In Airline Potty Camera Cases, Lawyers Should Have Waived This Argument

May 28, 2024 / 1 Comment

The late New York attorney, Herald Price Fahringer

Many years ago while covering the trial of Claus von Bulow for the attempted murder of his heiress wife, I read a description of his lawyer that I have never forgotten. In an article for New York Magazine, Herald Price Fahringer was described as “silver-haired with a tongue to match”.

Kudos to the talented writer, Lally Weymouth for that turn of phrase. Fahringer was equally clever. He told the judge at the 1982 trial in Newport, Rhode Island the only thing he would waive during the trial would be his hands.

Fahringer died in 2015 after a 50-year career practicing law. I thought of him though as I read through the scorching criticism of American Airline’s outside counsel in a case where the airline is being sued for the acts of a flight attendant. That employee, Estes Carter Thompson III, 36, is alleged to have secretly and repeatedly taken photos of young girls in airplane bathrooms in 2023.

I like to think that had Fahringer represented the airline he would have waived more than his hands on this one. He might have  waived his client’s right to defend itself by arguing the 9-year-old plaintiff was contributorily negligent and therefore, undeserving of financial compensation.

Unfortunately, that was not what the attorneys did.

In its reply to the civil suit filed in Texas on behalf of the child (identified in the suit as Mary Doe) by attorney Paul Llewellyn, the airline’s outside attorneys at Wilson Elser, wrote that she knew or should have known that the bathroom “contained a visible or illuminated recording device.”

“Defense lawyers always deny everything and raise every canned defense they can out of reflex in their initial answer,” said Andrew “Duke” Maloney a lawyer with the plaintiff’s aviation law firm, Kreindler & Kreindler.” But far more care should have been given by this lawyer and any lawyer in creating the answer in response to the complaint allegations.”

Estes Carter Thompson III

Thompson has been charged with the attempted sexual exploitation of children. Federal law enforcement claimed he possessed videos taken over the course of 8 months, of other girls between the ages of 7 and 14. You can read the creepy details of how he is alleged to have accomplished this, in my previous post on the subject.

But it was Llewellyn’s civil case against the airline that prompted American’s outside counsel to use the contributory negligence defense. Should the case go to trial, American would show that “any injuries or illnesses alleged to have been sustained” by the child, “were proximately caused by Plaintiff’s own fault and negligence”. Small wonder that the rest of the world interpreted that to mean that American was blaming the victim for the alleged acts of one of its flight attendants.

“We do not believe this child is at fault, and we take the allegations involving a former team member very seriously,” the airline wrote in a statement distributed to the media in response. Before the day was out, American had replaced Wilson Elser with a new law firm.

None of the six lawyers I contacted at Wilson Elser in Charlotte replied to questions sent by email. Not the attorneys in the aviation section nor those working for the crisis management team which touts its expertise in “adverse publicity coverage”.

But before placing all the blame on Wilson Elser, let’s be clear. Other factors contributed to the “adverse publicity” heaped on the lawyers and the airline.

Supplementing in-house lawyers with outside counsel is common for most large companies, according to the  Association of Corporate Counsel.

American’s lawyers cannot possibly handle the thousands of legal claims brought against it each year. Who sues? Practically everyone and for practically any reason, it seems.

Passengers get sick or injured or delayed. Someone puts their hand in the seatback pocket and gets stabbed by a needle left by the previous passenger. (Not making that up.) They’re told to put their small dogs in overhead bins and Fifi gets asphyxiated, and I’m not making that up either.

Shareholders, environmentalists, consumer watchdogs, suppliers, government agencies also bring legal actions against airlines. These suits are time-consuming and often mind-numbing, but every last one of them must be handled. Remember, legal is not an airline’s business. Travel is.

For this reason, outside lawyers are given a certain amount of autonomy, said one former airline executive. It keeps the process moving. Where airlines can and do get into trouble is when they lose track of cases like Mary Doe’s. These are the cases that, quite legitimately, trigger public sympathy and outrage or as Wilson Elser puts it, “adverse publicity.”

The airline executive put it bluntly. When you’re an industry that is moving hundreds of millions of people, “Bad shit happens. Like, monthly,” this person told me. A fully loaded-airplane is a slice of society and that means it’s going to get ugly from time to time. “Communication between the lawyers and the executives assigned to maintain the airline’s brand is essential,” was the expert’s conclusion.

So when American Airlines fired those lawyers with the explanation that Wilson Elser’s defense position is “not representative of our airline,” one must ask why American did not provide guidance about how it wanted to approach this young, vulnerable and aggrieved customer. At a minimum, why didn’t American review the filing before it was submitted? That neither inside nor outside lawyers seem to have thought the case delicate enough to consult with the other is, as the kids say, a major fail. They succeeded at reminding everyone of a cringey story set on an American Airlines airplane.

Airlines are as high profile as they are highly scrutinized so thinking through matters that can do so much damage to the company’s reputation ought to be a top priority. In this case, the lawyers waived more than their hands. They waived their responsibility to protect the brand and strengthened Mary Doe’s already powerful case.


On the Horizon, More Lawsuits Against American Airlines for Flight Attendant Potty Pictures

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