KNOX v. PPG INDUSTRIES, INC.

Filing 257

ORDER addressing Plaintiff's correspondence on Defendant's offer of judgment. Signed by Judge Bill R. Wilson on 08/11/19. (mmAR)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF PENNSYLVANIA
PITTSBURGH DIVISION
CAROL KNOX
VS.

PLAINTIFF
2:15-CV-01434-BRW

PPG INDUSTRIES, INC.

DEFENDANT
ORDER

It may be, under the 3rd Circuit case, that Defendant will not be entitled to attorneys’ fees
and costs, assuming the jury awards some damages to Plaintiff, which would seem to defeat any
argument that her claim was frivolous.
On the other hand, I do not see that Defendant’s offer of judgment is harassment.
It seems to me that Plaintiff should concentrate on whether Defendant’s offer is
reasonable. If Plaintiff recovers less than the offer, then Plaintiff is obviously subject to having
fees or cost denied or cut. I emphasize that I am saying “subject to”; that is, it is something I
will consider. I am not deciding that issue until it comes to pass, if it does.
IT IS SO ORDERED this 11th day of August, 2019.
Billy Roy Wilson
UNITED STATES DISTRICT JUDGE

1

Obermayer Rebmann Maxwell & Hippel LLP

Bruce C. Fox

BNY Mellon Center
500 Grant Street | Suite 5240
Pittsburgh, PA 15219-2502
P: 412.566.1500
F: 412.281.1530

Direct Dial: [phone]
[e-mail]
www.obermayer.com

August 9, 2019
VIA E-MAIL: [e-mail]
Hon. Bill R. Wilson
Richard Sheppard Arnold Courthouse
600 West Capitol Ave, Rm. A403
Little Rock, AR 72201
RE:

Knox v. PPG Industries, Inc.
Case No. 2:15-cv-1434 (W.D. Pa.)

Dear Judge Wilson:
In advance of the trial next week, I believe the Court should be aware of a serious
litigation abuse committed by PPG Industries, Inc. in this case. On June 24, 2019, PPG served
Plaintiff’s counsel with a Rule 68 Offer of Judgment (see attached). As part of this offer of
judgment, PPG threatened Ms. Knox as follows:
If Plaintiff fails to obtain a more favorable judgment against Defendant, please
take notice that pursuant to Rule 68(d), Defendant will ask the Court to deny
Plaintiff any post-offer costs, including attorneys’ fees, and for an award of
Defendant’s post-offer costs, including but not limited to, its attorneys’ fees, a
sum to cover costs of the services of experts in preparation for trial, costs incurred
during trial, and such other costs and fees as the Court deems proper, in addition
to any other rights and remedies available under the law.
(Redacted Offer of Judgment at 2, emphasis added.)
This threat to assess an award of PPG’s attorneys’ fees against Ms. Knox constitutes a
gross misstatement of the law, because the Third Circuit has specifically held that “a defendant
in a Title VII civil rights suit can never recover its attorneys’ fees under Rule 68,” in a blatant
effort to intimidate Ms. Knox. Tai Van Le v. Univ. of Pa., 321 F.3d 403, 411 (3d Cir. 2003).
Predictably, this improper threat has caused my client severe distress when faced with the
prospect of being forced to pay PPG’s legal fees even if she were successful at the upcoming
trial. Defendant’s intimidation tactics are unconscionable, and the Court should exercise its
inherent power to sanction this inexcusable action. See Chambers v. Nasco, Inc., 501 U.S. 32, 43

4827-9721-6927

Hon. Bill R. Wilson
August 9, 2019
Page 2
(1991)(The Court’s inherent power to issue sanctions “extends to a full range of litigation
abuses.”)
We look forward to discussing this matter with the Court in further detail during the
pretrial conference on Monday.
Regards,

Bruce C. Fox
Attachment
cc:

Theodore A. Schroeder (via email)
Allison R. Brown (via email)

4827-9721-6927

Re: Knox v. PPG-Letter to Judge Wilson

Fox, Bruce to: [e-mail]
'Brian Walters', "Chen, Qiwei"
Cc:
([e-mail])"
From:

08/10/2019 03:11 PM

, "Brown, Allison R.
, "'Schroeder, Ted'"

"Fox, Bruce" <[e-mail]>

To:

"[e-mail]" <[e-mail]>

Cc:

'Brian Walters' <[e-mail]>, "Chen, Qiwei" <[e-mail]>,
"Brown, Allison R. ([e-mail])" <[e-mail]>, "'Schroeder, Ted'"
<[e-mail]>

Judge Wilson-Respectfully, in my letter I cited binding Third Circuit authority demonstrating Defendant has no
legal basis to misuse Rule 68 to intimidate Ms. Knox in advance of trial with a threat of
imposing Defendant's legal fees on her if she does not accede to their offer. And, I am aware of
no contrary authority in this Circuit suggesting otherwise. I therefore request that Plaintiff be
permitted to brief the issue.
Thank you,
Bruce C. Fox
Sent via the Samsung Galaxy Note8, an AT&T 5G Evolution capable smartphone
-------- Original message -------From: [e-mail]
Date: 8/10/19 12:10 PM (GMT-05:00)
To: "Fox, Bruce" <[e-mail]>
Cc: "'[e-mail]'" <[e-mail]>, 'Brian Walters'
<[e-mail]>, "Chen, Qiwei" <[e-mail]>, "Brown, Allison R.
([e-mail])" <[e-mail]>, "'Schroeder, Ted'"
<[e-mail]>
Subject: Re: Knox v. PPG-Letter to Judge Wilson
Dear Counsel:
As far as I know, Defendant is within its right to take this step.
Also, far in advance of Monday’s hearing, you all should work out, to the extent possible, any objections to
designations submitted yesterday.
Cordially,
B.R. Wilson
-----"Fox, Bruce" <[e-mail]> wrote: ----=======================
To: "'[e-mail]'" <[e-mail]>
From: "Fox, Bruce" <[e-mail]>
Date: 08/10/2019 09:16AM
Cc: 'Brian Walters' <[e-mail]>, "Chen, Qiwei" <[e-mail]>, "Brown, Allison R.

([e-mail])" <[e-mail]>, "'Schroeder, Ted'" <[e-mail]>
Subject: Knox v. PPG-Letter to Judge Wilson
=======================
Mr. Morgan,
Please see the attached correspondence.

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[

Bruce C. Fox
Obermayer Rebmann Maxwell & Hippel LLP
BNY Mellon Center
500 Grant Street | Suite 5240
Pittsburgh, PA 15219-2502
412.288.2462 tel | 412.281.1530 fax
[e-mail]<mailto:[e-mail]> |
https://protect-us.mimecast.com/s/p7MWCVO0MBtlpVRrTJ3i6r<https://protect-us.mimecast.com/s/jR84CW6jNDt
jn1W7Hmx5k3>
[attachment(s) 2019-08-09 Ltr. to Judge Wilson (Knox v. PPG) 2 4827-9721-6927.pdf,Redacted PPG_s Offer of
Judgment (Knox v. PPG).PDF removed by Matt Morgan/ARED/08/USCOURTS]