work. In the case of a work made for hire, the employer is considered the author.

A work made for hire is “a work prepared by an employee within the scope of his or her employment.”

17 U.S.C. § 201(a), (b); 17 U.S.C. § 101

What is a trademark?word, phrase, symbol and/or design that identifies and distinguishes the source of goods/services

15 U.S.C. § 1127

What is a patent?protects novel, non-obvious and useful inventions by granting the right to exclude others from making, using or selling it

35 U.S.C. § 101, 154

Who owns the patent?“The general rule is that an individual owns the patent rights to the subject matter of which he is an inventor, even though he conceived it or reduced it to practice in the course of his employment.”

Banks v. Unisys Corp., 228 F.3d 1357 (Fed. Cir. 2000)

Who owns the patent?“The general rule is that an individual owns the patent rights to the subject matter of which he is an inventor, even though he conceived it or reduced it to practice in the course of his employment. There are two exceptions to this rule: first, an employer owns an employee's invention if the employee is a party to an express contract to that effect; second, where an employee is hired to invent something or solve a particular problem, the property of the invention related to this effort may belong to the employer.”

Banks v. Unisys Corp., 228 F.3d 1357 (Fed. Cir. 2000)

What is a trade secret?valuable information that is not generally known or readily ascertainable and kept secret

18 U.S.C. § 1839(3)9 V.S.A. § 4601(3)

PATENT

COPYRIGHT

TRADEMARK

TRADE SECRETS

Legally Protected Activities Sources:

Statute/ Constitution Common law – “Public Policy”

First Amendment (Religion/speech/assembly/petition government)

Making a claim for benefits Reporting, opposing, participating in

investigation of violations Threatening to claim, report, oppose,

participate Concerted, protected activity

Statutory Protected Activities Claiming, using benefits Workplace safety Employment practices (discrimination,

retaliation, equal pay protections) Concerted, protected activity (NLRA §§

7,8) https://www.nlrb.gov/rights-we-protect/whats-

law/employers/interfering-employee-rights-section-7-8a1

Whistleblower laws (e.g., Vt. Healthcare Whistleblower Protection Act; SOX; FPTSA; FCA/Qui Tam)

False Claims Act/ Qui Tam 31 U.S.C. 3730: Qui tam: Individuals may sue in the name of the U.S. against

individuals or organizations they believe have defrauded federal government programs

Any employee who is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment by his or her employer because of lawful acts done by the employee on behalf of the employee or others in furtherance of a [qui tam action], including investigation for, initiation of, testimony for, or assistance in a [qui tam] action filed or to be filed . . . , shall be entitled to all relief necessary to make the employee whole.

Such relief shall include reinstatement ... 2 times the amount of back pay, interest ... compensation for any special damages ... including litigation costs and reasonable attorneys' fees ... An employee may bring an action in the appropriate district court of the United States for the relief provided in this subsection.

Federal FCA

31 U.S.C. § 3729 et seq. Knowingly presenting (or causing to be presented) to

the federal government a false or fraudulent claim for payment;

Knowingly using (or causing to be used) a false record or statement to get a claim paid by the federal government;

Conspiring with others to get a false or fraudulent claim paid by the federal government; and

Knowingly using (or causing to be used) a false record or statement to conceal, avoid, or decrease an obligation to pay money or transmit property to the federal government.

Common FCA violations: Healthcare fraud (e.g., price fraud; off-label

marketing; defective devices; phantom billing; billing for unnecessary procedures; mis-coding charges; kickbacks; self-dealing referrals)

Financial industry fraud (e.g., FHA/HUD mortgages; FEMA)

Defense contractor fraud Grant fraud Tax fraud Dodd-Frank § 922 (Securities fraud, FCPA)

Vermont FCA

32 V.S.A. § 631(a) http://legislature.vermont.gov/statutes/sectio

n/32/007/00631

32 V.S.A. § 632 http://legislature.vermont.gov/statutes/sectio

n/32/007/00632

FCA Protected Activity? The fact that later investigations revealed

the absence of any fraud is immaterial. Field v. F & B Mfg. Co., No. 1996 WL 238917 (N.D.Ill. 1996)

The employee does not have to file an actual action to be protected. Childree v. UAP/GA Chem., 92 F.3d 1140, 1146 (8th

Cir. 1996).. Protection exists while the employee is

engaged in gathering information about a possible FCA violation. Neal v. Honeywell, Inc., 33 F.3d 860, 864 (7th Cir. 1994)

Common Law Protected Activities

“Public Policy”: “Plaintiff must show that Defendant was aware that Plaintiff made reports to management about actions or practices which she had an objective, good-faith basis to believe would violate the state’s policy against [ ].”Mayhew v. Hermitage Club, D. Vt. 2:15-cv-00147, Doc. 100: Jury Charge (May 17, 2017)

Public Policy Claim framework

McDonnell-Douglas – pretext? “But for” causation vs. “mixed motive” –

sole or principal reason? Emotional distress?

Process/Ethical Considerations?

Things to think about:

What are your ethics obligations?

Who is your client?

What is/should be your role?

What are your obligations to clients/non-clients?

How do you protect the company?

Privilege?

Litigation?

Some Potentially-Relevant Rules of Professional Conduct

Rule 1.2 – Scope of Representation

Rule 1.4 – Communication: Keep client informed.

Rule 1.6 – Confidentiality: applies to investigation?

Rule 1.7 – Conflicts of interest

Who is client? Unintended representation?

Rule 1.13 – Organization as client

Rule 3.7 – Lawyer as witness

Rule 4.2 – Communication with person represented by counsel

Rule 4.3 – Dealing with unrepresented person

Rule 4.4 – Respect for rights of third persons

Rule 4.5 – Threatening criminal prosecution

Who is the client and why does it matter?

Vermont Rule of Professional Conduct 1.13 – Organization as Client

(a): “A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents.”

Tricky parts:

Who is “duly authorized”?

Conflicting interests/desires

Joint representation?

Implications?

Ethical duties to client/non-clients

Privilege

Others?

Investigate?

Did anyone violate company policy or agreements?

•Duty to self‐report?

Planning the Investigation

Purpose, scope, limitations What documents to be preserved,

compiled, reviewed? Who should be interviewed? Who should do the investigation? Who should be notified? Written engagement agreement? Investigation report?

The Investigation –What is/should be your role?

Considerations:

Purpose of the investigation?

Business/HR vs. Legal Advice

Defend Litigation

Fargher-Ellerth, Good Faith, Advice of Counsel

Sensitivity of information?

Resources?

Your experience as an investigator?

Privilege Issues: Attorney Client

Attorney-Client Privilege:

VRE 502(b)

A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client . . .

Key Issues:

Communications to or from attorneys

Legal advice

Confidentiality

Privilege Issues: Attorney Client

Employee interviews?

Conducted by in-house/outside attorney?

Conducted by HR manager or other non-attorney?

Investigation findings/opinions/conclusions?

How to maintain confidentiality?

Waiver of privilege for trial

Privilege Issue: Work Product

Vermont Rule of Civil Procedure 26(b)(3) & Common Law Protections

Documents prepared “in anticipation of litigation”

Document/Data Preservation

Document Preservation

Duty to preserve triggered by “reasonable anticipation of litigation”

Scope of Duty

Litigation Hold

Ethical Considerations During Interviews

Interview Concerns

Statements of employees governed by VRCP 1.6 (confidentiality & required/permitted disclosures)

VRPC 4.2 – Communication with Persons Represented by Counsel

VRPC 1.13(f)

“In dealing with an organization’s directors, officers, employees, members, shareholders or other constituents, a lawyer shall explain the identity of the client when the lawyer knows or reasonably should know that the organization’s interests are adverse to those of the constituents with whom the lawyer is dealing.”

VRPC 4.3

“When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.”

Upjohn Warnings

Upjohn v. United States, 449 U.S. 383 (1981)

Corporate attorney-client privilege embraces any communication between counsel and a corporate “constituent” concerning a subject within the scope of their duties for the purpose of providing legal advice to the company.

Purpose of Upjohn warning:

Maintain privilege and protect company’s control over privileged information

Avoid joint representation and conflicts of interest

See, e.g., United States v. Ruehle, 583 F.3d 609 (9th Cir. 2009) (failure to give Upjohn warning led to referral to professional conduct board because of conflict of interest and failure to advice CFO he needed separate representation)

Upjohn Warnings

Recommended Components:

Lawyer represents only the company, not the employee

Interview is being conducted for the purpose of gathering facts to provide legal advice

Interview is protected by A/C privilege

Privilege belongs to the company, not the employee

Company may choose to waive the privilege, and provide information to third parties, including the government

Interview is confidential, employee may not disclose to third parties except employee’s personal attorney

Note: Different investigations may warrant different levels of warnings/details

Garrity Warnings

Relevant to public employers.

Garrity v. New Jersey and progeny:

Public employees cannot be compelled to incriminate themselves by threat of discharge from employment.

Statements can be compelled only if immunized from use in future criminal prosecutions.

Garrity Warning:

Order employee to answer under threat of discipline/discharge, but answers cannot be used against the employee in a criminal proceeding.

Should/May/MustEmployeebeSeparatelyRepresented?

The Threat Within: Protecting Against Employee Data Theft

www.elijaht.comBetter Evidence, Clearly

Inside The Numbers

Last year, there were approximately 60M employment separations. U.S. Bureau of Labor Statistics


Inside The Numbers


Inside The Numbers


Computer Forensics To Detect Data Theft

Design and implementation of a sophisticated forensic data theft detection program significantly can reduce data theft and its impacts to organizations.


Forensic Collection Scope & Approach

Considerations: Why Retain an Expert?Minimize Risk of Data AlterationMinimize Risk of Under-collection Verifiability of Process Reasonableness of Process

Whether to Retain – cost/benefit analysis, proportionalityWhen to Retain – early is best, better late than neverWhat to Collect Full Images vs. Targeted CollectionsWhich CustodiansWhat Devices/Systems


PC/Laptop Data


Device Insertion History


File Opening History & Date Forensics


Internet Browsing History

Webmail, Cloud &


Deleted File Recovery & Anti‐Forensic Detection

Webmail, Cloud &


Mobile Device Data


Mobile Device Background

What Is A Mobile Device?Small form factorOne or more wireless network access

interface (e.g. cellular, Wi-Fi)Built-in, non-removable data storageAn operating system that is not a

full-fledged computer OSAbility to use applications via

multiple methods (e.g. native apps, third-party apps, web browser)

- NIST Special Publication NIST.SP.800-124r1, Mobile Device Security

Examples: Smart phones/feature

phones Tablets Wearables Personal digital assistants E-Readers Ultra-mobile PCs Personal digital assistants Portable media players Digital cameras/camcorders GPS devices Handheld gaming consoles


Collection of Mobile Device Data

Self-Collection Often Impractical/Impossible:

No external interfaceDiversity of data

types/appsHidden/deleted dataMix of personal and

business data

Collection typically requires digital forensic expert


Diversity of Mobile Artifacts


Text Message Recovery in Litigation


Image File Recovery in Litigation


Location Tracking in Litigation


Cloud Data


Private Cloud Providers


Social Media Providers


Example: Dropbox


Example: Dropbox


Example: Dropbox


WORKPLACE INVESTIGATIONS: IP & EMPLOYMENT LAW

Eileen BlackwoodStephen D. Ellis

Andrew ManitskyJonathan Rose

Justin St. JamesRick Weber

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF VERMONT

EFFIE MAYHEW,

Plaintiff,

v. Case No. 2:15-cv-00147

HERMITAGE CLUB, LLC,

Defendant.

JURY CHARGE

Members of the Jury:

Now that you have heard the evidence and the arguments, it

is my duty to instruct you on the law. It is your duty to

accept these instructions of law and apply them to the facts as

you determine them.

Plaintiff in this case is Effie Mayhew. The Defendant is

the Hermitage Club, LLC. Plaintiff alleges tha_-t:, she was

wrongfully terminated from her employment in violation of public

policy. Specifically, she claims that her termination was in

retaliation for her acts in furtherance of Vermont's public

policy prohibiting animal cruelty.

ROLE OF THE COURT AND THE JURY

You have listened carefully to the testimony presented to

you. Now you must pass upon and decide the factual issues of

this case. You are the sole and exclusive judges of the facts.

1

Case 2:15-cv-00147-wks Document 100 Filed 05/17/17 Page 1 of 17

You pass upon the weight of the evidence, you determine the

credibility of the witnesses, you resolve such conflicts as

there may be in the evidence, and you draw such inferences as

may be warranted by the facts as you find them.

You are not to single out one instruction alone as stating

the law, but must consider the instructions as a whole. You are

not to be concerned with the wisdom of any rule of law stated by

the court. Regardless of any opinion you may have as to what

the law may be or ought to be, it would be a violation of your

sworn duty as judges of the facts to base a verdict upon

anything but the evidence in the case.

Nothing I say in court or in these instructions is to be

taken as an indication that I have any opinion about the facts

of the case. It is not my function to determine the facts.

That is your function.

You are to discharge your duty as jurors in an attitude of

complete fairness and impartiality. You should appraise the

evidence deliberatively and without the slightest trace of

sympathy, bias, or prejudice for or against any party.

EVIDENCE

You have seen and heard the evidence produced in this

trial, and it is the sole province of the jury to determine the

facts of this case. The evidence consists of the sworn

testimony of the witnesses, any exhibits admitted into evidence,

2


and all the facts admitted or stipulated. I would now like to

call to your attention to certain guidelines by which you are to

evaluate the evidence.

There are two types of evidence which you may properly use

in reaching your verdict. One type of evidence is direct

evidence. Direct evidence is when a witness testifies about

something she or he knows by virtue of their own senses

something she or he has seen, felt, touched, or heard. Direct

evidence may also be in the form of an exhibit where the fact to

be proved is the exhibit's existence or condition.

Circumstantial evidence is evidence which tends to prove a

disputed fact by proof of other facts. You infer, on the basis

of reason, experience and common sense, from one established

fact the existence or non-existence of some other fact.

Circumstantial evidence is of no less value than direct

evidence. It is a general rule that the law makes no

distinction between direct evidence and circumstantial evidence,

but requires that your verdict must be based on all the evidence

presented.

CREDIBILITY OF WITNESSES

You as jurors are the sole judges of the credibility of the

witnesses and the weight of their testimony. You do not have to

accept all the evidence presented in this case as true or

accurate. Instead, it is your job to determine the credibility

3


or believability of each witness. You do not have to give the

same weight to the testimony of each witness since you may

accept or reject the testimony of any witness in whole or in

part.

The weight of the evidence is not determined by the number

of witnesses testifying. You may find the testimony of a small

number of witnesses or a single witness about a fact more

credible than the different testimony of a larger number of

witnesses. Inconsistencies or discrepancies in the testimony of

a witness, or between the testimony of different witnesses, may

or may not cause you to discredit such testimony. Two or more

persons may well hear or see things differently, or may have

different points of view regarding various occurrences. It is

for you to weigh the effect of any discrepancies in testimony,

considering whether they pertain to matters of importance or to

unimportant details, and whether a discrepancy results from

innocent error or intentional falsehood. You should attempt to

resolve inconsistencies if you can, but you also are free to

believe or disbelieve any part of the testimony of any witness

as you see fit.

CORPORATE PARTY

In this case, the defendant is a corporation. The mere fact

that one of the parties is a corporation does not mean it is

entitled to any lesser consideration by you. All litigants are

4


equal before the law, and corporations, big or small, are

entitled to the same fair consideration as you would give any

other individual party.

TESTIMONY AND ARGUMENTS EXCLUDED

I caution you that you should entirely disregard any

testimony that has been excluded or stricken from the record.

Likewise, the arguments of the attorneys and the questions asked

by the attorneys are not evidence in the case. The evidence

that you will consider in reaching your verdict consists only of

the sworn testimony of witnesses, the stipulations made by the

parties, and all exhibits admitted into evidence. When the

attorneys for Plaintiff and Defendant stipulate or agree as to

the existence of a fact, you must accept the stipulation as

evidence and regard that fact as proved.

Anything you have seen or heard outside the courtroom is

not evidence, and must be entirely disregarded. You are to

consider only the evidence in the case. But in your

consideration of the evidence, you are not limited merely to the

statements of the witnesses. In other words, you are not

limited solely to what you see and hear as the witnesses

testify. You are permitted to draw, from facts which you find

have been proved, such reasonable inferences as you feel are

justified in light of your experiences.

BURDEN OF PROOF AND PREPONDERANCE OF THE EVIDENCE

5


Because this is a civil case, Plaintiff has the burden of

proving every element of her claim ~by a preponderance of the

evidence." To prove something by a preponderance of the

evidence means to prove that something is more likely true than

not true. A preponderance of the evidence means the greater

weight, or logic, or persuasive force of the evidence.

not mean the greater number of witnesses or documents.

matter of quality, not quantity.

It does

It is a

In determining whether any fact in issue has been proved by

a preponderance of the evidence, you may consider the testimony

of all the witnesses, regardless of who may have called them,

and all the exhibits received in evidence, regardless of who may

have produced them. If, after considering all of the evidence,

you conclude that Plaintiff has failed to establish any

essential element of her claim by a preponderance of the

evidence, you should find for Defendant. If after such

consideration you find the evidence of both parties to be ln

balance or equally probable, then Plaintiff has failed to

sustain her burden and you must find for Defendant. If you find

that Plaintiff has established all essential elements of her

claim by a preponderance of the evidence, you should find for

Plaintiff.

PLAINTIFF'S LEGAL CLAIM

6


In Vermont, employees hired without a contract for a

specific term of employment are considered "at-will" employees,

who can be fired at any time for any lawful reason or no reason

at all. However, even an at-will employee may not be wrongfully

terminated in violation of public policy. Plaintiff alleges that

she was wrongfully terminated in violation of Vermont's public

policy concerning the treatment of animals. I will instruct you

on the elements of this claim.

Wrongful Discharge in Violation of Public Policy: Elements

To prevail on her claim of wrongful discharge in violation

of public policy, Plaintiff must prove four elements:

1. Plaintiff engaged in a protected activity

2. The Hermitage Club knew of the protected activity

3. The Hermitage Club terminated her employment

4. The termination was motivated by Plaintiff's engagement in

the protected activity

I will elaborate on each of these elements.

1. Protected activity

To establish that she engaged in protected activity, Plaintiff

must show that she had an objective, good faith belief that the

actions or practices she reported to management might violate a

public policy of the state of Vermont. Public policy is defined

as the community common sense and common conscience, extended

and applied throughout the state to matters of public morals,

7


public health, public safety, public welfare and the like.

Public policy may be reflected in law or statute, or in the

people's clear consciousness and conviction of what is naturally

and inherently just and right between man and man, such that the

action at issue is contrary to society's concern for providing

equity and justice.

Vermont has a public policy against cruelty to animals.

State criminal law prohibits depriving an animal that a person

owns or possesses of adequate food, water, shelter, rest,

sanitation or necessary medical attention. Necessary medical

attention is defined to "include medical treatment for illness,

injury, disease, excessive parasitism, or malformed or overgrown

hoof." Sanitation is defined as "the maintenance of clean

conditions for indoor and outdoor enclosures to minimize health

hazards, including periodic cleanings to remove excretions or

other waste materials, dirt, and trash." "Adequate shelter"

means shelter which protects the animal from injury and

environmental hazards. "Adequate food" means food that is not

spoiled or contaminated and is of sufficient quantity and

quality to meet the normal daily requirements for the condition

and size of the animal and the environment in which it is kept.

The law provides that "an animal shall be fed or have food

available at least once each day, unless a licensed veterinarian

instructs otherwise, or withholding food is in accordance with

8


accepted agricultural or veterinarian practices." In addition,

Vermont law prohibits exposing a poison with the intent that it

be taken by an animal.

2. Hermitage Club's knowledge

Plaintiff must show that Defendant was aware that Plaintiff

made reports to management about actions or practices which she

had an objective, good-faith basis to believe would violate the

state's policy against animal cruelty.

3. Termination

Plaintiff must show that Hermitage Club terminated her

employment.

4. Causation

Generally, if the plaintiff establishes that a causal

connection can be shown by circumstances which give rise to an

inference of unlawful termination, then the defendant must

proffer a legitimate, lawful reason for the adverse employment

action. If the defendant provides such a reason, the burden then

shifts back to the plaintiff to show that the Defendant's

proffered reason was a pretext for the termination.

However, you may find that Defendant's termination was

motivated by Plaintiff's protected activity and also by other

lawful reasons. If you find that Plaintiff's protected activity

was a motivating factor in Defendant's decision to terminate

her, Plaintiff is entitled to your verdict, even if you find

9


that Defendant's conduct was also motivated by other, lawful

reasons. However, if you find that Defendant's decision was

motivated by both lawful reasons and because of Plaintiff's

protected activity, then you must decide whether Plaintiff is

entitled to damages. Plaintiff is entitled to damages unless

Defendant proves by a preponderance of the evidence that

Defendant would have made the same decision even if

Plaintiff's protected activity had played no role in the

employment decision.

In addition, Defendant has offered evidence that it terminated

Plaintiff for reasons entirely aside from Plaintiff's protected

activity. Remember that it is Plaintiff's burden to prove that

at least one of the motivating reasons for her termination was

her protected activity, and that an employer may terminate an

employee for any reason, good or bad, as long as it is not due

to-protected activity. However, you should scrutinize the

reasons proffered by Defendant, just as you would any other

evidence. If you find that the reasons were "pretextual," that

is, they were not the real reasons for the decision, then you

may infer or not infer, as you choose, that the pretext was

designed to conceal that Plaintiff was terminated due to her

protected activity.

DAMAGES

10


I will now instruct you on damages. The fact that I am

instructing you on how to award damages does not mean that I

have any opinion on whether or not Plaintiff should prevail on

the merits of her claim. In the event that you do not conclude

Plaintiff's rights were violated, you need not reach the

question of damages. If you do find for the Plaintiff, you must

determine damages. Plaintiff has the burden of proving damages

by a preponderance of the evidence.

Compensatory damages

"Compensatory damages" is a legal term referring to the

amount of monetary payment to which the Plaintiff is entitled to

compensate her for her losses, if any, which resulted from

Defendant's termination. Compensatory damages seek to make the

Plaintiff whole--that is, to compensate her for any harm that

she may have suffered.

For each item of loss or harm that the Plaintiff claim&,

she has the burden of proving by a preponderance of the evidence

that (1) she has or will have such a loss or harm, and (2) the

loss or harm was caused by the legal fault of the Defendant. If

you decide that the Plaintiff has proven these two matters to be

more probable than not, you must then decide how much money will

fully, fairly, and adequately compensate her for each of those

items of loss or harm. Plaintiff's claim for damages includes

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two distinct types of damages and you must consider them

separately:

First, you must determine the amount of any wages and

fringe benefits Plaintiff would have earned in her employment

with defendant if she had not been discharged, less what she

actually received from other employment.

Second, you must determine the amount of any other damages

sustained by Plaintiff, such as emotional distress caused by her

termination. You must enter separate amounts for each type of

damages in the verdict form and must not include the same items

in more than one category.

In determining the amount of damages to allow the

Plaintiff, you may draw such inferences as are justified by your

common experiences and observations of humankind, from the

evidence of the nature of the injuries and the results thereof.

The damages you award must be fair and reasonable, neither

inadequate nor excessive. You should not award damages for

speculative injuries, but only for those injuries that the

Plaintiff has actually suffered. In awarding compensatory

damages, should you decide to award them, you must be guided by

dispassionate common sense. Computing damages may be difficult,

but you must not let that difficulty lead you to engage in

arbitrary guesswork. On the other hand, the law does not

require the Plaintiff to prove the amount of her losses with

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mathematical precision, but only with as much definiteness and

accuracy as the circumstances permit.

I remind you that you may award compensatory damages only

for injuries that Plaintiff proves were proximately caused by

the Defendant's allegedly wrongful termination.

Factors not to be considered in determining damages

In determining the amount of damages to award to the

Plaintiff, you must consider only the evidence in the case. You

must not consider, discuss, or speculate upon any events,

factors, possibilities or other matters not admitted in

evidence. The only proper consideration is what amount of money

will fully, fairly, and adequately compensate the Plaintiff for

the injuries she has sustained as you find from the evidence.

You may not consider or speculate on whether the Plaintiff has

received benefits from other sources in connection with her

injuries. Finally, you should not add any sum to such an award

to compensate for presumed income tax.

Mitigation of damages

A person who has suffered harm by the wrongful act of

another is obligated to exercise reasonable care and effort to

avoid loss and to minimize, or "mitigate," the damages. He or

she may not recover for losses which could have been prevented

by him or her making reasonable efforts without undue risk or

expense on his or her part.

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Once Plaintiff has proved that she suffered damages, it is

the Defendant's burden to prove that any of those damages

reasonably could have been avoided. In deciding whether to

reduce the Plaintiff's damages due to some failure to mitigate

on her part, therefore, you must weigh all the evidence in light

of the particular circumstances of the case, using sound

discretion in deciding whether the Defendant has satisfied its

burden of proving that the Plaintiff could have avoided the

damages in question.

VERDICT BASED UPON EVIDENCE

Your verdict in this case must be based solely upon the

evidence presented at the trial of this case, whether

testimonial or documentary, and legitimate inferences to be

drawn therefrom. Your verdict may not be based upon sympathy

for a party, prejudice, passion, speculation or conjecture.

UNANIMOUS VERDICT

Your verdict must represent the considered judgment of each

juror. In order to return a verdict, it lS necessary that each

juror agree. That is, your verdict must be unanimous.

It is your duty, as jurors, to consult with one another,

and to deliberate with a view to reaching an agreement, if you

can do so without violence to your individual judgment. You

must each decide the case for yourself, but only after an

impartial consideration of the evidence in the case with other

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jurors. In the course of your deliberations, do not hesitate to

reexamine your own views, and to change your opinion if you

become convinced it is erroneous. But do not surrender your

honest conviction as to the weight or effect of evidence solely

because of the opinion of other jurors, or for the mere purpose

of returning a verdict.

Remember at all times that you are not partisans. You are

judges--the judges of the facts. Your sole interest is to seek

the truth from the evidence in the case.

NOTES

You may have taken notes during the trial for use in your

deliberations. These notes may be used to assist your

recollection of the evidence, but your memory, as jurors,

controls. Your notes are not evidence, and should not take

precedence over your independent recollections of the evidence.

The notes th~t you took are strictly confidential, Do not

disclose your notes to anyone other than your fellow jurors.

Your notes should remain in the jury room and will be collected

at the end of the case.

CLOSING INSTRUCTIONS

I have selected to act as

your foreperson. The foreperson will preside over your

deliberations, and will be your spokesperson here in Court. A

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copy of this charge will go with you into the jury room for your

use.

A verdict form has been prepared for your convenience. You

will take this form to the jury room. Each of the questions on

the verdict form requires the unanimous answer of the jury.

Your foreperson will write the unanimous answer of the jury in

the space provided opposite each question, and will date and

sign the form when it is completed.

If it becomes necessary during your deliberations to

communicate with the Court, you may send a note through the

Courtroom Security Officer, signed by your foreperson. No

member of the jury should ever attempt to communicate with the

Court by any means other than a signed writing, and the Court

will never communicate with any member of the jury on any

subject touching the merits of the case otherwise than in

writing, or orally here in open Court. All other persons are

also forbidden to communicate in any way or manner with any

member of the jury on any subject touching the merits of the

case.

Bear in mind also that you are never to reveal to any

person--not even to the Court--how the jury stands, numerically

or otherwise, on the questions before you, until after you have

reached a unanimous verdict.

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Dated at Burlington, in the District of Vermont, this 17th

day of May, 2017.

/s/ William K. Sessions III William K. Sessions III District Court Judge

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