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NJ Transit seeks gag order against attorney in racial discrimination case

By Matt Friedman
Source: Politico

09/23/2020 11:46 AM EDT

NJ Transit is seeking a gag order against a high-profile New Jersey attorney who’s representing a woman suing the agency for racial discrimination, saying a tweet the attorney she recently posted threatens to taint the jury pool.

The request for a gag order comes as New Jersey government has come under heavy criticism for requiring employees who complain of harassment and discrimination to sign confidentiality agreements, and after Gov. Phil Murphy signed a law prohibiting employment or contract agreements that bar “concealing the details relating to a claim of discrimination, retaliation, or harassment.”

“This has never happened to me before and I’ve been involved in high-profile cases for 40 years,” the attorney, Nancy Erika Smith, who frequently represents whistleblowers, said in an interview.

At issue is a Sept. 8 tweet from Smith.

“A race discrimination & retaliation trial scheduled for November in Essex County will show why PTC [positive train control] is delayed: corrupt & dysfunctional management refused to give the PTC job to the most qualified person- leaving it vacant for months” Smith wrote, linking to an op-ed in The Record that was critical of the agency.

On Sept. 17, NJ Transit filed a request in Superior Court in Essex County that a judge bar Smith “from making any further extrajudicial statements on social media and/or to the press during the pendency of this lawsuit concerning NJT and/or Defendants’ character, credibility or reputation.”

“As a well-known attorney, Ms. Smith’s public statements run afoul of the rules that govern attorney ethics and this Court and they have the ability to potentially taint and improperly influence future jurors,” attorney Karol Corbin Walker, who represents NJ Transit, wrote.

Walker went further, saying the tweet was “a blatant and intentional attempt on Ms. Smith’s part to taint potential jurors against Defendant in the upcoming trial” and that Smith’s client should have to pay attorneys fees and other expenses incurred by the gag order request.

The lawsuit dates back to January 2017, when Smith’s client, Pia Wilson, a high-ranking NJ Transit supervisor, filed her second discrimination lawsuit against the agency. Wilson had been the lead plaintiff in a 2014 racial discrimination lawsuit against NJ Transit that was settled for $3.65 million. The 2017 lawsuit claims Wilson was punished for bringing the case. A trial date is set for November, Smith said.

Neither Walker nor the NJ Transit press office immediately responded to phone calls and emails seeking comment.

Smith said she is confident the gag order request will fail, and argued it’s against the law to try to keep her quiet.

“It’s outrageous when companies try to shut victims of discrimination up. It’s even more outrageous when the government does it. And in New Jersey, it’s specifically against the law,” Smith said.

Smith said her tweet referred to allegations in a lawsuit that are already public.

“If it’s public, I can discuss it. I can talk about my case. And a public body trying to shut me up is truly extraordinary,” Smith said, adding that prosecutors often hold press conferences to discuss ongoing cases.

“[Attorney General Gurbir] Grewal has press conferences. Every prosecutor does,” she said. “You want to talk about affecting a jury pool?”

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