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Jury sides with Anapol Schwartz in gay lawyer’s suit

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By Max Mitchell, From The Legal Intelligencer

A Philadelphia jury has rejected a gay lawyer’s claims against Anapol Schwartz over his aborted lateral move.

The jury in Downs v. Anapol Schwartz rendered a defense verdict Tuesday afternoon, finding for the defendants, including Anapol Schwartz shareholder Sol Weiss and former shareholder Mark LeWinter, on claims of both defamation and tortious interference. The verdict came after more than two weeks of trial and more than four hours of deliberation.

Michael Bowman, who represented plaintiff Jeffrey Downs, said it is likely they will file an appeal.

“Obviously we’re disappointed with the jury verdict,” Bowman said.

The defendants declined to comment, but were congratulatory with each other after the verdict. As the jury foreperson read “no” to the final claim, LeWinter, who was seated at the defendants’ table, collapsed forward and all of the defendants and defense attorneys appeared to embrace over him.

Downs sued Anapol Schwartz in the Philadelphia Court of Common Pleas for defamation and tortious interference stemming from Downs’ scuttled lateral move. Downs had planned to move with LeWinter to Raynes McCarty. However, that move was aborted after LeWinter told leadership at Raynes McCarty that Downs allegedly threatened to sue Anapol Schwartz for discrimination.

The case is one of two filed by Downs. In a federal court suit, Downs has asserted claims for defamation and retaliation against Anapol Schwartz, and claims for discrimination, retaliation and defamation against Raynes McCarty.

The complaint filed in the Philadelphia Court of Common Pleas alleged defamation and negligent misrepresentation against LeWinter for allegedly falsely informing Raynes McCarty of Downs’ alleged litigation threat.

When asked if the state court verdict would affect the federal suit, Bowman noted the federal claims stem from a different cause of action. However, Bowman said he believed some testimony given in the state action might be helpful in the federal suit.

“We have to see where that takes us,” Bowman said.

Jury selection in the federal suit is set to begin Aug. 10.

Although attorneys for both sides during closing arguments Monday each attempted to summarize the crux of the case in three words, the arguments largely came down to issues of credibility.

For Bowman, Downs’ claims came down to “trust, distortion and betrayal.”

Bowman pointed to a conversation that Downs had with Anapol Schwartz shareholder Thomas R. Anapol as the root of the distortion that eventually led Downs to lose out on his planned lateral move.

According to Bowman, Downs had initiated that conversation to discuss outstanding fees and expenses due to him in anticipation of his move to Raynes McCarty. But after Anapol made a dismissive comment to Downs, asking him why he needed the expenses since, because Downs was gay, he did not “have a family,” Downs raised concerns about other derogatory comments aimed at homosexuals that he had heard while at the firm, Bowman said.

Bowman argued that, although Downs had raised his concerns as reasons why he wanted to leave and sever his ties with the firm, Anapol communicated to other firm leaders and counsel that Downs had threatened to sue the firm. The information was also eventually relayed to leaders at Raynes McCarty, who then decided not to hire Downs, Bowman contended.

“How did it go so off the rails? It went off the rails because of distortion,” Bowman said. “Mr. Anapol’s misinformation has brought Mr. LeWinter to the precipice with respect to his relationship with Mr. Downs.”

For Anapol Schwartz’s attorney, Gaetan Alfano of Pietragallo Gordon Alfano Bosick & Raspanti, the three words that summed up Downs’ claims were: “Don’t tell Mark.”

Alfano noted that Downs had specifically asked firm leaders at Anapol Schwartz not to tell LeWinter that he had made demands for a severance package.

“Those three words, they make all the difference,” Alfano said. “They show that [Downs] betrayed Mark LeWinter on his way out.”

Alfano used much of his closing argument to attack Downs’ credibility, and said that Downs, in his testimony on the stand last month, was evasive.

“It was like pulling teeth to get the truth,” Alfano said.

And in attacking Downs’ claims of a successful career path derailed by the defendants, Alfano also noted that Downs had worked for nine different employers, holding a total of 11 different positions.

Alfano pointed to portions of Thomas Anapol’s description of the meeting between him and Downs, and said that Downs had come with a binder that included alleged incidents of discrimination. According to Anapol, Downs said, “I’ve got the book on you guys,” Alfano said.

Bowman, however, said jurors should consider the context of Downs’ alleged litigation threat. Bowman questioned Anapol’s version of the discussion, particularly in light of the fact that, when Downs met with Thomas Anapol, Downs was already about to take a job at Raynes McCarty that he viewed as the pinnacle of his years-long career path.

“Anapol testified that the first thing out of Downs’ mouth was, ‘I got a hostile work environment claim,’ and he waved a book around,” Bowman said. “Appreciate the context. Does that make sense?”

The trial was held in Philadelphia Court of Common Pleas Judge Kenneth Powell Jr.’s courtroom.

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Defense seeks sanctions against gay lawyer in defamation suit

Decorative Scales Of Justice In The Courtroom
Decorative Scales Of Justice In The Courtroom

By Max Mitchell, From The Legal Intelligencer

The gay lawyer who sued Anapol Schwartz over his scuttled lateral move should be sanctioned for allegedly making false statements about a key fact in the case, the defendants argued in a post-trial motion.

The motion filed in Downs v. Anapol Schwartz asked the court to award attorney fees and costs, claiming plaintiff Jeffrey Downs made false statements in court filings that allowed his defamation and tortious interference claims to proceed to trial. However, Downs admitted that those statements were false during his trial testimony, the defendants contend.

The sanctions motion was filed several days after Downs filed a post-trial motion seeking a new trial, and arguing the judge who presided over the case was biased because of his shared work history with the lead defense lawyer in the case.

Downs sued Anapol Schwartz in the Philadelphia Court of Common Pleas for defamation and tortious interference stemming from Downs’ scuttled lateral move. Downs had planned to move with former Anapol Schwartz shareholder Mark LeWinter to Raynes McCarty. However, that move was aborted after LeWinter told leadership at Raynes McCarty that Downs allegedly threatened to sue Anapol Schwartz for discrimination.

Earlier this month, a jury rendered a defense verdict in the case, finding in favor of Anapol Schwartz.

The defense’s post-trial motion, which was filed by Gaetan Alfano of Pietragallo Gordon Alfano Bosick & Raspanti, said Downs had maintained during the lead-up to trial that he never attempted to hide from LeWinter a request Downs had made asking the firm to pay him an approximately $88,000 severance package. According to Alfano, Downs had denied asking Thomas Anapol not to tell LeWinter about the demand in court filings.

However, during cross-examination, Downs admitted he had told Anapol not to tell LeWinter about his request for a severance package, the defendants argued.

The defendants contended that Downs’ statements denying that he had asked Anapol to keep the information from LeWinter misled the court, and allowed the case to survive summary judgment “as both claims relied upon plaintiff’s assertion that Mr. LeWinter had conveyed false information to Raynes McCarty.”

“Plaintiff argued that Mr. LeWinter had defamed him by relaying certain information to Raynes McCarty that was not true. Yet plaintiff now admits that the information conveyed by Mr. LeWinter was, in fact, correct,” the defendants said in the motion. “Importantly, as stated by plaintiff himself, the statement at issue—whether plaintiff told Mr. Anapol not to disclose his demand to Mr. LeWinter—was the linchpin of defendant’s defense.”

Alfano declined to comment, and Downs’ attorney, Michael A. Bowman, did not return a call for comment.

In a post-trial motion that Bowman filed May 22, Downs contended that Judge Kenneth J. Powell Jr., who presided over the trial, should have removed himself from the case because he and Alfano had worked together at the District Attorney’s Office and knew each other. Downs argued that Powell demonstrated his bias in favor of Alfano, the lead defense attorney in the case, through evidentiary rulings and statements Powell made before the jury.

“With the trial starting April 24, 2015, and throughout, Judge Powell’s bias and partiality further permeated and was evident by his additional comments, behavior and rulings during trial, which included, among other instances, calling plaintiff ‘pugilistic’ and states that the plaintiff was ‘trying his patience,’ both in front of the jury, while holding plaintiff’s hostile witnesses to the same standard,” Downs said in the motion. “One need only compare the court’s reaction and comments during the testimony of hostile witness Stephen Raynes, who all but refused to respond to simple yes or no questions to gauge the court’s complete partiality in this matter.”

According to the motion, the prior work relationship between Alfano and Powell came to light when Downs’ prior counsel, Kimberly Ashbach, walked in on Powell having alleged ex parte conversations with the defense counsel. Powell then disclosed that he had worked at the District Attorney’s Office at the same time and knew each other, and said he did not see a reason to remove himself from the case. At the time, no objection was made, the motion said.

But after Ashbach stopped handling Downs’ case due to medical issues, Downs entered an appearance for himself, and also put a motion on the record requesting that Powell recuse himself because of his work history with Alfano. That motion was denied, Downs said in the filing.

Among other things, Downs pointed to comments that Powell allegedly made as evidence of alleged bias, including saying that Downs “might as well have gone to Anapol Schwartz ‘with a bandana and a gun,'” and words to the effect of “you’re a smart man, please answer the question” during Downs’ testimony.

Downs also said Powell displayed an “openly aggressive attitude” toward him, and told Bowman that Bowman was misleading a witness and that Bowman “knows better than that.”

Downs also contested several evidentiary rulings Powell made in the case.

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