Happy Flag Day to you. June 14 is never a happy day for me. My own lot really has nothing to do with Flag Day, but rather the date. Flag Day stands as the annual reminder of certain past events I wish could just stay in the past.
First, let’s tackle Flag Day itself. Flag Day is relegated to one of the lesser “holidays” of the year. Many simply forget about Flag Day completely and wonder why a number of American flags pop up in June until someone declares: “Oh yeah. It is Flag Day.” I am not aware of anyone who gets the day off from work for Flag Day. I am not aware of folks who throw Flag Day parties. I would wager that if Americans listed their Top Ten Holidays, Flag Day would rarely make the cut.
In fact, Flag Day is technically not a holiday. In 1916, President Wilson issued a proclamation officially establishing June 14 as Flag Day. In 1949, Congress established June 14 as National Flag Day, but failed to recognize this patriotic 24 hours as a holiday.
Great dispute exists regarding the origins of Flag Day. Despite uncertainty as to who initiated Flag Day or where it began, June 14 clearly recognizes the June 14, 1777 Flag Resolution passed by the Second Continental Congress. That Congress declared:
“Resolved, That the flag of the thirteen United States be thirteen stripes, alternate red and white; that the union be thirteen stars, white in a blue field, representing a new constellation.”
Two early references for a national Flag Day date back to to the 1800s. In 1861, George Morris of Hartford, Connecticut proposed June 14 as Flag Day to honor the original adoption of the American flag. The City of Hartford observed Flag Day in 1861 as a patriotic day with prayers for preservation of the Union. Yet, that 1861 event appears as a “one and done” day with no further annual Flag Day celebration or tradition.
The 1880s witnessed the efforts of the “Father of Flag Day”, Bernard Cigrand. Cigrand, a school teacher from Wisconsin, proposed an annual observance of the U.S. flag on June 14 to promote patriotism and respect for the flag. He traveled the region gaining support in newspapers with his proposal. Cigrand organized his efforts through establishment of the American Flag Day Association and National Flag Day Society, serving as president of both organizations he founded. Cigrand claimed to have given well over 2,100 speeches in favor of establishing Flag Day.
Others pushed for June 14 a Flag Day, but credit rests with the Benevolent and Protective Order of Elks who made Flag Day official. In 1907, the Elks decreed June 14 as Flag Day with every Elks Lodge obligated to observe Flag Day. President Wilson took note and saw an easy political score with the Presidential Proclamation of Flag Day in 1916.
OK. So why does Flag Day bother me? It is another anniversary of sorts in our house. Actually, it is the anniversary of us moving into this house years ago. For the record, we love our house. It is comfortable. The layout is ideal for us. It provides all the feelings of warmth and security desired in a house. Even with the house now way too large as we enter the empty nester phase, moving is not seriously in the cards for consideration.
The June 14 move date itself remains the day of which should not be spoken – but somehow is annually reminded to me.
As with Flag Day history, there exists a marital history regarding moving into this house. Years and years ago now, when our three boys were ages 9, 7 and 2, we closed on this newly constructed house and arranged to move across town to our new home. Moving date became set on June 14 which fit perfectly for exiting our former house. Pre-packing went on for days in anticipation of the arrival of the movers on June 14. Simply moving across town may not be quite as traumatic as moving across country, but not by much. The stress and logistical problems apply to each such move. Managing three boys below age 10 with one still not potty trained just added to the chaos. But, we were excited and determined, at least until late in the afternoon of June 12.
At that time, I worked as the in-house counsel for a global manufacturing company with responsibilities extending to all litigation matters around the world – with 90% of all litigation in the United States. Among the myriad of litigation cases pending at that time was a “wage and hour” class action case in Puerto Rico. The company operated four factories on the island with the class action seeking in excess of $50 million for alleged improper calculation of work time for employees.
Puerto Rico was then, and remains today, a worker-friendly venue for claims against U.S. companies doing business on the island. As one trade off for the amazing tax breaks for the corporations, the Puerto Rico legislature took care of the Puerto Rico employees through these worker-friendly laws. That fact, combined with amazingly complex Puerto Rico wage and hour laws, provided many “gotcha” traps even for those employers who genuinely sought to comply with all laws and regulations. Oh, and plaintiffs’ lawyers would be awarded substantial attorneys’ fees if even a single violation could be established in a wage and hour dispute. These cases were free money for the plaintiffs’ bar.
The ultimate exposure for the company would not be the $50 million as demanded, but a realistic exposure range extended well into 8 figures. Prior settlement efforts through mediation proved fruitless. Ultimate case outlook appeared rather poor for the company.
Late on the afternoon of June 12, I received a call from the court-assigned mediator “instructing” that mediation would resume the morning of June 14. Now, the mediator was a retired federal judge so he felt it well within his rights to “instruct” (i.e., order) the mediation to resume in less than 48 hours. I explained my moving conflict and gently and carefully reminded the mediator the he cannot compel us to proceed, especially on such impossibly short notice. The mediator tolerated no such pushback and bluntly told me I had to be in Puerto Rico the day after next.
I actually liked the mediator. While he was on the island for decades, we shared a strong Boston connection. Puerto Rico is part of the U.S. 1st Circuit federal court system which includes Massachusetts. The mediator began his days as a federal judge in Boston and was later transferred to Puerto Rico. Our professional circles intersected in Boston where we found quite a number of common friends and interests. The mediator looked as tough as a Boston “Southie” and acted as a gruff Ernest Borgnine. He cared not about our personal connection or conflict and told me to be there, on time, as there arose a substantial breakthrough.
I promptly informed my boss, the General Counsel (GC), of this dilemma. The GC called out for his assistant to immediately make travel plans for us both to Puerto Rico. The GC saw opportunity in the mediator’s vague assurance of a breakthrough and wanted to be involved to place this risk behind us. He met my suggestion that he fly solo on this settlement mission with laughter noting that only I knew the facts and I possess at least some understanding and appreciation of the bizarre Puerto Rico laws. Also, the GC reminded me that I was a licensed mediator myself and I know how to resolve cases. Oh, great, to be so needed.
The news of my valued legal expertise and skills to settle cases did not go over so well at home. Sorry, Honey. Instead of packing to get ready to move, I will leave you with three young children to fly off to a tropical island. Oh, and I cannot be here for the big move day we planned for weeks. Do you think you can give me a ride to the airport?
June 14 arrived with me in Puerto Rico at mediation in the old courthouse. The mediator was correct in estimating the appetite of the plaintiffs’ counsel to settle. The week before, the plaintiffs’ firm rather surprisingly lost a significant case it had on contingency fee. The law firm lost millions of dollars in expenses it put up in that case. Local legal gossip had this firm disbanding due to that loss. These lawyers desperately and quickly needed something in the “win” column. Enter our wage and hour case.
The mediator used 100% of his Ernest Borgnine charm in beating down the plaintiffs’ lawyers. They caved fairly quickly but advised that the lead plaintiffs possessed expectations which could preclude agreement. The mediator “ordered” those plaintiffs to appear at the mediation after lunch. They complied.
The mediator explained that the plaintiff lawyers did a great job in securing the best offer and advised the plaintiffs to accept the offer. A few holdouts remained. In a surreal scene out of a Quinton Tarantino movie, the mediator instructed the holdouts to carefully consider the offer without interference. The mediator knew of the spot for careful consideration – the former jail cells in the basement of the old courthouse. As he placed the plaintiffs in the jail cells, the mediator instructed them that when they were ready to accept the offer, they can call back upstairs to us. Surprise! We reached full agreement for pennies on the dollar.
We wrapped up settlement details fairly well into the evening and returned to the hotel. The GC inquired where we could get some food at this late time with the desk clerk advising that only the rooftop Mexican bar and restaurant was still open. To the rooftop to celebrate our victory!
We each had a margarita to celebrate stealing a settlement and dodging a litigation bullet. The tequila provided enough courage to allow me to call home to see how the big June 14 move progressed. Despite sitting in 80 degrees with a tropical breeze, it felt quite chilly when the phone was answered. I sounded genuinely sorry and recognized the thin ice I needed to traverse. As the chill began to defrost ever so slightly, a strolling Mariachi band struck up a tune at the next table. The GC then shouted over the music to the bartender instructing him to bring us two more margaritas.
Click. The call ended and June 14 became a day of infamy in our house.
Each year since then, I make no mention of Flag Day or June 14. Each year since then, I am reminded of my spousal shortcomings associated with our move into our house. The good news is that after all these years and all the blessings in this house, our own little Flag Day is met with slightly more humor each year. This year, I was reminded that the anniversary of moving into the house is Flag Day, but I cannot celebrate until June 15 as I did not arrive at our house until that date. We are making progress!
In estate planning, every client brings their own Flag Day. Everyone has their own circumstance they made special or unique for themselves over time. You can celebrate such events through a memorial or remembrance gesture in your estate plan. Or, as in my case, you can simply hope that instead of raising Flag Day to a federal holiday, your own Flag Day gets forgotten and its name should never be spoken.
