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Citing boozing jurors and court misstatements, attorneys for the baker of Twinkies and Wonder Bread will ask a San Francisco judge today to grant a new trial in a discrimination suit and toss out $121 million in punitive damages. “This defendant — and the people of the state of California — were and are entitled to the assurance that the jury’s freakish verdict was a product of judicial proof rather than distillery proof,” Interstate Brands Corp.’s motion for a new trial says. “The jury award in this case is not simply unprecedented; it is bizarre,” wrote appellate attorney Paul Cane Jr., a Paul, Hastings, Janofsky & Walker partner. “It is more than 35 times larger than the largest nonclass award ever affirmed in a published decision in the history of U.S. employment law.” Not so fast, said San Francisco plaintiffs’ attorney Angela Alioto, who asked Superior Court Judge Stuart Pollak to approve the punitive damage award and ignore IBC’s allegations of juror misconduct for drinking alcohol during trial and deliberations. “This jury’s verdict will do exactly what the Legislature intended it to do; it will make corporate powers that be stop and think twice before they discriminate against their employees,” Alioto wrote in her reply brief. “This jury’s verdict has the potential to deter discrimination in this nation like no law possibly could, and this court has the power and the right to make it happen. “The court should affirm this jury’s decision, with conviction,” she added. “To do otherwise would be to tell corporate America that it is OK that the [worst] of racial slurs and the [worst] of treatment is OK in the state of California.” Pollak will hear the motion for new trial this afternoon but may not rule immediately. In August, a multi-race jury determined that IBC discriminated against 17 African-American employees by denying them promotions, pay raises and even the use of certain bathrooms. They also found IBC managers used racial slurs. Jurors initially awarded $11 million to the plaintiffs in compensatory damages. Pollak cut that in half. Jurors then slapped the Ho Ho baker with $121 million in punies. Now the nation’s biggest bakery is asking the judge to take notice of the alleged juror misconduct and record-breaking punitive damage award. IBC attorneys argue that one juror admitted taking “a little nip of vodka” from time to time in the courthouse bathroom. “Five or six other jurors drank both beer and hard liquor during breaks,” the motion asserts, citing a transcript of the judge’s in-chambers questioning of juror David Gaines, who had been suspected of drinking. “At least one individual had multiple drinks in such sessions. The drinking occurred during deliberations.” But Cane argued that Pollak should have questioned each of the 12 jurors individually and in private, not just Gaines. Cane criticized the judge for “asking questions in a conclusory way” rather than asking the other jurors if they’d been drinking or if their colleagues had appeared to be impaired. “Well, the record will reflect that all 12 of you are staying silent, nodding, some of you nodding your heads negatively, so I take it then that all of you do feel comfortable that all 12 of you at all times were able to fully concentrate, that nobody’s ability to concentrate was in any way impaired by consumption of alcohol or anything else,” Pollak said, according to a court transcript. “I take it that’s true. You are all agreeing with that.” IBC’s attorneys also took Pollak to task for failing to conduct a detailed evidentiary hearing, even though he had expressed his concern at a hearing without the jury present. “I certainly am chagrined, to say the least, to learn that a number of jurors have been consuming alcoholic beverages while these deliberations have been taking place,” the judge said in open court to Patrick Mullin, the defendant’s lead trial attorney and Jackson Lewis Schnitzler & Krupman partner, who had demanded a mistrial. IBC attorneys also criticized Pollak for telling deadlocked jurors to go back and continue to deliberate, since he said both sides preferred a clear-cut verdict to a hung jury. “Respectfully, the court’s remarks were wrong,” the IBC motion said. “They implied to jurors — some of whom on certain issues favored the defense — that the defense would prefer a loss to the new trial that a hung jury would produce. As that implication obviously is not true (indeed, the defense here seeks just such a new trial) the court’s statements were [in] error … the error was prejudicial.” But the loudest howl from IBC arose over the size of the punitive damage award. IBC attorneys did some legal research to drive home their point. Cane said the $121 million was 1,651 times the median of all other published employment law awards, and 461 times the mean. “We know this because IBC conducted an exhaustive computer survey of every modern published decision under the employment statutes in which compensatory and punitive damages are recoverable,” Cane wrote. “The punitives here average nearly $7 million per successful plaintiff, approximately double the largest affirmed award in history.” According to IBC’s motion, the largest employment award to survive judicial review in a published decision was Weeks v. Baker & McKenzie, 63 Cal. App. 4th 1128, where secretary Rena Weeks won $3.5 million in punitives against the law firm and $225,000 against the partner accused of sexual harassment. Alioto dismissed IBC’s assertion that a new trial was merited. She said the court should strike a blow against racial discrimination by allowing the damages to stand. “The only aspect of this case that is truly bizarre is that such blatant contempt for fundamental civil rights by a large national employer still exists in this country,” she concluded.

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