A New York law firm has taken a leaf out of the legal playbook of celebrities by filing a preemptive suit against a secretary who allegedly demanded $9 million in return for not going public with a rape allegation.
Windy Richards has claimed she suffered “relentless” sexual harassment by Joseph V. Figliolo, a partner at Bivona & Cohen, culminating in the rape in November 2007. Her lawyer notified the firm in March that she was prepared to file suit.
But Bivona & Cohen beat her to the courthouse, filing a complaint last month which is much like that of talk-show host Bill O'Reilly, who alleged in 2004 that a Fox producer had threatened to sue him for sexual harassment as part of a $60 million extortion scheme.
Richards allegedly demanded a more modest $9 million as the price for her silence. “There was no rape or harassment," the suit says, and
Defendant's claims are false and are intended to publicly sully the reputations of an established successful law firm and a partner in the Firm if her unlawful demand is not met.
Figliolo is no celebrity and, judging from the complaint, no paragon of virtue either. But Bivona & Cohen's lawyer, Ronald M. Green, knows the territory well, having previously represented O'Reilly in his suit against Andrea Mackris.
"So-called 'preemptive' litigation is not the appropriate response to all threatened employment lawsuits and there are risks, but ... under the right circumstances, going on the offensive can be a highly effective way to protect a company’s legitimate business interests," Green wrote in a Bloomberg Law Reports article.
According to its suit, Bivona & Cohen hired Richards as a probationary employee in August 2007. She knew Figliolo had a drinking problem, it alleges, and entered his office in the early afternoon of Nov. 16 “to proposition him as part of a scheme to exploit his vulnerability.”
As Figliolo sat at his desk, Richards allegedly performed a lap dance, causing him to ejaculate. She did not claim she was raped, the suit says, until a Feb. 12 meeting called by an office manager to discuss her frequent absences from work.
The March 26 letter from Richards' attorney was followed, the suit says, by the demand for $9 million to settle the matter and avoid publicity. Bivona & Cohen is now seeking “affirmative action and relief, including a declaration that her threatened claims under the 'state and local anti-discrimination and human rights laws' have no factual and legal merit.”
Green has said that a preemptive strike can, among other things, “minimiz[e] the potentially serious damage to a party’s reputation that can result from an attempted shakedown.” O'Reilly's case settled for an undisclosed amount before the parties even got into discovery.
But one employment plaintiffs' lawyer has called the tactic “thuggish,” warning that preemptive suits “subject the employer to more liability for retaliation.”
Richards, apparently, is ready for a fight. “This is a lawsuit brought by a firm that according to its Web site prides itself on the tactic of filing what it describes as 'preemptive' lawsuits,” her lawyer said. “We look forward to this matter being resolved in a court of law.”
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COMMENT
"Are they kidding? Anyone who has ever been in a law firm environment knows that staff members are considered and are treated as inferior to the attorneys, particularly partners of the firm. In the complaint, Bivona attempts to portray their 50+ something year-old partner who engaged in this behavior as a victim [of] this calculating and manipulative secretary. Is this a joke? Bivona should be ashamed of itself." -- M.G.
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By Matthew Heller
5/14/08 
