Jerry Seinfeld’s sitcom famously portrayed the “Soup Man” as the temperamental owner of a soup stand who would decline to serve customers that did not properly place a soup order. Placing the humor aside, a new lawsuit raises the question as to whether a business can ban a lawyer who has initiated a lawsuit against it.
In a complaint captioned Wigdor v SoulCycle, filed in the New York County Supreme Court, a well-known plaintiff’s attorney, Douglas Wigdor, complains that SoulCycle retaliated against him for representing an employee of the business in a wage and hour lawsuit against the company. Wigdor complains that he was banned from SoulCycle because he initiated the action against it.
Significantly, Wigdor is being represented by another well-known member of the plaintiffs’ bar, Anne Vladeck. It would seem that they have a common interest (more than just to “spin”), but what about the interest and rights of the business owner? Should the owner of a restaurant or retail store have a right to prevent counsel from entering, for example, to solicit business in their establishment? Moreover, if an action is presently pending, does the lawyer risk making him/herself a witness or engaging in improper communication with the owner or manager of the business?
Perhaps, this is all a question of timing. Indeed, Wigdor relies on both New York and California law to assert a claim of retaliation – that he was banned because he initiated an action against SoulCycle. Yet, if Soul Cycle had banned Wigdor before he initiated the action, that conduct could not be “in retaliation” for anything. Moreover, there is a question as to whether the New York Labor Law, which prohibits retaliation against an employee, could even apply to that attorney’s lawyer. New York Labor Law § 215 prohibits retaliation against an “employee,” and states: “No employer … shall discharge, penalize, or in any other manner discriminate against any employee because such employee has made a complaint to his employer…” Id. (emphasis supplied). Yet, no mention of the employee’s lawyer. Indeed, the Courts have regularly explained that the adverse action against an employee constituting retaliation is such an action that “might have dissuaded a reasonable worker from making or supporting similar charges. See Copantitla v. Fiskardo Estiatorio, Inc., 788 F.Supp.2d 253, 303 (SDNY 2011)(emphasis supplied). The references are to an “employee” or “worker” – not counsel.
However, Wigdor’s complaint doesn’t stop with the claim of retaliation. Instead, Mr. Wigdor further boldly complains that “such a ban will operate as a restraint of trade that will inure to the detriment of the public by restricting the available pool of lawyers for individuals contemplating legitimate legal action and deter those potential claimants from seeking representation.” The argument is interesting if not fanciful. At some point a balance needs to be reached where the business owner has an appropriate say in deciding who should not be allowed to patronize his/her business. It seems Seinfeld’s Soup Man has meet Oliver Twist – “Please Sir, can I have some more?”