KNOX v. PPG INDUSTRIES, INC.

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF PENNSYLVANIA

PITTSBURGH DIVISION

CAROL KNOX PLAINTIFF

VS. 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

OBERMAYER

Bruce C. Fox Obermayer Rebmann Maxwell & Hippel LLP

Direct Dial: (412) 288-2462 BNY Mellon Center

bruce.fox@obermayer.com 500 Grant Street | Suite 5240

www.obermayer.com Pitsburgh, A cee □□□□

F: 412.281.1530

August 9, 2019

VIA E-MAIL: matt_morgan@ared.uscourts.gov

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

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,

fe:

ep

Bruce C. Fox

Attachment

ce: Theodore A. Schroeder (via email)

Allison R. Brown (via email)

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

CAROL KNOX, )

Plaintiff, Civil Action No. 2:15-CV-01434-BRW

Vv. ) Judge Billy Roy Wilson

PPG INDUSTRIES, INC.,

Defendant.

OFFER OF JUDGMENT

Defendant PPG Industries, Inc. (“Defendant” or “PPG”), by and through its undersigned

counsel and pursuant to Rule 68 of the Federal Rules of Civil Procedure, hereby offers to allow

judgment to be taken in favor of Plaintiff Carol Knox (“Plaintiff’ of “Knox”) and against PPG, in

the amount of $ | apportioned as follows:

This amount a represents the total amount PPG shall be obligated to pay on account

of any liability claimed herein, including all costs and reasonable attorneys’ fees that may be

recoverable in this action.

This Offer of Judgment is made for the purposes specified in Rule 68 and is not to be

construed as an admission that Defendant is liable in this action or that Plaintiff has suffered any

damages. 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.

This Offer of Judgment will be deemed withdrawn if it is not accepted, in writing, within

fourteen (14) days of receipt by Plaintiff. Evidence of this Offer of Judgment is not admissible

except in a proceeding to determine costs and/or fees.

Respectfully submitted,

/s/ Theodore A. Schroeder

Theodore A. Schroeder (PA ID NO. 80559)

tschroeder@littler.com

Allison R. Brown (PA ID NO. 309669)

arbrown@littler.com

LITTLER MENDELSON, P.C.

625 Liberty Avenue, 26th Floor

Pittsburgh, PA 15222

Telephone: (412) 201-7624/7678

Facsimile: (412) 774-1959

Counsel for Defendant

PPG Industries, Inc.

Dated: June 24, 2019

CERTIFICATE OF SERVICE

I hereby certify that on this 24th day of June, 2019, a copy of the foregoing Offer of

Judgment was served via United States First Class Mail, postage prepaid, and electronic mail,

upon the following counsel of record:

Brian D. Walters, Esq.

bdw@deltalawegrp.com

Delta Law GRP, LLC

301 Grant Street, Suite 4300

Pittsburgh, PA 15219

Bruce C. Fox, Esq.

bruce.fox@obermayer.com

Jeffrey B. Cadle, Esq.

jeffrey.cadle@obermayer.com

Qiwei Chen, Esq.

Qiwei.chen@obermayer.com

Obermayer Rebmann Maxwell & Hippel LLP

500 Grant Street, Suite 5240

Pittsburgh, PA 15219

/s/ Theodore A. Schroeder

Theodore A. Schroeder

Re: Knox v. PPG-Letter to Judge Wilson

a Fox, Bruce matt_morgan@ared.uscourts.gov 08/10/2019 03:11 PM

ene ‘Brian Walters’, "Chen, Qiwei" __, "Brown, Allison R.

(ARbrown@littler.com)" , "Schroeder, Ted™

"Fox, Bruce" <bruce.fox@obermayer.com>

"matt_morgan@ared.uscourts.gov" <matt_morgan@ared.uscourts.gov>

‘Brian Walters' <bdw@deltalawgrp.com>, "Chen, Qiwei" <qiwei.chen@obermayer.com>,

“Brown, Allison R. (ARbrown@littler.com)" <ARbrown@littler.com>, "Schroeder, Ted™

<TSchroeder@littler.com>

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: matt_morgan@ared.uscourts.gov

Date: 8/10/19 12:10 PM (GMT-05:00)

To: "Fox, Bruce" <bruce.fox@obermayer.com>

Ce: "matt_morgan@ared.uscourts.gov'" <matt_morgan@ared.uscourts.gov>, 'Brian Walters’

<bdw@deltalawgrp.com>, "Chen, Qiwei" <qiwei.chen@obermayer.com>, "Brown, Allison R.

(ARbrown@littler.com)" <ARbrown@littler.com>, "Schroeder, Ted”

<TSchroeder@littler.com>

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" <bruce.fox@obermayer.com> wrote: -----

To: "matt_morgan@ared.uscourts.gov <matt_morgan@ared.uscourts.gov>

From: "Fox, Bruce" <bruce.fox@obermayer.com>

Date: 08/10/2019 09:16AM

Ce: ‘Brian Walters’ <bdw@deltalawgrp.com>, "Chen, Qiwei" <qiwei.chen@obermayer.com>, "Brown, Allison R.

(ARbrown@littler.com)" <ARbrown@littler.com>, "'Schroeder, Ted'" <TSchroeder@littler.com>

Subject: Knox v. PPG-Letter to Judge Wilson

=======================

Mr. Morgan,

Please see the attached correspondence.

[cid:image001.jpg@01D48CB1.049AC960]

[cid:image002.jpg@01D48CB1.049AC960]<https://twitter.com/ObermayerLaw> [

cid:image003.jpg@01D48CB1.049AC960] <https://www.linkedin.com/company/obermayer?trk=tyah> [

cid:image004.jpg@01D48CB1.049AC960] <https://www.facebook.com/ObermayerLawFirm/?ref=hl>

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

bruce.fox@obermayer.com<mailto:bruce.fox@obermayer.com> |

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]