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United States Court of Appeals,
Fifth Circuit.
No. 93-2478.
Cynthia WILLIAMS, Lorenzo Harris, Shelly Hill, Hallie Cloud,
Frelander Yarbrough, Jr., Donald Jackson, Clyde Warner, Dwjana
Lawson, Jackie Martin, and Huey Cunningham, Individually and on
Behalf of All Others Similarly Situated, Plaintiffs-Appellants,
v.
PHILLIPS PETROLEUM COMPANY, W. Wayne Allen, and C.J. Pete Silas,
Defendants-Appellees.
June 24, 1994.
Appeal from the United States District Court for the Southern
District of Texas.
Before SMITH and BARKSDALE, Circuit Judges, and WALTER,* District
Judge.
JERRY E. SMITH, Circuit Judge:
Plaintiffs appeal a summary judgment in favor of defendants on
claims under the Worker Adjustment and Retraining Notification Act
("WARN"). Finding no error, we dismiss the appeal. Concluding
that the appeal is frivolous and that plaintiffs' counsel's attacks
on opposing counsel and the district court are baseless and
scurrilous, we award attorneys' fees and double costs under
FED.R.APP.P. 38.
I.
A.
In 1992, Phillips Petroleum Company, Phillips Gas Holding
Company, Inc. ("PGHC"), and Phillips 66 Company, a division of
*District Judge of the Western District of Louisiana,
sitting by designation.
1

Phillips Petroleum Company, reduced their work forces at their
Houston Chemical Complex ("HCC"). Phillips Petroleum Company laid
off over 500 employees in Bartlesville, Oklahoma, and provided them
with sixty days' advance written notice. The company laid off many
of those employees in May 1992, including Clyde Warner, Dwjana
Lawson, Jackie Martin, and Huey Cunningham (the "Bartlesville
plaintiffs").
HCC laid off twenty-seven employees who worked at three
different locations in the Houston area and did not give any of
them sixty-day written notices. HCC laid off five employees in
December 1991, sixteen employees from March to July 1992, and six
employees in September 1992. From March through June 1992, PGHC
laid off forty employees who worked in three different single sites
of employment. Thirty-one employees worked in Bartlesville,
Oklahoma, eight in Houston, and one in Washington, D.C.
PGHC gave all the employees who worked in Bartlesville and
four employees who worked in Houston sixty days' written notice of
the layoff. The remaining laid-off PGHC employees did not receive
sixty days' notice.
Five of the plaintiffs (collectively "Williams" or the
"original plaintiffs") worked for HCC, which laid off Cynthia
Williams and Shelly Hill in March 1992 and Hallie Cloud, Frelander
Yarbrough, Jr., and Donald Jackson in September 1992; the other
named plaintiff, Lorenzo Harris, worked for PGHC in Houston. PGHC
laid off Harris in March 1992. The defendants did not provide
sixty-days' written notice to any of the original plaintiffs. No
2

original plaintiff worked in Bartlesville, although the
Bartlesville plaintiffs all worked in Bartlesville.
Phillips Petroleum Company laid off the Bartlesville
plaintiffs in March 1992 and provided sixty-day written notices.
The original and Bartlesville plaintiffs all signed releases after
their terminations in exchange for enhanced layoff benefits.
B.
The original plaintiffs brought this action for alleged
violations of WARN, 29 U.S.C. �� 2101-2109, alleging that Phillips
Petroleum Company and two of its officers, W.W. Allen, and C.J.
Silas (collectively "Phillips"),1 laid them off without providing
the sixty-day written notice required by WARN.
On January 25, 1993, defendants requested summary judgment on
the grounds that WARN was not implicated because the layoffs were
not from a single site and that even if the single-site requirement
was met, the plaintiffs had signed written releases of their claims
against Phillips. Plaintiffs filed a cross-motion for summary
judgment, asking that the written releases be declared invalid.
On April 26, 1993, the original plaintiffs moved to join
1Because we dismiss all defendants for failure to state a
valid WARN claim, we need not address the issue of whether WARN
permits liability to be imposed on individual defendants such as
Allen and Silas. We note that individuals are excluded by WARN's
plain terms, as WARN covers only an "employer," defined as a
"business enterprise" that employs "100 or more employees." 29
U.S.C. � 2101; Wallace v. Detroit Coke Corp., 818 F.Supp. 192,
194 (E.D.Mich.1993). Construing a similar definition of
"employer" in title VII of the Civil Rights Act of 1964, 42
U.S.C. � 2000e(b), we recently held that a natural person who
does not otherwise qualify as an "employer" cannot be held liable
for backpay. See Grant v. Lone Star Co., 21 F.3d 649, 653 (5th
Cir.1994).
3

unnamed new parties to the lawsuit, stating that the new parties
would be individuals who had been laid off from Phillips's
operations in Bartlesville. The district court denied the motion.
The district court granted summary judgment to Phillips in an
order and separate judgment entered on June 8, 1993. In that
order, the district court identified several outstanding motions
from both parties, rendered summary judgment for Phillips on all
issues, and declared all other motions pending at that time to be
moot.
On June 14, 1993, the plaintiffs attempted to have the
Bartlesville plaintiffs join this action. In an order of July 26,
1993, the court denied all motions filed after the entry of final
judgment. The court reserved ruling in its July 26 order on the
defendants' bill of costs, which included a request for attorneys'
fees, and has not ruled on the defendants' bill of costs at this
time.
II.
Plaintiffs stated in their notice of appeal that they were
appealing "the final judgment entered in this action on the 8th day
of June, 1993." In its June 8 order, the court rendered summary
judgment on the original plaintiffs' claims against the defendants,
denied the original plaintiffs' motion for summary judgment, and
held that all other pending motions were moot. The court issued
another order dated July 26, denying all motions filed after the
June 8 order, including the original plaintiffs' attempt to join
the Bartlesville plaintiffs. Because the plaintiffs appealed only
4

the June 8 order, the only issues the plaintiffs perfected for
appeal are the decisions made in that order. The motion to join
the Bartlesville plaintiffs has not been preserved for appeal.
III.
A.
The district court rendered summary judgment because no mass
layoff occurred at the single sites of employment where the
original plaintiffs worked. Whether multiple work locations
constitute a "single site of employment" under WARN is a mixed
question of fact and law. Carpenters District Council v. Dillard
Dep't Stores, 15 F.3d 1275, 1289 (5th Cir.1994). Reviewing de novo
the issue of whether the Houston and Bartlesville employment
locations constitute a "single site of employment", we agree with
the district court and hold that the Houston and Bartlesville
locations were not a single site of employment.
WARN requires covered employers to provide "affected
employees" notice of a mass layoff. "Affected employees" include
"employees who may reasonably be expected to experience an
employment loss as a consequence of a proposed plant closing or
mass layoff by their employer." 29 U.S.C. � 2101(a)(5). A "mass
layoff" is defined as any employment loss at a single site of
employment that involves one-third of the employees at that site
and at least fifty employees, or at least 500 employees. 29 U.S.C.
� 2101(a)(3); 20 C.F.R. � 639.3(c). If a "mass layoff" occurs,
the employer must provide written notice to each affected employee
at least sixty days prior to the layoff and inform various state
5

and local officials of the mass layoff. 29 U.S.C. � 2102. An
employer who violates WARN is liable for back pay, lost benefits,
civil penalties, and attorneys' fees. 29 U.S.C. � 2104.
1.
The statute does not define a "single site of employment."
The rules promulgated by the Secretary of Labor provide that
"[n]on-contiguous sites in the same geographic area which do not
share the same staff or operational purpose should not be
considered a single site." 20 C.F.R. � 639.3(i)(4). Groups of
structures within a campus or industrial park, or separate
facilities across the street from one another, may be considered a
single site of employment. Two plants on opposite sides of a town
do not constitute a single site of employment if they employ
different workers. See 20 C.F.R. � 639.3(i)(1), (4).
The Houston and Bartlesville layoffs cannot be aggregated to
bootstrap the Houston plaintiffs over the WARN minimum required for
a mass layoff. The regulations indicate that two plants across
town will rarely be considered a single site for purposes of a mass
layoff. It is not plausible, under any reasonable or good-faith
reading of the regulations, that the Houston and Bartlesville
plants--located in different states and hundreds of miles
apart--could be considered a "single site" for purposes of WARN.
Employees were not rotated between the different sites, and
the locations did not share staff and equipment. See 20 C.F.R. �
639.3(i)(3). No other "unusual circumstances" have been alleged
that would support classifying the two plants as a "single site."
6

See 20 C.F.R. � 639.3(i)(8); Carpenters, 15 F.3d at 1290. As the
Bartlesville and Houston sites are distinct, they may not be
aggregated in order to meet the minimum employee requirements of
WARN. 20 C.F.R. � 639.3(i)(1); International Union, United Mine
Workers v. Jim Walter Resources, Inc., 6 F.3d 722, 724-27 (11th
Cir.1993). The Bartlesville layoffs, accordingly, are irrelevant
to the issue of whether the Houston employees were entitled to
notice under WARN.
No mass layoff occurred at the single sites of employment
where the original plaintiffs worked. Five of the plaintiffs
worked at HCC's operations in three different locations in and
around Houston. HCC laid off twenty-seven employees over a
ten-month period. One of the named plaintiffs worked for PGHC in
Houston; PGHC laid off eight employees who worked at that site.
The layoffs at HCC and PGHC were not mass layoffs as defined by the
Act, as the number of employees laid off did not meet the
fifty-employee minimum. Thus, the Houston employees were not
entitled to WARN notification.
2.
Williams contends that the mass layoff in Bartlesville
triggered the applicability of WARN, requiring that notice be given
to those laid off in Houston. See Department of Labor Comments, 54
Fed.Reg. 16042, 16046 (1989). Even if we assume that these
comments have legal effect, they apply only if the employees at the
single site suffering the mass layoff are relocated to other sites,
thereby "bumping" employees at those sites. Moreover, those likely
7

to be bumped must be individually and reasonably identifiable at
least sixty-five days before the bumping occurs. Id.
A WARN event at the first site will trigger a WARN event at
the second site only if a sufficient number of workers are bumped
at the second site to trigger WARN independently. Plaintiffs have
not alleged that any bumping occurred and have ignored the plain
language of the department's comment limiting it to bumping
situations.
3.
Over 500 employees were laid off in Bartlesville. Williams
contends that Phillips's notice to those employees was defective.
This claim fails for two reasons. First, the claims of the
Bartlesville plaintiffs are not properly before us, as they failed
to perfect their appeal. Second, even if we had jurisdiction,
Phillips's alleged acts did not violate WARN.
There is no dispute in the record that Phillips provided
sixty-day written notices to all employees laid off in
Bartlesville. For some of the employees laid off, Phillips
continued to pay their base pay and benefits during all or part of
the sixty-day notice period but placed them on "excused leave with
pay." The employees were not terminated at this time. The notices
submitted by Phillips stated that the layoff date was at least
sixty days after the notice date. There is no evidence to support
the assertion that Phillips immediately terminated the individuals
laid off in Bartlesville.
Moreover, the premise of Williams's argument is of
8

questionable validity. Excused leave with pay and benefits, with
no corresponding duty to work, cannot harm an employee. WARN was
intended to provide employees with notice so that they could adjust
to the layoff and locate other work. Fully-paid excused leave
complies with these purposes.
B.
The district court also rendered summary judgment for
Phillips because the plaintiffs had signed releases covering the
allegations made in their complaint. The plaintiffs filed a
cross-motion for summary judgment contesting the validity of the
releases. The district court properly granted Phillips's motion,
thereby rejecting plaintiffs'.2
Normally the release of federal claims is governed by federal
law. See, e.g., O'Hare v. Global Natural Resources, Inc., 898 F.2d
1015, 1017 (5th Cir.1990) (Age Discrimination in Employment Act
("ADEA")); Rogers v. General Elec. Co., 781 F.2d 452, 454 (5th
Cir.1986) (title VII of the Civil Rights Act of 1964). Public
policy favors voluntary settlement of claims and enforcement of
releases, Rogers, 781 F.2d at 454, but a release of an employment
or employment discrimination claim is valid only if it is "knowing"
and "voluntary," Alexander v. Gardner-Denver Co., 415 U.S. 36, 52
n. 15, 94 S.Ct. 1011, 1022 n. 15, 39 L.Ed.2d 147 (1974). Once a
party establishes that his opponent signed a release that addresses
2Although this discussion is unnecessary to the issue of
whether WARN was violated, given our holding in part III.A.,
supra, we include it as a further indication that this action is
frivolous.
9

the claims at issue, received adequate consideration, and breached
the release, the opponent has the burden of demonstrating that the
release was invalid because of fraud, duress, material mistake, or
some other defense. We examine the totality of circumstances to
determine whether the releasor has established an appropriate
defense. O'Hare, 898 F.2d at 1017.
1.
Each original plaintiff signed a release shortly after his or
her termination of employment. The releases stated that signing
the release was a condition to participation in the company's
enhanced supplemental layoff pay plan, advised the employee to
consult an attorney, gave ample time to consider the release, and
specifically covered all claims relating to the individual's
employment or layoff. The Bartlesville plaintiffs signed similar
releases.
The requirements of WARN pertain to an individual's employment
and termination, issues addressed in the releases. Phillips
provided enhanced benefits for those employees who signed the
releases. These benefits were in addition to the basic severance
plan benefits that the employees would have received regardless of
whether they had signed the releases. The original plaintiffs are
making claims on matters addressed in their release, and the
Bartlesville plaintiffs attempted to join the lawsuit that involved
claims on matters addressed in their release. Thus, all elements
of a valid release are present.
Williams has provided no credible evidence that the releases
10

were obtained by fraud or duress. There is no genuine issue of
material fact that the releases were valid.
Williams contends that the releases were invalid because they
did not mention WARN. This argument is meritless. There is no
obligation under WARN or the common law for the defendants to
mention WARN for the releases to be valid. The releases stated
that they included all claims relating to the "time of my
employment or to my layoff...." WARN applies to layoffs and the
releases addressed all claims related to the plaintiffs' layoffs;
thus, the releases barred WARN claims. See Fair v. International
Flavors & Fragrances, Inc., 905 F.2d 1114, 1117 (7th Cir.1990)
(holding that a release of claims relating to employment barred
claim under Employee Retirement and Income Security Act of 1974
("ERISA")); Stroman v. West Coast Grocery Co., 884 F.2d 458, 461
(9th Cir.1989), cert. denied, 498 U.S. 854, 111 S.Ct. 151, 112
L.Ed.2d 117 (1990); Franz v. Iolab, Inc., 801 F.Supp. 1537, 1543
(E.D.La.1992) (holding that a release of all claims barred wrongful
discharge and ERISA claims).
Plaintiffs also argue that the waivers did not comply with the
Older Workers Benefit Protection Act ("OWBPA"), 29 U.S.C. � 626(f).
Plaintiffs have asserted no age discrimination claim, and their
proffered analogy between WARN and the ADEA does not survive
scrutiny. The OWBPA places specific requirements on waivers of age
discrimination claims in order for them to be considered knowing
and voluntary. This statute is a change from the common law, and
there is no similar obligation imposed on employers under WARN.
11

Williams contends that the waivers are invalid under a
totality of the circumstances test. She claims that the
combination of five factors makes the waivers invalid, but she
identifies no precedent suggesting that these factors are
dispositive. Williams carried the burden to demonstrate that there
was a genuine issue of material fact on a defense to the validity
of the releases. She was obligated to produce some evidence of
fraud, duress, or other basis for holding the release invalid. See
Widener v. Arco Oil & Gas Co., 717 F.Supp. 1211, 1215
(N.D.Tex.1989). She has not done so, thus summary judgment was
appropriate.
Even if we accept Williams's statement of the totality of
circumstances test, she cannot prevail. She identifies several
elements to consider: (1) a plaintiff's education and business
experience; (2) the role of each plaintiff and class member in
deciding the terms of the release; (3) the clarity of the
agreement and all related documents referred to in the releases;
(4) whether each plaintiff and class member was represented by or
consulted with an attorney; and (5) the amount of time each
plaintiff and class member had possession of or access to the
release before signing it.
Concerning the plaintiffs' education and business experience,
there no evidence suggesting that they could not read or understand
the releases. The cases relied upon by the plaintiffs are
distinguishable by whether the individual who signed the release
understood the claims released. There is nothing in the record
12

establishing a genuine issue of material fact that the plaintiffs
did not know what they were doing.
Plaintiffs argue that none of them negotiated the terms of the
releases. There is no evidence that plaintiffs were denied an
opportunity to negotiate, nor that they were given a "take it or
leave it" offer. The releases informed each employee that he
should consult a lawyer and allowed a reasonable period, in most
instances up to forty-five days, to consider the releases. The
plaintiffs signed the releases and never asserted in their
declarations that Phillips had precluded them from negotiating.
There is no evidence sufficient to create a genuine issue of
material fact.
The releases were clear, simple, and easily understood. The
release precluded all claims related to the plaintiffs'
"employment" or "layoff." This is not technical jargon, and it
covers the plaintiffs' WARN claims. The plaintiffs do not indicate
what provisions could have been incomprehensible to them, as they
were written in plain English. There is also no evidence of duress
that could have forced them to sign involuntarily.
The plaintiffs also claim that the releases should be
invalidated because the defendants presented no evidence that each
plaintiff and class member actually consulted with an attorney.
The releases signed by the plaintiffs stated:
You should thoroughly review and understand the effect of the
release before signing it. To the extent that you have any
claims covered by this release, you will be waiving
potentially valuable rights by signing. You are also advised
to discuss this release with your lawyer.
13

Thus, defendants advised the plaintiffs to consult a lawyer.
Plaintiffs suggest that Phillips should have offered to supply a
lawyer, but they offer no authority imposing this duty. Even
without signing the releases, plaintiffs were entitled to
substantial layoff benefits that could have been used to finance a
lawyer, either individually or jointly. It is not Phillips's fault
that the plaintiffs chose not to consult a lawyer after being
advised to do so. Plaintiffs do not contest the final element of
the test, as they were given as much as forty-five days to consider
the releases.
2.
Even if a release is tainted by misrepresentation or duress,
it is ratified if the releasor retains the consideration after
learning that the release is voidable. A person who signs a
release, then sues his or her employer for matters covered under
the release, is obligated to return the consideration. Offering to
tender back the consideration after obtaining relief in the lawsuit
would be insufficient to avoid a finding of ratification. Grillet
v. Sears, Roebuck & Co., 927 F.2d 217, 220-21 (5th Cir.1991).
For signing the releases, the original plaintiffs as a group
received $210,853.65 in consideration in an enhanced plan benefits
and $56,632.38 in basic plan benefits. The original plaintiffs did
not return the consideration to the defendants, even after making
claims that the releases were voidable. Thus, the plaintiffs
ratified the releases even if, arguendo, they were not knowingly
and voluntarily signed. Grillet, 927 F.2d at 220.
14

IV.
Plaintiffs argue that the district court abused its
discretion by not giving them time to conduct discovery and prepare
affidavits to support their opposition to the defendants' motion
for summary judgment. Plaintiffs complain that the court did not
rule on their motion for continuance. This is incorrect. The
court noted that the motion for continuance was outstanding and
determined that all pending motions other than the defendants'
summary judgment motion were moot. As a result, the court denied
the continuance.
Summary judgment was awarded because plaintiffs did not work
at single sites of employment and had released their claims. These
were pure issues of law. There are no issues of fact that would
require additional discovery. Thus the court did not err by
refusing to grant a continuance.
Plaintiffs also complain that Phillips did not answer
discovery based upon the events in Bartlesville. Because all the
plaintiffs worked in Houston, however, events in Bartlesville were
irrelevant to their case. Thus, no further discovery was
necessary.
Plaintiffs have asserted a number of other discovery requests.
But they have not explained how these discovery matters are
relevant to any issue in the case. Moreover, to the extent these
discovery materials may be relevant, plaintiffs have not indicated
what information they seek that would be sufficient to create a
genuine issue of material fact. Denial of these requests was
15

appropriate.
Plaintiffs also assert that the district court abused its
discretion by denying their motion to join new parties. The
plaintiffs made this motion before the district court rendered
summary judgment but did not identify the parties they sought to
add until after judgment was entered. The court acted properly in
denying the motion, as plaintiffs identified no specific parties
that needed to be added by the time the court ruled on the motion.
There was no basis for the district court to grant the motion
without having specific parties to add.
V.
Plaintiffs' attorney, Julius J. Larry, III, contends that
Phillips's outside attorney, Kerry E. Notestine, engaged in
improper ex parte communications with the district judge, the
magistrate judge, and their law clerks. The record is singularly
devoid of evidence that the contacts were improper. Moreover,
these same accusations were briefed and rejected in the district
court. Lacking any evidence that the contacts were improper, the
accusations of plaintiffs' counsel are scurrilous, frivolous, and
contrary to the duties of an officer of the court. Larry's legal
arguments are also frivolous and independently deserving of
sanctions.
A.
Larry seeks to mislead this court about the circumstances of
the alleged improper contacts. He attempts to prove his conclusion
of unethical conduct by Phillips's counsel by seriously misquoting
16

defendants' counsel's time records, omitting important facts from
the description of counsel's activities, and drawing unsupported
conclusions. The defendants responded to these accusations in the
district court. Serenely undeterred by his lack of success, Larry
has renewed his personal attack against defendants' counsel in this
court.
This issue arose from defendants' submission of a bill of
costs in the district court. In their bill of costs, the
defendants moved for attorneys' fees because the district court
specifically found the plaintiffs' lawsuit was frivolous. The
defendants attached billing records summarizing the activities
performed by their counsel on the case. In their appeal brief,
plaintiffs have excerpted sections identifying five contacts
between Notestine and the case managers to Judges Harmon and Stacy
relating to scheduling matters and a discovery conference. The
plaintiffs admit, as they must, that counsel may communicate with
these individuals. Notestine also had one telephone conversation
with Vivian Craft, Judge Stacy's law clerk, but that conversation
was initiated by Craft and was for a legitimate purpose.
Reviewing each of the allegedly improper contacts, Larry's
duplicity in imputing unethical conduct to Notestine becomes
apparent. For instance, in his brief on appeal, Larry reproduces
the first contact as follows:
4/14/93
1.80 (Hours)
Telephone conference with clerk to
Judge Harmon.
-----
The record indicates that this excerpt should read:
17

4/14/93
1.80 (Hours)
Telephone conference with clerk to
Judge Harmon re: status; telephone conference with Rob Fries re:
same; preparation of discovery response to sent to other side;
review of reply to defendants response to plaintiff's motion for
leave to supplement their complaint; transmitting same to client.
-----
Comparing Larry's excerpt with the accurate report, Larry plainly
intended to mislead this court into believing that Notestine spoke
with for almost two hours with Judge Harmon's law clerk. The
context of the full billing report, however, indicates that the
phone conversation occupied only a small portion of the time.
Moreover, because this entire issue was already briefed in the
district court, Larry knew that Notestine's communication was
actually with Judge Harmon's case manager, not any law clerk.
Larry admits that contacts with a case manager are permissible.
Despite recognizing that the time sheet should read "case manager"
rather than "law clerk," he doggedly and irrelevantly continues to
argue that law clerks should not communicate with parties.
Larry reproduces the second contact as follows:
5/5/93
.20 (Hours)
Telephone conference with clerk to
Judge Stacy.
-----
In full, the time sheet actually reads:
5/5/93
.20 (Hours)
Telephone conference with clerk to
Judge Stacy re: hearing requested.
-----
Again, Larry is aware that this contact was actually with Judge
Stacy's case manager, not her law clerk. The substance of the
conversation dealt with Judge Stacy's impending maternity leave and
18

whether the parties would be able to have a discovery and motion
conference before she went on leave.
The third contact is identified by Larry as follows:
5/14/93
.40 (Hours)
Telephone conference with Vivian
Craft, law clerk to Judge Stacy.
-----
The full text of the time sheet reads:
5/14/93
.40 (Hours)
Telephone conference with Rob Fries
re: status; telephone conference with Vivian Craft, law clerk to
Judge Stacy, re: discovery conference.
-----
Vivian Craft was Judge Stacy's law clerk. But this contact was
initiated by her, not by Notestine, and the time records indicate
that the conversation related only to the discovery conference.
According to Larry, as set forth in his appellate brief, the
fourth communication reads:
5/19/93
.60 (Hours)
Telephone conference with clerk to
Judge Harmon re: resolution on motions.
-----
Again, reality differs dramatically from Larry's brief:
5/19/93
.60 (Hours)
Telephone conversation with clerk to
Judge Harmon re: resolution of motions; telephone conference with
Rob Fries re: same.
-----
Again, "clerk to Judge Harmon" refers to her case manager, not her
law clerk, and there is nothing improper about contacting a case
manager for this purpose.
Larry's characterization of the fifth contact is probably the
most egregious misstatement of all:
19

4/28/93
1.30 (Hours)
Telephone conference with Judge
Harmon.
-----
In reality, the record reads as follows:
4/28/93
1.30 (Hours)
Telephone conference with Rob Fries
re: rule 26(f) conference; research re: same; review of motion
to add parties; transmitting same to client; telephone conference
to Judge Harmon re: same; telephone conference with Rob Fries re:
same.
-----
Larry obviously hopes to mislead this court in a number of ways
with his characterization of this time record. First, he implies
that Notestine spoke directly with Judge Harmon for 1.3 hours.
Defendants never spoke to Judge Harmon about the case and never
attempted to do so, much less for a full 1.3 hours. As Phillips's
counsel explained long ago, the reference to a "telephone
conference to Judge Harmon" was an abbreviated reference or
typographical error relating to a conversation with Judge Harmon's
case manager, not the judge herself, about a rule 26(f) conference.
In advancing his claim, Larry has attempted to mislead the
court by blatantly misrepresenting the record. Trying to sell this
court on his conspiracy theories, he has attempted to put a veneer
of impropriety on innocent contacts by quoting selectively from
Notestine's time sheets and even mischaracterizing the parties
involved. We will not stand by idly and allow an attorney to waste
the time of this court and maliciously denigrate the reputations of
judges and other officers of the court.
Moreover, Larry has not explained, either in his brief or in
his ample opportunity at oral argument, why he has raised this
20

issue at all. He has asked for no remedy, such as overturning the
judgment. His only discernible motive is to cast brickbats and to
"poison the well" by tattling on his opponent. Such motives hardly
justify his baseless allegations and his attempt to lie to this
court regarding what is in the record.
Upon determination that an appeal is frivolous, we "may award
just damages and single or double costs to the appellee."
FED.R.APP.P. 38. Larry has attempted to mislead this court for no
legitimate end. He has wasted the time and energy of opposing
counsel and of this court. As a result, we exercise our power to
impose sanctions on plaintiffs and their counsel for filing a
frivolous appeal.
B.
Importantly, the plaintiffs' assertions, made through Larry,
are not based upon any reasonable or good-faith reading of
applicable law. They are utterly baseless and bizarre. The
district court explained this in its comprehensive order granting
summary judgment. At that point, any attorney should have advised
his clients of the loss and urged them to pursue the matter no
further.
Seven pages of Phillips's fifty-page brief were required to
rebut Larry's misguided charges of misbehavior. The plaintiffs'
challenge to the validity of the waivers rests on a frivolous
theory equating WARN with the OWBPA. Larry forced Phillips to
defend against the claims of the Bartlesville plaintiffs, who were
not even properly parties to this appeal. His argument for the
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applicability of WARN rests on comments by the Labor Department
applicable only to employees bumped from their jobs by senior
employees, a situation that is not alleged to apply here. Finally,
although we have not reached the merits of the issue, his attempt
to impose individual liability upon Silas and Allen lacks any
colorable foundation in the language or structure of WARN.
C.
"[C]osts and attorneys' fees [under rule 38] are merited for
a frivolous appeal the result of which is obvious from the
comprehensive and decisive exposition of the law by the judge
below." Coghlan v. Starkey, 852 F.2d 806, 810 (5th Cir.1988) (per
curiam) (footnote omitted). In response to inquiry by the court,
defendants' counsel documents $32,765.50 for attorneys' fees and
$3,039.22 in costs associated with responding to plaintiffs'
appeal. Other than charges for in-house legal fees, these are fees
actually billed to defendants by outside counsel.
The plaintiffs have not disputed the reasonableness of these
fees. We have held that fees imposed as a sanction need not be
fully compensable. See Atwood v. Union Carbide Corp., 850 F.2d
1093, 1094 (5th Cir.1988) (per curiam). We need not decide whether
the fees claimed here are justified, for we conclude that fees of
$20,000 are supportable and will serve adequately as a sanction.
For this reason, we also need not decide whether the in-house legal
fees of $5,607.00, included in the amount claimed, may be
recovered.
D.
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Given the generally frivolous nature of the appeal,
exacerbated by Larry's scurrilous attacks on Phillips's counsel and
the district court, pursuant to rule 38 we order the original
plaintiffs, Larry, and Justice Center-Houston, which is of counsel
on appeal, to pay Phillips's attorneys' fees of $20,000.00 and
attorneys' costs of $3,039.22, plus double taxable costs on appeal.
We also warn plaintiffs that further vexatious filings in this
case, including any frivolous petition for rehearing or suggestion
of rehearing en banc, will subject the plaintiffs and their counsel
to further sanctions and/or discipline.
The appeal is DISMISSED as frivolous. See 5TH CIR.R. 42.2.

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