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March 31, 2014

NYC Firefighters Settle Long-Standing Discrimination Lawsuit


From 1999 until 2005, NBC had a popular crime drama series called Third Watch, which presented a fictional account of the New York City Fire Department (FDNY). While that TV series had a diverse cast, the real FDNY had a difficult time obtaining a more diverse applicant pool; it was actually the least diverse fire department of any major city in the nation. Statistics have shown only 7.4 of firefighters are Black and Latino. Compared to nearby cities, for example, 51 percent of Philadelphia firefighters are people of color and Los Angeles’s fire department consists of 57 percent Black and Latino employees.   


On March 18, 2014, The Center for Constitutional Rights, a nonprofit legal advocacy organization along with the Vulcan Society of Black Firefighters and Levy Ratner, P.C. reached a settlement agreement with the City of New York and the U.S. Department of Justice in a class action lawsuit Vulcan Society v. City of New York. This litigation originated from an Equal Employment Opportunity Commission (EEOC) charge filed by CCR on behalf of the Vulcan Society and three Black firefighter applicants, charging the FDNY with racially discriminatory hiring practices.


The first EEOC charge was filed in 2002 and at that time the NYC Fire Department was 2.9 percent Black. New York City’s Black population makes up 27 percent of New York City. On February 23, 2005, CCR filed a second EEOC charge on behalf of three Black firefighter applicants, Marcus Haywood, Candido Nunez, and Roger Gregg. The chief issue in the case was whether the skills measured by the FDNY’s written exam have any relationship to skills necessary to be a good firefighter—the EEOC and DOJ have concluded that they do not.


On November 29, 2005, the EEOC issued a determination in favor of the individual firefighter applicants, stating “the difference in pass/fail rates is highly statistically significant.” The determination went on to say, “the test’s impact on those who passed shows that the distribution of Blacks by scoring band is the opposite of the distribution of whites . . .  the higher the score, the smaller the proportion of Blacks. . . . 2.6 percent of the top scoring band was Black, while 86.5 percent of it was white.” On January 21, 2010 in the first of several remedial orders in this case, the district court ordered that the City would have to (1) hire as firefighters up to 293 Black and Hispanic applicants who took either the 1999 or 2002 firefighter exams, and give these individuals retroactive seniority and (2) work with the Vulcans and DOJ to develop a new, nondiscriminatory firefighter test.


On August 4th 2010, U.S. District Court Judge Garaufis found that the most recent exam (Exam 6019) is also unlawful under the Civil Rights Act. On August 2011, Judge Garaufis held a three-week trial in federal court in Brooklyn on the question of affirmative injunctive relief and compensatory damages. During this trial, the Vulcan Society and the City called several witnesses to testify about the City’s firefighter recruitment efforts, the firefighter applicant character and background investigation process, the Cadet program, the FDNY’s investigations of workplace discrimination complaints, and issues related to compensatory damages.


The 2014 settlement agreement determined that the department also agreed to commit to ensuring that the pool of future exam takers be proportional to the overall labor market in New York City. Out of over 42,000 people who took the last exam in 2012, over 19,000 were black, Hispanic, or Asian.


This is the most recent case in the thread of similar cases to help improve the firefighter hiring practices and racial makeup in cities throughout the United States. Cases that have paved the way are Griggs v. Duke, Ricci v. DeStefano, and Lewis v. Chicago.


Keywords: litigation, minority trial lawyer, New York City Fire Department, firefighters, discrimination, applicant pool, hiring practices, racial makeup, Vulcan Society v. City of New York, EEOC, workplace discrimination, settlement


Janice Arellano, student, Temple University Beasley School of Law, Philadelphia, PA


 

March 28, 2014

Heightened Focus on CFPB in Response to Discrimination Allegations


Over the past month, alleged discrimination at the recently created Consumer Financial Protection Bureau (CFPB) has come into the focus of lawmakers.  The CFPB is a federal agency formed in 2011 in response to the financial crisis in 2007–08. It is responsible for protecting consumers by overseeing financial entities like banks and debt collectors and operates as a unit within the Federal Reserve with ties to the U.S. Treasury Department.


During its short life, it has seen a fair amount of controversy including legal challenges to its formation and to the appointment of its director, Richard Cordray. Even more recently, the House debated whether to replace the agency’s single director with a five-person commission and change its funding mechanism.


Now, according to accusations made earlier this month, the CFPB is in the spotlight because of alleged discrimination against its minority employees. Reports showed that the agency was ranking white employees “distinctly better” than African American and Hispanic employees.  Whites were twice as likely to receive top performance ratings.


On Friday March 21, the CFPB said it was increasing efforts to create a more diverse and fair work environment within the agency. Cordray sent an email to the agency’s staff stating “[w]e must focus more carefully on how we address diversity and inclusion not only in hiring and contracting, but in our day-to-day treatment of one another.”


In a letter dated March 24, Democratic members of the House’s Financial Services Committee requested an investigation into the alleged discrimination. The letter asked “that the Office of Inspector General immediately exercise its independent oversight authority over the bureau’s operations, to detect whether any personnel practices and policies have created an unfair or discriminatory workplace for minorities and women employed at the CFPB.”


A subcommittee of the Financial Services Committee, the Oversight and Investigations Subcommittee, is to hold a hearing soon focusing on whether CFPB employees were discriminated or retaliated against.


Keywords: litigation, minority trial lawyer, CFPB, Richard Cordray, discrimination, minority employees, diversity, workplace environment


Joseph M. Hanna, Goldberg Segalla, Buffalo, NY


 

March 28, 2014

Heightened Focus on CFPB in Response to Discrimination Allegations


Over the past month, alleged discrimination at the recently created Consumer Financial Protection Bureau (CFPB) has come into the focus of lawmakers.  The CFPB is a federal agency formed in 2011 in response to the financial crisis in 2007–08. It is responsible for protecting consumers by overseeing financial entities like banks and debt collectors and operates as a unit within the Federal Reserve with ties to the U.S. Treasury Department.


During its short life, it has seen a fair amount of controversy including legal challenges to its formation and to the appointment of its director, Richard Cordray. Even more recently, the House debated whether to replace the agency’s single director with a five-person commission and change its funding mechanism.


Now, according to accusations made earlier this month, the CFPB is in the spotlight because of alleged discrimination against its minority employees. Reports showed that the agency was ranking white employees “distinctly better” than African American and Hispanic employees.  Whites were twice as likely to receive top performance ratings.


On Friday March 21, the CFPB said it was increasing efforts to create a more diverse and fair work environment within the agency. Cordray sent an email to the agency’s staff stating “[w]e must focus more carefully on how we address diversity and inclusion not only in hiring and contracting, but in our day-to-day treatment of one another.”


In a letter dated March 24, Democratic members of the House’s Financial Services Committee requested an investigation into the alleged discrimination. The letter asked “that the Office of Inspector General immediately exercise its independent oversight authority over the bureau’s operations, to detect whether any personnel practices and policies have created an unfair or discriminatory workplace for minorities and women employed at the CFPB.”


A subcommittee of the Financial Services Committee, the Oversight and Investigations Subcommittee, is to hold a hearing soon focusing on whether CFPB employees were discriminated or retaliated against.


Keywords: litigation, minority trial lawyer, CFPB, Richard Cordray, discrimination, minority employees, diversity, workplace environment


Joseph M. Hanna, Goldberg Segalla, Buffalo, NY


 

March 27, 2014

The Legal Profession Needs More than Diversity . . . It Needs Inclusion


Verna Myers, a nationally recognized expert in diversity issues within law firms, recently spoke to Valparaiso University law students about diversity in the legal profession. Myers’s presentation emphasized the value of inclusion within law schools and law firms alike. “Diversity is being invited to the party. Inclusion is being asked to dance.”


Having a diverse organization does not mean that those members are inclusive in the organizational culture. The dean of Valparaiso Law, Ivan Bodensteiner, said 47 percent of his law school’s most recent first-year class are “underrepresented minorities.” Though Valparaiso, like other law schools in the nation, is well diverse, law schools need to focus on providing equal opportunity and full inclusiveness to all students.


Myers related the issue to her experience at Harvard Law School in 1953. Harvard was the first law school to admit women students. However, the school failed to provide women bathrooms and forced women to use a toilet in the janitor’s closet. Although diversity is a goal for the legal profession, it is imperative to cultivate relationships with all students and attorneys to harness the power of inclusiveness.


According to Myers, awareness of diversity issues is paramount in the legal profession where lawyers are responsible for understanding how biases and stereotypes impact the justice system. Creating diverse and inclusive attorneys creates innovative and integral solutions for legal issues. “If you want to be good in this profession, you have to be culturally competent . . . Good lawyers see multiple realities. If you can do that, you’re going to be great at diversity,” Myers said.


Law students should be encouraged to understand their cultural background and how it shapes their interactions with others. Once you can expand out of your comfort zone and reach out to other social circles, you can help break down the system that continues to perpetuate inequality.


Keywords: litigation, minority trial lawyer, diversity, inclusion, legal profession, law firms, law students, Verna Myers


Joseph M. Hanna, Goldberg Segalla, Buffalo, NY


 

March 10, 2014

The Need for Fair Tax Reform on IRS Enforcement Policies


The conversation on tax reform is heating up inside the Beltway. On the heels of the least- productive Congressional sessions in recent years, the stage is now being set for hefty transformations in the federal tax regime. Last week, House Ways & Means Committee Chair David Camp (R-MI) released his tax reform proposal, which outlined a number of substantial structural changes in the tax code. Camp’s plan decries the complexity and inequity created under the present code and promises a simpler and fairer system. Then, earlier this week, President Obama sent his fiscal year 2015 budget request to Congress, which included more proposals geared toward achieving taxpayer equity. Though it remains to be seen what impact they will generate if enacted, the plans are instrumental in stoking discussions on tax simplicity and fairness. The growing complexity of the code has serious implications on taxpayer compliance and enforcement actions by the IRS, particularly among ethnic groups with limited English proficiency or literacy.


A study conducted in 2010 by Tax Lifeboat, Inc., a firm that helps taxpayers address their IRS issues, found that IRS enforcement actions were disproportionately targeting areas populated by African Americans and Hispanics. The study asserts that there is no evidence that the IRS is intentionally targeting certain groups. Rather, the enforcement is a result of the agency’s automated collection procedures, which indiscriminately combs through tax filings and flags any violation. The study examined data published by the IRS on enforced tax liens and compiled the ZIP codes containing the highest number of liens. In one analysis, it found that blacks and Hispanics represented 22 percent and 24.4 percent respectively of population living in the 1,000 ZIP codes with the highest number of tax liens in 2009-10.


Citing the study, The National Taxpayer Advocate (NTA) has argued to Congress that this type of mechanical enforcement process renders taxpaying populations with low incomes, low literacy, or lower levels of education, more vulnerable to IRS action. Confronted with the complexity of the code, these groups are more likely to run afoul of a code provision or inadvertently omit information, while having limited or no means to contest an enforcement action. This can create long-term harmful consequences for individuals and for the tax system in general. Taxpayers become saddled with debt, with the lien blemishing their credit and affecting their ability to get loans. In turn, these enforcements could discourage future tax filings and push taxpayers who are concerned about triggering more enforcement into intentional tax filing noncompliance.


With little evidence that the policies of the IRS are successful in capturing more money than it is spending on enforcement, the NTA recommends that Congress install a more nuanced process that considers all the facts and circumstances of the taxpayer. And, with two major proposals that have propelled tax reform into the spotlight, the time appears ripe for Congress to take these steps and protect these taxpaying groups.


Keywords: litigation, minority trial lawyer, taxation, tax reform proposal


—Shawn Cabinian, student, Temple University Beasley School of Law, Philadelphia, PA


 

February 28, 2014

Arizona Governor Vetoes "Religious Freedom" Bill


On February 26, 2014, Arizona Governor Jan Brewer vetoed  SB 1062. Senator John McCain, the Arizona Super Bowl Host Committee, the ACLU, and businesses such as Apple and American Airlines helped lobby against the bill. However, similar legislation has been introduced in Pennsylvania, Hawaii, Ohio, Mississippi, Idaho, South Dakota, Oklahoma, Georgia and Oregon.


These bills purport to limit government action against those exercising religious freedom. The conversations in state legislatures across the country reveal that these bills are actually designed to discriminate against LGBT citizens and are not as innocuous as they seem.


They define exercise of religion as: the practice of observance of religion, including the ability to act, or refusal to act, in a manner substantially motivated by a religious belief, whether or not the exercise is compulsory or central to a larger system of belief.


In City of Boerne v. Flores, 521 U.S. 507 (1997), the Supreme Court held Congress may enact legislation such as the Religious Freedom Restoration Act (RFRA), but it may not determine the manner in which states enforce the substance of its legislative restrictions. Many states continue to enact or propose mini-RFRAs and the proposed SB 1062 tried to do just that.


Proposed bills such as SB 1062 toe the line between animus-driven legislation and well-known property rights. The right to exclude from your business is a property right recognized by the common law in most states for centuries, aside from innkeepers and common carriers. Over the years, legislatures have codified certain statutory exceptions based on race, color, national origin, religion and sex (and sexual orientation in a few states). But outside of these, a business owner has the right to deny service to anyone for any reason.


Laws that compel behavior to combat discrimination also have immense power to promote good. The Civil Rights Act of 1964 and the American Disabilities Act helped to create inclusive workplaces and businesses. Such laws have been necessary to advance racial integration in both private and public places. They have afforded women the opportunities to sit on boards, serve as police officers, become landowners, business leaders, and serve in government.


Antidiscrimination laws are necessary restraints on certain freedoms and have been essential to underrepresented minorities that the free market has had difficulty protecting on its own.


Keywords: litigation, minority trial lawyer, religious freedom, Arizona legislation, LGBT


Aaron Spencer, student, Temple University Beasley School of Law, Philadelphia, PA


 

February 28, 2014

NFL Cheerleaders and Supporters Hope to Score a Touchdown Against NFL


On January 22, 2014, Lacy T, a Raiderette (cheerleader) for the NFL Oakland Raiders (the Raiders) filed a lawsuit against the Raiders for violating the California Labor Code. Amongst the many allegations listed in the suit, Lacy T alleges that the Raiders only paid her and other Raiderettes $1,250 ($5 per hour) for the entire NFL season.  


In support of these allegations, Lacy T asserts 11 causes of action against the Raiders which include: failure to pay minimum wage; unlawful prohibition on discussing wages; failure to provide meal breaks; breach of contract; and unlawful, unfair and fraudulent business practices.


Under the California Labor Code, minimum wage is $8 per hour. However, Lacy T alleges that the Raiderettes limited her pay to a flat fee of $125 per home game regardless of the numbers of hours worked, and home games were at least nine hours long. In support of her wage claim, Lacy T also stated that she and other Raiderettes were required to make over 300 appearances throughout the year but were never compensated. If found to be in violation of California Wage Laws, the Raiders could be fined $50 for the first violation and $100 for each subsequent violation under California Labor Code 558. The law firm of Levy Vinick Burrell Hyams is currently handling Lacy T’s suit, and is asking the court to certify the petition as a class-action suit and appoint Lacy T as the class representative. If certified as a class-action lawsuit, the litigation will likely take years to resolve since class actions are not a quick process. 


Subsequent to Lacy T’s lawsuit, a petition in support of fair wages and compensation for all NFL cheerleaders was created on popular website Change.org. The petition was initiated by Dianne Todd and calls on the NFL to increase its wage pay for NFL cheerleaders.  Though not affiliated with the NFL, Todd was inspired to create the petition because her daughter is a competitive cheerleader for the Santa Monica Vikings, a youth-sports association.  In the event that her daughter pursues a career as a NFL cheerleader Todd wants to be sure her daughter will be paid fairly.  Id.  In less than two months the Change.org petition has gained close to 125,000 signatures.  Once the petition has obtained 150,000 signatures, it will be delivered to the appropriate decision maker at the NFL.


Most recently, on February 11, 2014, NFL cheerleader Alexa Brenneman filed a wage lawsuit against the Cincinnati Bengals. Her suit alleges that she worked over 300 hours for the Bengals during the 2013 season and was only paid $855, which amounts to approximately $2.85 per hour. Other popular NFL teams such as the Dallas Cowboys and San Diego Chargers pay their cheerleaders between $75 and $150 per home game therefore, it’s possible that additional lawsuits may surface soon. Until that happens, the lawsuits that are currently on file have captured the attention of fans and supporters of NFL cheerleaders and they are hopeful for a touchdown.  


Keywords: litigation, minority trial lawyer, NFL, cheerleaders, petition, class action, wages, california, Oakland Raiders, Cincinnati Bengals


—Erika L. Glenn, Rodney Jones Law Group, Lonestar Immigration Legal Services, Houston, TX


 

February 21, 2014

New Study Reveals Increase in Exonerations in 2013


The intersection of racial dynamics within the criminal-justice system has a long history, but its relation to exoneration both from DNA and non-DNA methods have only recently been reviewed in such careful detail. According to The Innocence Project, a law and public-policy organization dedicated to exonerating wrongfully convicted through DNA testing, there have been 312 post-conviction DNA exonerations in the United States to date. Of the 312 exonerees, 194 are African Americans, 94 Caucasian, 22 Latinos, and 2 Asian American. The racial implications of these numbers are drastic and fundamental to developing criminal-law reform and improving efforts to diminish the effects of mass incarceration. Using information from the National Registry of Exonerations, the numbers of both DNA and non-DNA exonerations are even greater. The National Registry of Exonerations is a joint project of the University of Michigan Law School and the Center on Wrongful Convictions at Northwestern University School of Law. It was launched in May 2012, and at that time the registry listed 891 cases.


According to the National Registry of Exonerations report, there have been 1,313 exonerations in the United States as of February 17, 2014. Of that number, about 530 exonerees are Caucasian, about 590 are African American, and 142 are Hispanic; 92 percent were men and 8 percent were women. From January 1989 through December 2013, 47 percent of exonerees were black, 40 percent were white, 11 percent were Hispanic and 2 percent were Native American or Asian. The year 2013 is identified as being a record-breaking year for exonerations with about 87, the most any single year since the registry started in 1989. The report also indicated that 10 states with the highest number of exonerations were the following: Texas, Illinois, New York, Washington, California, Michigan, Missouri, Connecticut, Georgia, and Virginia.


While the report has a specific purpose, which is to provide data relating to exonerations by DNA, non-DNA, specific crime, race, and gender, the implications of the effect of the “War on Drugs” on communities of color has been of concern. Of the highest category of exonerations for non-violent crimes have been drug-related offenses followed by bribery and corruption. Black defendants continue to be over-represented among exonerees, particularly in sexual assault, robbery, and drug cases. The data shows that since 2011, exonerations have increased relating to drug offenses. Perhaps it was the results of the United States Sentencing Commission’s vote to retroactively apply the Fair Sentencing Act of 2010 to individuals sentenced before the law was enacted. The report showed that exonerations by DNA decreased since 1989.


However, it is too early to tell if the recent Supreme Court case of  Maryland v. King, 133 S. Ct. 1958 (2013) will have an impact. The Supreme Court held that “when officers make an arrest supported by probable cause to hold for a serious offense and bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.” Although that case presents a compelling argument for safety of the public, it also provides an avenue for increased convictions among communities of color, who are often disproportionately searched and arrested in many cities across the country.


Exoneration is only one aspect of the criminal-justice process and outcomes in this area reflect the decisions made at previous points in the system. Efforts to reduce racial disparity or implicit bias within the criminal-justice system begin with studies such as that of the National Registry of Exonerations. Reducing implicit bias in criminal justice is critical to uphold notions of fairness in the law. Here, the data shows that at least among blacks and whites, the data is closer to neutral which helps reduce bias in that common dichotomy.


Keywords: litigation, minority trial lawyer, exonerations, National Registry of Exonerations, racial bias, DNA evidence, criminal procedure, Maryland v. King, The Innocence Project


Janice Arellano, student, Temple University Beasley School of Law, Philadelphia, PA


 

February 13, 2014

NIH Partnership Targets Critical Areas Affecting Minority Groups


The National Institutes of Health (NIH), 10 biopharmaceutical companies (AbbVie, Biogen Idec, Bristol-Myers Squibb, GlaxoSmithKline, Johnson & Johnson, Lilly, Merck, Pfizer, Sanofi, and Takeda), and several patient-advocacy organizations (including the Alzheimer’s Association, American Diabetes Association, Lupus Foundation for America, and Pharmaceutical Research and Manufacturers of America) have formed a public-private partnership that will “transform the current model for developing new diagnostics and treatments by jointly identifying and validating promising biological targets of disease.” This partnership, called the Accelerating Medicines Partnership (AMP) will target three areas: Alzheimer’s disease, type 2 diabetes, and autoimmune disorders (namely rheumatoid arthritis and lupus). There is a higher prevalence of these diseases among minority populations, such as Latino, Asian American and African American groups. The most innovative aspect of this partnership is that all members of the partnership have agreed to make the data and analyses uncovered through AMP publicly accessible, so the biomedical community can perform further research, and pharmaceutical companies can use the data to specify particular pathways to research and eventually produce medications potentially benefitting the long-suffering public.


Over the next five years, AMP will spend almost $230 million in projects related to this cause, with a slight majority of the budget paid by the NIH and the rest by the pharmaceutical companies. Steering committees for each of the three areas will be made up of members from every partner, and will meet regularly to review ongoing progress. These steering committees will be managed by the Foundation for the NIH (FNIH), which is an independent nonprofit organization established by Congress in 1990 to support the NIH.


The closest precedent for a partnership like this is the Biomarkers Consortium, which is also a public-private partnership overseen by the FNIH. However, it is only made up of government agencies and industry trade organizations, while AMP has government agencies, specific pharmaceutical companies, trade organizations, and patient advocacy groups. The Biomarkers Consortium is only conducting research in biomarkers, which can indicate presence or absence of a disease, and not drug pathway molecules, which may directly treat a disease, and which many modern medications either amplify, mimic, or repress. Additionally, the public release of data should lead to quicker strides toward a solution to these disorders.


However, there are two separate issues that could potentially dampen this exciting announcement in the future, and those are the problems of implementation and potential future patent rights. While the agreement indicates how much money will be contributed, there was no mention of which facilities to be used, amount of personnel to be contributed, where the data would be stored, and other specifics. This may lead to disagreements in the future. Additionally, if marketable molecules come out of this partnership, it may be the result of the partnership finding the pathway, and private company research that finds that specific molecule to take advantage of that pathway. It is unclear whether or not this will result in future cost savings. Ostensibly this will reduce the costs of developing medications which will be passed onto patients in the future. However, when drug companies receive a patent for a medication, and approval to market their brand medication, they will essentially receive a monopoly on that market and will be able to dictate price. While there would certainly be a claim that they had saved money based on the partnership, the likely response would be that the quoted price is justified to cover the costs of researching other medications.


Cynicism aside, it is clear that the NIH is committed to finding innovative ways to improve the health of patients. This is an exciting partnership, and should provide hope to the approximately 5 million Alzheimer’s, 26 million type 2 diabetes, and 3 million rheumatoid arthritis/lupus suffers in the United States.


Keywords: litigation, minority, trial lawyer, public-private partnerships, health disparities, biological disease targets


Gregory Yen, PharmD, student, Temple University Beasley School of Law, Philadelphia, PA


 

January 31, 2014

No Bar Candidate Left Behind


Of the 11 million undocumented immigrants that currently reside in the United States, a unique percentage of this population is comprised of law students. Earlier this month, Sergio Garcia became the first attorney living openly in the United States as an illegal immigrant with the right to practice law.  The California State Bar’s Committee of Examiners filed a motion on his behalf and the California Supreme Court unanimously ruled in his favor. Id. Garcia’s victory came after California Governor Jerry Brown, signed legislation (AB 1024) that allows undocumented immigrants to be admitted as attorneys. Sergio Garcia did not grow up with the dream of pioneering a landmark ruling for undocumented bar candidates, but it became his reality after his visa petition was backlogged. Garcia’s father filed a visa petition on his behalf that would have eventually granted him permanent residency in 1994 but that application has been listed as “pending” since 1995. 


Determined to pursue his education Garcia worked in almond fields and a grocery store as teen, and earned both his undergraduate and law degree. When Garcia completed his application to the state bar in 2009, he listed his immigration status as “pending” and hoped for a favorable decision—however that did not come. He successfully passed the California bar on the first try and passed the bar’s requirements for “good moral character,” but he was unable to pass the residency requirements because he did not have lawful immigration status. Eager to help Garcia realize his dreams, a small group of attorneys advocated for his law license through pro bono representation, and four years later his hopes were brought to fruition.


Ruling in Garcia’s favor, Chief Justice Tani Cantil-Sakauye wrote “We conclude that the fact that an undocumented immigrant’s presence in this country violate federal statutes is not itself a sufficient or persuasive basis for denying undocumented immigrants, as a class, admission to the state bar.”  She went on to add “the fact that an undocumented immigrant is present in the United States without lawful authorization does not itself involve moral turpitude or demonstrate moral unfitness so as to justify exclusion from the state bar.”  The Court’s ruling strongly opined that one’s status was not enough to deny their right to practice. The only issue left for Garcia to overcome was the issue of employment authorization. The Court made no ruling on whether undocumented bar licensees can be employed once licensed to practice. Therefore, at this time Garcia may only work for himself as a solo practitioner. However, considering the larger victory at hand Garcia’s thoughts about this issue were “There’s a lot to celebrate.  I can open my own law firm, and that’s exactly what I intend to do. There’s no law restricting entrepreneurs . . . I can finally fulfill my dream . . . ”


Since filing his application, other states such as New York and Florida have received similar petitions from other undocumented bar applicants. While the outcome of their petitions is unknown, one decision that both they and other proponents like Garcia hope to receive, is authorization to be employed after they are licensed. If undocumented bar licensees are between ages 18-30, they are eligible for employment authorization through the Deferred Action for Childhood Arrivals (DACA) program that was announced by the Secretary of Homeland Security on June 15, 2012.  However, if they are over age 31 they must find another alternative. As cases by other undocumented bar applicants continue to go forth, this is an issue they hope to see addressed.  In the meantime, law students and bar candidates in California can rejoice because they now have the opportunity to practice law regardless of being undocumented.


Keywords: litigation, minority, trial lawyer, immigration, law practice, undocumented immigrants, DACA, Sergio Garcia, California


Erika L. Glenn, Arias, Ozzello & Gignac LLP, Houston, TX


 

January 16, 2014

Asian Baseball Players' U.S. Integration Aided by Lawyer Community


On December 12, 2013, Global Sporting Integration (GSI) was launched at the 112th Baseball Winter Meetings in Orlando, Florida. GSI creates custom solutions for professional baseball players to adapt, survive, and thrive while playing in a new environment. GSI’s main focus is to help players who transition between the United States and countries in Asia, such as Japan, Taiwan, and South Korea. Unlike a sports agency, GSI works with professional leagues, clubs, and individual players to ease the transition process for players who are beginning a new phase in their career in an unfamiliar country. GSI’s programs combat language barriers, ensure proper nutrition for the player, highlight cultural similarities and differences, and minimize variances in physical training from an athlete’s native country.


During the 2013 season, approximately 60 Asian-born players competed in Major League Baseball and its farm systems. Often, these players face challenges associated with international transplantation, such as a new language, cultural context, foods, and climates, in addition to differences in training schedules, practice regimens, media expectations, and the way baseball is played in the U.S. versus their native country. The challenges of transitioning to new lives as professional baseball players in America has been an ongoing challenge for Major League Baseball and has cost many promising players their careers, resulting in large financial losses for both the player and their clubs.


This inspiration for this company came from Han Lee, the principal of GSI, derived from his roots as a native of South Korea. When he came to the United States as a 15-year-old exchange student, he had to adapt to an unfamiliar culture. He used sports, particularly baseball, as a method to integrate himself into American society. Through playing sports, he was able to converse more with American teammates, while gaining exposure to more aspects of American culture while breaking down any language barriers. At the Temple University Beasley School of Law, he was fortunate enough to meet and eventually partner with professors and sports-law attorneys Ken Jacobsen of Temple University Beasley School of Law and Jeremi Duru, of American University Washington College of Law. Their expertise in sports law, combined with Lee’s knowledge of Asian cultures and their mutual passion for baseball, helped create the company. At the end of the day, GSI helps bring Asian countries and the United States closer together through baseball.


Keywords: litigation, minority, trial lawyer, baseball, MLB, sports law, cultural integration, consulting


Han Gil Lee, Principal & CEO, Global Sporting Integration, Philadelphia, PA


 

January 9, 2014

Study Backs Up Idea that Diversity Drives Innovation


For years researchers have been saying that diversity in the workplace is a key to innovation.  Yet, little measurable evidence confirms that idea. A recent study published in the Harvard Business Review uses compelling evidence to prove the assertion. The study, How Diversity Can Drive Innovation, proves what scholars have been saying for years: a diverse workforce can better understand and serve the marketplace because employees know about unmet needs and can relate to end users. 


The study advises there are two types of diversity: inherent and acquired. Inherent diversity comes from traits a person is born with like gender and ethnicity. Acquired diversity, on the other hand, comes from learning and experience. Both types are critical to an innovative leader.


According to the study, companies with leaders exhibiting both types of diversity outperform companies without such leaders. Diverse companies are 45 percent likelier to grow in market share and 70 percent likelier to report that they captured a new market. Diverse teams with at least one member whom shares a trait with a client is 152 percent likelier to understand that client.


Unfortunately, only 22 percent of the respondents worked in a company with diverse leadership.  A lack of diversity stifles innovation because new ideas are ignored or unmentioned. The study suggests that culture at companies where diversity is lacking doesn’t promote new ideas.  Women are 20 percent less likely that straight white men to have their ideas endorsed by leadership; LGBT persons are 21 percent less likely; and people of color are 24 percent less likely.


Promoting and establishing leadership with both types of diversity gives a company a competitive edge. Diverse leaders ensure that everyone is heard and encourage employees to show their innovative side.


Keywords: litigation, minority, trial lawyer, diversity, innovation, leadership, inherent diversity, acquired diversity, Harvard Business Review, marketplace, unmet needs


Joseph M. Hanna, Goldberg Segalla, Buffalo, NY


 

January 2, 2014

Ally to Pay Largest Auto-Loan Discrimination Settlement in History


Ally Financial, formerly known as GMAC, has agreed to pay $98 million to settle auto-loan discrimination allegations.  According to a December 20, 2013 announcement by the Department of Justice (DOJ) and the Consumer Financial Protection Bureau (CFPB), the settlement is the largest auto-loan discrimination settlement in history.


The CFPB and DOJ said Ally was charging minority borrowers higher interest rates on auto loans. Allegedly, about 235,000 borrowers of Hispanic, African American, and Asian/Pacific Islander descent were overcharged when compared to white borrowers with similar credit profiles. Minority customers paid an average of $200 to $300 extra over the life of the loan.


The CFPB’s investigation began in September 2013, using loan data from April 2011 to March 2012. Based on that data, CFPB director Richard Cordray says Ally “had not made sufficient efforts to ensure that it was complying with fair lending laws in its pricing of indirect auto loans.” As a result, car dealers arranging auto loans were marking up interest rates to levels greater than what was warranted by a person’s credit profile.


“Dealer markup” systems are a common practice in the industry.  The practice is invisible to the borrower but increases the interest rates initially approved by a lender. After financing companies like Ally set an interest rate based on objective criteria like credit history and the size of a down payment, dealers are free to increase the rate at their discretion. There are certain limitations on this practice and generally rate increases are capped at 2.5 percent. The increased interest amount is split between the dealer and lender.


Ally says “it does not believe that there is measurable discrimination by auto dealers,” but, it has agreed to the settlement terms.  According to Ally, it hasn’t engaged in any discrimination either because it does not receive information about the borrowers’ race or ethnicity. Instead, “it purchases installment contracts originated by dealers.”


“Discrimination is a serious issue across every credit market,” Cordray said. The federal authorities did not allege that Ally was purposefully discriminating against minority consumers, but say it was happening nonetheless. With car loans as the third-largest source of consumer debt, there is no doubt these loans are on the federal radar.  One consumer advocate says dealer markup systems are “so fraught with fair lending risk that regulators . . .  need to abandon” them for something else. 


The settlement requires Ally to appoint a third-party administrator to identify victims. That task may be a challenge because the CFPB faced problems during its investigation as loan data is not publicly available.


The settlement will be broken into two portions: compensation for victims and a penalty. Of the $98 million, $80 million will be used to compensate victims. The remaining $18 million will be paid into the CFPB’s civil penalty fund.


Keywords: litigation, minority, trial lawyer, auto loans, discrimination, minority borrowers, Consumer Financial Protection Bureau, Richard Cordray, fair lending laws


Joseph M. Hanna, Goldberg Segalla, Buffalo, NY


 

December 20, 2013

A Picture Is Worth A Thousand . . . Lawsuits?


Thanks to social media, we are living in a time when almost anyone can be discovered online for their skill and talent. From viral YouTube videos to captivating photographs, the moment you upload your work, it possesses the potential to increase your notoriety within months, days, or even hours. Imagine walking to your mailbox to check your mail, and noticing a picture of your artwork on the face of a U.S stamp. One might consider this to be exciting and somewhat of a dream come true. However, one sculptor was far from elated when he learned that a picture of his sculpture was being used by the United States Postal Service (USPS). Sculptor, Robert Davidson filed suit against the USPS in Federal Court for copyright infringement after it allegedly used his version of Lady Liberty on a stamp released in 2011 without his permission. Jess Collen, “The U.S. Postal Service Gets the Wrong Address on Copyright,” Forbes,  December 17, 2013.


It appears that the USPS obtained the photo the same way many of us do, online, through a popular storehouse for imagery and footage, Getty Images. The original statue design is in the public domain because the creator Frederic Auguste Bartholdi died in 1904.  Davidson claims that he was able to identify the image on the stamp as his work because his statue has a softer silhouette and fuller chin which differs from the Lady Liberty that towers over Ellis Island. Davidson asserts that his artwork is unique and therefore the intellectual property and rights belong to him, the creator.


Getty Images prides themselves on being the first company to license imagery online however, it is possible that they may have to share liability in Davidson’s suit along with the USPS depending on the limitations of the photo license. Interestingly, if so, it would not be the first lawsuit for either entity. In November 2013, a photographer obtained a $1.2 million judgment against Getty Images after it pulled photos from the photographer’s Twitter account and published them without his permission. DL Cade, “Daniel Morel Awarded $1.2M in Damages in Lawsuit Against AFP and Getty Images,” PetaPixel blog, November 23, 2013. A few months before that, in September 2013, a federal court awarded an artist nearly $685,000, in a suit for copyright infringement after the USPS used a picture of his sculpture (The Column) on its stamp to commemorate the Korean War Memorial. Dan D’Ambrosio, “Korea Memorial Sculptor Wins Copyright Case,” USA Today, September 20, 2013.


Davidson is seeking unspecified damages in his lawsuit against the USPS and hopes for a favorable outcome like the other artists mentioned. Though social media is an excellent tool to get discovered, it is also a way to get sued if one is not careful. If you are considering using media (images, sound bites, videos, etc.) that does not belong to you, it is wise to check its license before distributing it. Various types of media located online will often indicate if it possesses a Creative Commons license or one that reserves all rights. A Creative Commons license permits an individual to alter, share and/or use another’s work, while an “all rights reserved” license does not. In addition to conducting your own research, individuals are also encouraged to consult an attorney that specializes in areas such as business law, intellectual property, or entertainment law.  These attorneys can help you avoid a lawsuit and also provide information on how to protect your own work.


Keywords: litigation, minority trial lawyer, lawsuit, infringement, copyright, images, Creative Commons license, All rights reserved, Getty, USPS


Erika L. Glenn, Arias, Ozzello & Gignac LLP, Houston, TX


 

December 18, 2013

Push to Increase Diversity in the Financial Services Industry


As a result of the financial crisis since the recession in 2008, Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. 111-203, H.R. 4173, commonly referred to simply as “Dodd-Frank” on July 21, 2010. The act brought about very significant changes to the financial services industry since the 1930s. Dodd-Frank was meant to be an overhaul of the industry generally but also included a provision to diversify the workforce.


Section 342 of Dodd-Frank established the Office of Minority and Women Inclusion (OMWI). The efforts for an OMWI were led by Rep. Maxine Waters of California as well as other members of the Congressional Black Caucus. OMWI’s purpose is to “develop standards for equal employment opportunity and the racial, ethnic, and gender diversity of the workforce and senior management of the agency; increase participation of minority-owned and women-owned businesses in the programs and contracts of the agency, and assess the diversity policies and practices of entities regulated by the agency.” The new obligations imposed on federal financial agencies to evaluate the diversity of the workforces of the contractors who work with the agencies.


On October 25, 2013, six of the agencies, namely the Comptroller of the Currency, the Federal Reserve System, the Federal Deposit Insurance Corporation, the National Credit Union Administration, the Consumer Financial Protection Bureau, and the Securities Exchange Commission published a Proposed Interagency Policy Statement Establishing Joint Standards for Assessing the Diversity Policies and Practices of Entities. Each OMWI Office is headed by a director and is responsible for all agency matters relating to diversity in management, employment, and business activities. Section 342(b)(2)(C) directs each agency's OMWI director to develop standards for assessing the diversity policies and practices of entities regulated by that agency. These proposed interagency policy standards allow the agencies to investigate contractors with regard to their commitment to diversity, fair employment hiring practices, and other aspects of inclusion in the workplace.


Public comments on the proposed joint policy standards are due by December 24, 2013. Proponents of civil rights such as the National Urban League and Professor of securities law Cheryl Nichols of Howard University School of Law seek more compliance and wants to see a clear enforcement mechanism. Many have requested an extension for more time for public comment. The Greenlining Institute sent a request to extend the period for comment up to 45 days to the current comment period. Opponents have argued that the proposed policy only adds to compliance costs and impact customers with possible increase of fees and data banks.


Stakeholders in law, the financial industry, academia, and the public who are interested in efforts for diversity and inclusion impacting over 70,000 banks should state their part and comment before the new year by ensuring the language of the proposed policy will fit their interests and values.


Keywords: litigation, minority, trial lawyer, financial services industry, Office of Minority and Women Inclusion, Dodd-Frank, policy standards, diversity, inclusion, workplace, contractors


Janice Arellano, student, Temple University Beasley School of Law, Philadelphia, PA


 

November 27, 2013

Cloudy with a Chance of Risk


As society has become increasingly environmentally conscious, the effort to go green has become more than just a way of saving trees and recycling plastic. It has also become a way of doing business Thanks to the new age of cloud computing,  going green isn’t just for city waste departments and local restaurants. The green movement has hit the IT world and has introduced an innovative way of conducting business for just about any and everybody with money to earn and little time to spare. 


Cloud computing is an alternative method to storing files in hard copy form and on the hard drive to your computer or laptop. Rather than saving data to a device, you store data and programs over the Internet. Therefore, “cloud” is really just another term for the Internet because your data is literally in a space (cloud) on the Internet. Eric Griffith, “What Is Cloud Computing?”(March 13, 2013). Since businesses are always looking to expand their business across the globe, cloud computing is attractive because it allows data to be accessed from virtually anywhere.


Common cloud computing programs that you may be familiar with are Google Drive and the Apple iCloud. These programs offer the same features as a desktop PC such as: word processing documents, data spreadsheets, saving and downloading music, except the data is saved to a cloud space on the Internet. Similar to the way you maintain the security of your data on a desktop or laptop, your data is accessed by creating a username and password. 


Because your data is floating in space, some skeptics of cloud computing believe there are larger issues to consider. While a username and password are enough to prevent someone from logging into your account and accessing your data, some attorneys who specialize in areas such as intellectual property and electronic storage laws encourage users to ponder the legal issues associated with cloud computing. Ken Rashbaum, a lawyer at a firm that specializes in electronic information storage laws believes an important question to raise with cloud computing is “whose laws will apply?” Samuel Wagreich, “Cloud Storage: 4 Legal Issues You Need to Know,” (Jan. 31, 2013). In other words, when you upload your data onto the cloud which state governs the information?  And in the event your information needs to be seized as part of a case, which state does one go through to subpoena the information—the state where you uploaded the data or the state of the company that owns your cloud computing program?


Attorneys like Rashbaum urge businesses and attorneys to consider these questions.  However, because cloud computing is rather new to the legal profession, answers to these questions do not yet likely exist because the law is slightly behind the current age of technology.  Rashbaum estimates that it will take courts, regulatory agencies, and international bodies at least five years to develop answers to these questions so until then we’ll be living in the “wild west” of electronic information storage laws and left to sort issues on a case-by-case basis. Samuel Wagreich, “Cloud Storage: 4 Legal Issues You Need to Know,”(Jan. 31, 2013).


In the meantime, lawyers and IT specialists offer the following suggestions to anyone considering purchasing or using a cloud program:


1. Be sure you know who owns your data. Prior to signing your contract, make sure there’s a clause that states you will still have the ability to access your data and transfer it, if your cloud provider goes bankrupt. Also take steps to learn who owns your data in the event your provider is purchased by another company.


2. Review your service agreement for information on subpoenaed data. Though your cloud provider’s service agreement should already cover this topic, businesses and individuals are encouraged to verify their agreement for this information.  Additionally, the Stored Communications Act, states that the data owner (you) must be notified if your data is subpoenaed, however, it never hurts to make sure this provision is part of your service agreement.


3. Make sure your provider backs up your data. Business and individuals are encouraged to insert provisions that state how often your provider must backup your data to prevent the loss of data, and minimize the risk of data loss in the event the provider experiences a crash.


4. Ask for cyber risk insurance. This type of insurance can protect against damages incurred from the inadvertent disclosures and theft of confidential employee or client information. All cloud providers do not offer this type of insurance therefore if not, you may want to consider purchasing your own insurance.


5. Do your research. Do a thorough review of your cloud provider’s reputation for quality, compliance, and best practice before signing an agreement.


Though taking these steps does not prevent legal hiccups, following these suggestions is a great way to avoid taking a gulp of regret from not taking the time to protect yourself and/or your business.


Keywords: litigation, minority, trial lawyer, cloud, computing, data, legal issues, cloud provider


Erika L. Glenn, Arias, Ozzello & Gignac LLP, Houston, TX


 

November 26, 2013

The Tech Industry's "Image Problem"


Lately, Twitter has been a hot topic in the news.  On November 7, Twitter went public with an initial public offering (IPO) that valued the company around $25 billion and created 1,600 new millionaires. The I.P.O.’s success spurred talks about other technology companies going public in 2014.  However, it hasn’t been all good news for Twitter, and the tech industry as a whole, lately.


The tech industry has been struggling for years to find diversity among its leadership and news around Twitter’s IPO brought this issue to light. The majority of tech companies including Twitter, Apple, Facebook, and Tumblr have male CEOs. As one of the fastest- growing fields, the tech industry seems almost shut off to women. Only 5.7 percent of employed U.S. women have jobs in the computer industry. 


There are a number of reasons for this lack of diversity. The New York Times says: “The tech industry has an image problem—think geeky man alone at a computer — that repels girls from pursuing it. A sexist engineering culture often dissuades young women in the field, as does the small number of women role models. Venture capital tends to be an old boys’ club.”


But, regardless of the reason, tech companies need to find a way to change.


Perhaps tech companies don’t realize women are needed for more than just the appearance of equality.  Having women in charge will facilitate product development and the bottom line; this is especially true for social-media sites.  Social-media sites earn the overwhelming majority of their revenues from advertising. In the United States, women are the primary consumers and more women than men use social media. So doesn’t it seem logical to have female employees to relate to a company’s largest source of revenue?


While much of the talk focuses on the lack of women in power, it’s even worse for Twitter.  The diversity of Twitter’s leadership is in stark contrast to its user base. Twitter has slightly more female than male users. In addition, 26 percent of African American Internet users actively use Twitter compared to only 19 percent of Hispanic Internet users and 14 percent of white Internet users.


Moreover, African Americans make up a large portion of the “influential” Twitter users.  Many popular “hash tags” are started by African Americans. Young African American users are more likely to “retweet,” reply to posts, and follow more users. And African  American celebrities are more active than white celebrities.


Yet, Twitter’s pre-IPO fillings showed a complete lack of diversity. The board members are all white men, the investors are all men, and all but one of the executive officers are men. Twitter’s only female officer is Vijaya Gadde. She is of Indian descent and was only brought into the company as general counsel in the beginning of September.


With a strong female and African American user base, it only makes sense to have these groups represented throughout the company. With such a large disparity between Twitter’s users and the people in power, it is unlikely the company will be able to relate to its users.


Keywords: litigation, minority, trial lawyer, diversity, Twitter, IPO, board members, tech industry


Joseph M. Hanna, Goldberg Segalla, Buffalo, NY


 

November 19, 2013

When Corporate Giving and Disaster Relief Intersect


More than ever, companies have brought capital and innovation to all parts of the world during natural disasters. Corporate presence is strong in humanitarian relief efforts and most recently Japan, New York, New Jersey, and Haiti have seen both the rise and fall of corporate philanthropy.


Early in November, the second-deadliest typhoon hit the Central Philippines, affecting Samar Island and Leyte, particularly damaging the capital of Tacloban City. The Office for the Coordination of Humanitarian Affairs report over 3,600 people have been confirmed dead, with estimates of about 10,000 as the toll continuously rises. Thus, rebuilding and mobilizing the region will come at high costs. It is no surprise that U.S. corporations will help fund development projects in this region and around the world despite the laws surrounding corporate giving.


Corporate giving comes in many forms and with various avenues for benefits in the tax code or to the corporations themselves. A full discussion of sections 170 and 162 of the Internal Revenue Code as well as employee disaster relief benefits are outside the scope of this article. Corporate giving also hinges on the decision-making of various members of the structures of the corporation but in many contexts it is unclear who makes the final decision. When it comes to disaster relief around the world do shareholders, executives, or the board have influence?


In AP Smith Mfg. Co v. Barlow, 13 N.J. 145, 98 A.2d 581 (1953), the N.J. Supreme Court approved a $1,500 corporate donation to Princeton University with the court noting “there is no suggestion that it was made indiscriminately or to a pet charity of the corporate directors in furtherance of personal rather than corporate ends.” Id. at 590. It is unlikely that donations to disaster-relief would be construed as pet charity or for personal benefit; however, the forms of corporate giving are varied.


The major responsibility of a corporation is to enhance or maximize the value of the assets for its shareholders. As a result, in times when global relief efforts rely on nations for giving and providing aid, corporations have the best interests of shareholders by helping out whether through capital or innovation to be a part of the cause. In the long run, success will come to the corporations that hold themselves out in the world as charitable or simply mindful of global issues yet keeping their loyalty to the corporation and to shareholders.


The Philippines shares millions of people in the Diaspora throughout the world and have a growing presence in North America, Europe, and the Middle East. Approximately 12 percent of the total population of the Philippines lives overseas. Accordingly, due to decades of American media influence, the Philippines is home to one of the largest markets for mobile devices as well as social-media usage, connecting millions of people via social-media networks. Doris C. Dumiao, “Philippines Among Most Active on Social-Media Survey,” Philippine Daily Inquirer, September 17, 2013.


Many U.S. and international corporations have taken to understanding the importance of corporate giving and especially in the context of disaster relief. The U.S. Chamber of Commerce Foundation has created a Typhoon Haiyan Corporate Aid Tracker (last updated: November 15), describing some of the innovative ways businesses have responded to the relief efforts. Of the many interesting forms of corporate giving, here are a few:


• QVC, Inc.: Established on air, online, and social-media platforms to create opportunities for both customers and QVC associates to make donations to the American Red Cross. QVC has pledged $50,000 to support the ARC.


• Sony Corporation: In addition to monetary donations, Sony will donate 400 emergency radios in affected areas.


• Texas Instruments: Texas Instruments, which has operations in Baguio and Clark, is also making a $100,000 contribution to the American Red Cross typhoon relief fund for the Philippines. The TI foundation will also match employee and retiree contributions up to $100,000 made through November 30, 2013, to Red Cross through a dedicated TI microsite or local TI Philippines employee donations.


• AT&T and Verizon: offering free calls and texts to the Philippines for customers to contact friends and family in the Philippines


• Carnival Corporation and Miami HEAT: donation of $1 million to relief efforts


• Campbell Soup Company: 25,000 packets of instant dry soup


• Google: launched person finder via mobile and web


Despite varying views of what social values corporations should or should not take on, the intersection of corporate giving and disaster relief will continue to be innovative and significant.


Keywords: litigation, minority, trial lawyer, corporate giving, disaster relief, Typhoon Haiyan


Janice Arellano, student, Temple University Beasley School of Law, Philadelphia, PA


 

November 4, 2013

Did the USPTO Deny a Band a Trademark Based on Race?


There has been controversy brewing over the rejection of the trademark examiner, and subsequent affirmation by the Trademark Trials and Appeals Board, of the application by the band The Slants for a trademark of their name. (In re Simon Shiao Tam - Serial No. 85472044 of the TTAB opinion.)


Section 2(a) of the Trademark Act, 15 U.S.C. § 1052(a), states that a mark that “consists of or includes matter which may disparage or bring into contempt or disrepute persons, institutions, beliefs or national symbols” will not be granted a trademark. However, what happens when there is a term that may have multiple meanings, like in this case? Based on case law, a two-part test is applied: first you must find the “likely meaning” of the term, and then you must decide if the meaning may be disparaging to a substantial composite of the referenced group.


In finding the likely meaning of the term “The Slants,” the examiner considered evidence as far- reaching as the Wikipedia article on the band itself, where the band’s leader is quotes as saying that they “want to take on these stereotypes that people have about us, like the slanted eyes, and own them.” However, the applicant argued that the conclusion on the “likely meaning” of the term was based on the ethnic background of the applicant, not on the evidence, but the board pointed to the imagery next to their name on the website (Asian woman and a stylized dragon), and also looked to a previous application by the applicant for the same mark that argued that the mark was being used by Asian Americans as a self-descriptor.


While the board was careful in establishing that the finding of the mark’s likely meaning was not based on the band’s ethnicity, but the usage of the term, it was slightly contradictory to say that “those who attend the live performances will necessarily understand The Slants to refer to the persons who comprise the musical band.” While the evidence on record was certainly enough to find the likely meaning of the applied-for mark, implying that someone that attends their live performances will see that “The Slants” means Asian Americans goes too far.


In finding if a substantial composite of the referenced group would find the term disparaging, the board said that they would look to the potential of all Asian American public to be disparaged by this term. They included evidence that support for the band had been pulled from Asian American groups, and downplayed the support received for the term since “the perception of applicant’s fans” is not the only consideration. Lastly, the court mentioned that “the fact that applicant has good intentions underlying his use of the term does not obviate the fact that a substantial composite of the referenced group find the term objectionable.”


Lastly, Tam also argues that other “Slant” marks have been registered, but the board emphasizes that those cases show the different likely meanings for the same term, and that those applications were for items as varied as skateboards, a TV production company, and for food-serving ware. It is possible that after putting forth evidence that the term is no longer disparaging to the individuals referred to and/or identified by that mark, the application may be granted. This happened in the case of the San Francisco motorcycle club called Dykes on Bikes. However, they were able to use evidence from popular TV shows such as Queer Eye for the Straight Guy and Queer as Folk in their appeal, while there is no such parallel here. It seems that while the applicant has good intentions, more will have to be done in the public perception to make the term “The Slants” not disparaging in the eyes of the Trademark Office.


Keywords: litigation, minority, trial lawyer, trademark, disparaging term, likely meaning, The Slants


Gregory Yen, student, Temple University Beasley School of Law, Philadelphia, PA


 

October 31, 2013

PLIVA, Inc. v. Mensing Revisited: Who's Being Impacted and How?


In 2011, the Supreme Court ruled in PLIVA, Inc. v. Mensing, 131 S. Ct. 2567 (2011) that generic-drug manufacturers that fail to warn consumers of dangerous side effects cannot be sued, as long as they do not alter their labels to differ from brand-name manufacturers.


The case was the byproduct of two consolidated circuit court cases (PLIVA, Inc. v. Mensing, No. 09-993, 131 S. Ct. 817 (2010) and Actavis, Inc., v. Demahy, No. 09-1501, 131 S. Ct. 817 (2010)) in which women who took the generic drug Reglan sued the manufacturers for failure to warn consumers about the risks of developing a neurological disorder. The women alleged that long-term metoclopramide use caused tardive dyskinesia and that the manufacturers were liable under state tort law for failing to provide adequate warning labels. The women maintained that “despite mounting evidence that long-term metoclopramide use carries a risk of tardive dyskinesia far greater than that indicated on the label,  ‘none of the manufacturers had changed their labels to adequately warn of that danger’” PLIVA, Inc., 131 S. Ct. at 2573.


In both suits, the manufacturers disagreed and argued that federal statutes overrode the plaintiffs’ state tort claims, and asserted that it was impossible to simultaneously comply with both federal law and any state tort-law duty that required them to use a different label. Id. The plaintiffs argued that the generic-drug manufacturers could have applied to the Food and Drug Administration (FDA) to update their labels when they discovered the risks associated with the drug. However, the Supreme Court disagreed and engaged in a preemption analysis in order to reach its decision.


In its preemption analysis, the Court referenced the Supremacy Clause of the U.S. Constitution, and relied on the FDA’s interpretations of its federal regulations concerning label changes. See CFR § 314.150(b)(10).  The Court reviewed relevant provisions of the FDA, and concluded that federal law was controlling because “where state and federal law ‘directly conflict,’ state law must give way.” Id. at 2577 (citations omitted). Contrary to the plaintiffs’ assertions regarding the manufacturers’ duty to comply with state law requirements, the Court maintained that federal law demanded that generic-drug labels be the same at all times as the corresponding brand-name drug labels because they were held to an ongoing requirement of “sameness.” Id. at 2578.  In addressing the plaintiffs’ position, the Court reasoned that even if the generic manufacturers had fulfilled their federal duty to ask for FDA assistance, the manufacturers would not have satisfied the requirements of state law because it was it was impossible for the manufacturers to comply with both their state-law duty to change the label and their federal-law duty to keep the label the same. The Court held that “the FDA’s views are ‘controlling unless plainly erroneous or inconsistent with the regulation[s]’ or there is any other reason to doubt that they reflect the FDA’s fair and considered judgment.” Id. at 2575 (citations omitted). 


The Court’s ruling was a victory for generic-drug manufacturers but a setback for brand-name manufacturers because liability ultimately falls upon them. The Court acknowledged that their finding of preemption as the controlling factor did in fact cause disparity in liability for plaintiffs such as Mensing and Demahy. However, the Court maintained that it would not distort the Supremacy Clause in order to achieve a specific result, and concluded its opinion by stating “as always, Congress and the FDA retain the authority to change the law and regulations if they so desire.” Id. at 2582.


As recognized by the Court, brand-name drug manufacturers were not the only party impacted by the Court’s ruling. Consumers who purchase the generic drugs that make up 70 percent of the total prescriptions in the United States each year are also negatively impacted by the Court’s ruling. Robert West, “Generic Drugs,” U.S. Food & Drug Administration, (retrieved October 13, 2013).  The Court’s ruling leaves these consumers without a legal remedy when a generic drug causes lifelong illnesses and incurable conditions (i.e. the neurological disorder developed as a result of taking the generic drug Reglan). While the availability of generic drugs has saved Americans $824 billion in the last decade, those savings may be minimal when juxtaposed with the cost of medical care needed to treat the conditions that result from ingesting generic drugs. Id


Furthermore, the Court’s ruling negatively impacts consumers in low-income neighborhoods who cannot afford the cost of brand-name drugs and senior citizens who often receive prescription drug samples from local health clinics and doctors. Doctors and clinics frequently distribute generic drugs to make medical treatment more affordable and accessible for patients with limited financial resources, but these individuals suffer greatly when they develop disorders associated with the drug. Brand-name manufacturers aren’t the only parties affected by the Court’s ruling—consumers who can only afford the cost of generic drugs are also affected and are left without a legal remedy.


Attorneys that handle this type of litigation often find themselves rehearsing the conversations they will have with clients to inform them that no legal relief is available for the heart condition or bodily dysfunction caused by the generic drug they ingested. Even though one may want to rejoice in the statistics that show generic drugs save consumers approximately $53 for every prescription sold, it is difficult to do when one’s clients struggle with the disorders that occur after ingesting generic drugs. Robert West, “ Generic Drugs,” U.S. Food & Drug Administration, (retrieved October 13, 2013).  With harsh realities such as this, is $53 really a saving? As of now, this does not appear to be a savings when compared to lifelong disorders that require permanent medical treatment and care. 


Disgruntled by the lopsided liability between manufacturers, Senator Patrick Leahy (D-Vt) in April 2012, proposed S. 2295, legislation that seeks to permit generic-drug manufacturers to change their labeling based on new information, and ultimately hold them liable. Patient Safety and Generic Labeling Improvement Act, S. 2295.IS (April 18, 2012). More recently, in July 2013, the FDA also took steps to level the playing field between drug manufacturers when it announced plans to issue a rule that would allow generic-drug manufacturers to change their labeling based on new information. “Supplemental Applications Proposing Labeling Changes for Approved Drugs and Biological Products,” Spring 2013 Unified Agenda & Regulatory Plan, HHS/FDA, RIN No. 0910-AG94, July 3, 2013. While the rule would still be subject to interpretation by the courts, it would nevertheless be a major win for generic-drug consumers and would eventually address the concerns arising from the Court’s Mensing decision. As of August 2013, the FDA’s rule was scheduled to be issued in September 2013. To date, updates regarding the proposed rule have yet to be posted.


In the meantime, those in the legal profession can educate their communities on the consequences of taking generic drugs in order to help them make more informed decisions regarding their health and legal rights.


Keywords: litigation, minority, trial lawyer, drugs, manufacturers, generic, brand-name, PLIVA, Mensing


Erika L. Glenn, Arias, Ozzello & Gignac LLP, Houston, TX


 

October 25, 2013

Saturday Night Live's Lack of Diversity Is No Laughing Matter


Saturday Night Live kicked off its 39th season last month with host Tina Fey and musical guest Arcade Fire, along with six new cast members. However, according to the website Zap2it, the new additions showed that SNL producer Lorne Michaels “has a diversity problem” — the six are all white, with only one woman. This criticism has been voiced before; during SNL’s nearly four decades on air, only four black women have been included as cast members. But the controversy took on new life following a recent interview with cast member Kenan Thompson.


As TV Guide reported on October 14, instead of blaming show runner Lorne Michaels or the series, which currently only employs three actors of color out of 16 cast members (Thompson, Jay Pharaoh, and the Iranian Nasim Pedrad), Thompson blames the lack of quality black female comedians. “It’s just a tough part of the business,” Thompson says. “Like in auditions, they just never find ones that are ready.”


However, the article adds, Pharoah “has recently spoken out about the series’ diversity problem, telling theGrio, ‘They need to pay attention [and add a black woman to the cast] . . .  I believe they need to follow up with it like they said they were going to do last year.’” Pharoah even mentioned one actress in particular, Darmirra Brunson, star of the sitcom Love Thy Neighbor.


Debra Wilson, a former MADtv cast member and comedian, shared her thoughts on the lack of diversity in the SNL cast during a recent CNN interview. As Wilson said, if women of color who have auditioned have not met the criteria for making the cut, then Michaels and company have every right not to cast them. However, Wilson said, “If the issue is that women of color are not funny . . .  that’s not the case.”


What effect this will have on future casting selections remains to be seen, but the eyes of the comedy world—and beyond—will be watching closely during the years to come.


Keywords: litigation, minority, trial lawyer, Saturday Night Live, diverse, casting decisions, black female comedians, MADtv, Lorne Michaels, Kenan Thompson, Jay Pharaoh


Joseph M. Hanna, Goldberg Segalla, Buffalo, NY


 

October 16, 2013

Can an Undocumented Immigrant Who Passes Bar Be Allowed to Practice Law?


On September 4, 2013, the Supreme Court of California heard oral arguments for In re Sergio C. Garcia on Admission S202512, a case that will determine whether Sergio C. Garcia, an undocumented immigrant who passed the California Bar Examination, can practice law in the state as a licensed attorney. Garcia is 36 years old and has lived in the United States for the past 20 years, attending high school, college, and earning his JD from Cal Northern School of Law in Chico, California. He has also been in the process of obtaining citizenship with his green card on a waiting list for the past 16 years.


The primary issues in the case involve whether a law license is considered the type of “state or local public benefit” Congress intended under federal statute 8 U.S.C. § 1621(c)(1)(A) and also whether the power to license lawyers rests with state courts. A state or local public benefit in Section 1621 is defined as “any grant, contract, loan, professional license, or commercial license provided by an agency of a state or local government or by appropriated funds of the state or local government.” California State Bar examiners argued that:


given that section 1621(c) specifically addresses State agencies, and makes no mention of the Courts, it logically follows that Congress did not intend for the statute to apply courts thereby upholding the plenary role of courts in matters pertaining to bar admissions. Furthermore, the California State Bar examiners believe that 8 U.S.C. § 1621(d) permits states to make professional licensure possible for undocumented immigrants through enactment of a state law.


Attorney General Kamala Harris supported Garcia in amicus curiae brief.


The Department of Justice argued that 8 U.S.C § 1621 prohibits the court from issuing a law license to Garcia because the court and the license are “provided . . . by appropriated funds of a state.” However, Department of Justice attorney Daniel Tenney noted that an outlet available would be if state enacted legislation that would provide Garcia eligibility for a law license.


Although the Supreme Court of California has yet to issue a final decision on the case, Governor Jerry Brown signed into law Assembly Bill 1024, allowing undocumented immigrants who have passed the California Bar to receive a law license. The particular language of the bill is as follows:


 Upon certification by the examining committee that an applicant who is not lawfully present in the United States has fulfilled the requirements for admission to practice law, the Supreme Court may admit that applicant as an attorney at law in all the courts of this state and may direct an order to be entered upon its records to that effect. A certificate of admission thereupon shall be given to the applicant by the clerk of the court.


Keywords: litigation, minority, trial lawyer, Assembly Bill 1024, undocumented immigrants, law license, state law


Janice Arellano, student, Temple University Beasley School of Law, Philadelphia, PA


 

October 8, 2013

NFHA Finds BOA Still Discriminating in Minority Community Foreclosures


The National Fair Housing Alliance (NFHA) found that Bank of America Corp. (BOA) continues to discriminate through its housing foreclosure practices. The bank allegedly fails to maintain and market foreclosed homes in minority communities while making an effort on homes in predominantly white areas.


NFHA filed a complaint with the Department of Housing and Urban Development in 2012, alleging that BOA discriminated against residents of primarily black and Hispanic neighborhoods by not properly handling foreclosed homes in those communities. This has purportedly led to a decline in property value and perpetuates housing segregation.


On September 25, 2013, NFHA sought to expand its original complaint to add new evidence showing that BOA has not addressed its practices since the case was initiated. In addition, the amendment seeks to add cities where problems have been found including Memphis, Tennessee, Denver, Colorado, Las Vegas, Nevada, Tucson, Arizona, and Philadelphia, Pennsylvania. If the amendment is granted, the complaint will identify a total of 18 metropolitan areas that are affected.


According to NFHA, properties in minority neighborhoods were far more likely to have multiple deficiencies. Houses in minority communities were twice as likely to have more than 10 deficiencies. The specific problems become even more visible when looking at cities individually. 


In Tucson, 93 percent of the foreclosed properties in Hispanic neighborhoods lacked a “for sale” sign, yet only 33 percent of the properties in white communities had the same problem. In Dayton, Ohio, homes in black neighborhoods had mounds of beer cans and other trash on the lawn, but homes in white neighborhoods had freshly mowed lawns. In Denver, homes in minority communities were 9.3 times more likely to have a broken lock or window.


NFHA says these issues violate federal fair housing laws by discouraging purchasers from buying homes in minority communities. Further, even where homes are sold, the sales are not helping the neighborhoods. The ongoing neglect is “allowing investors to snatch up these foreclosures, turning them into neighborhoods of absentee landlords.”


BOA said that it “applies uniform practices to the management and marketing” of properties across the country. Additionally, the bank said previous claims “revealed numerous, material flaws in their methodology and how they represented that information publicly.” 


The NFHA filed two similar cases against U.S. Bank and Wells Fargo. The U.S. Bank case was in the process of negotiations but has since stalled. Earlier this year, Wells Fargo agreed to settle the claims for $42 million, which is to be used for promoting homeownership, neighborhood stabilization, and property rehabilitation in minority communities.


Keywords: litigation, minority, trial lawyer, fair housing laws, foreclosure practices, segregation, discrimination, minority communities, National Fair Housing Alliance, Bank of America Corp.


Joseph M. Hanna, Goldberg Segalla, Buffalo, NY


 

September 20, 2013

FBI Loses Discrimination Suit Against Disabled War Veteran


In August, 2013, a Virginia federal jury found that the FBI discriminated against a disabled war veteran. The veteran, Justin Slaby, was awarded damages and may soon be reinstated to the special agent training program. However, in a brief filed after trial, the FBI contended that Slaby cannot be reinstated until 2015 due to budgetary reasons. 


Slaby filed a discrimination suit against the FBI after he was dismissed from the training program to become a special agent. He is a former Army Ranger and served three tours in Irag and Afghanistan. In 2004, while preparing for a fourth tour, Slaby lost his hand when a grenade prematurely detonated during a training exercise.


A few years later, Slaby began the process to become a special agent and passed a “fit for duty” examination. FBI medical officer, James Yoder, testified that Slaby was in a “gray-zone area” of passing but it was determined that “he deserved an opportunity.” He became the first trainee at the FBI academy with a prosthetic hand. However, six weeks into the 21-week training program, Slaby was dismissed from training in 2011. Firearms instructors say he was released because he could not safely handle a handgun with his prosthetic left hand.


Slaby disagreed with the academy’s decision and filed his discrimination suit in July 2012. He still works at the FBI as a support staff member of a hostage rescue team, but he is not a special agent.


At trial, Slaby’s attorneys argued that he was subjected to higher scrutiny from his first day at the academy. The attorneys say he was released from training after he could not meet certain standards that were not even required. One firearms instructor testified that shooting with a nondominant hand is not technically a requirement, but the agency needs to make sure agents can do so just in case the agent is injured in a shootout. Yet, another trainer testified that agents do not usually need to demonstrate proficiency in shooting with a nondominant hand.


Slaby also showed the jurors that he could hold and pull the trigger of a handgun with his prosthetic hand. He held the model gun, crouched down, looked through the sights, and pulled the trigger.


The case has been the source of friction within the FBI, and is being followed by advocates for the disabled and the law enforcement community. The case has also been the source of friction inside the agency. One former FBI office head is under investigation for trying to influence an agent’s testimony. The supervising agent told the agent that he should “come down on the side of the government.”


Others in the FBI don’t understand why he was dismissed from the academy. Slaby’s supervisor testified that Slaby is an “absolutely outstanding employee” and would be glad to have him if he were in trouble.


The jury awarded Slaby $75,000 in mental anguish damages, and he is expected to get between $66,000 and $78,000 in back pay. In addition, Slaby may be reinstated to the training academy. A hearing was scheduled on September 12, 2013 to determine if Slaby could be reinstated immediately. He contends that the longer it took for reinstatement, the worse off he would be. The FBI says, due to financial difficulties and budgetary restrictions, it can not reinstate him until 2015. 


The scheduled hearing was postponed due to ongoing settlement negotiations. It appears that perhaps the parties will find some middle ground for Slaby’s reinstatement.


Keywords: litigation, minority, trial lawyer, FBI, discrimination lawsuit, special agent, training program, disability, war veteran, mental anguish damages


Joseph M. Hanna, Goldberg Segalla, Buffalo, NY


 

September 18, 2013

Paula Deen Lawsuit Dropped


Former Food Network celebrity chef, Paula Deen, will no longer face discrimination claims from a former employee in court. In late August 2013, lawyers for Deen’s former employee, Lisa Jackson, signed a deal to drop a discrimination and sexual harassment lawsuit against the celebrity chef and her brother.


A document filed in U.S. District Court in Savannah said both parties agreed to drop the lawsuit “without any award of costs or fees to any party.” Further, the order closed the case “with prejudice,” meaning Jackson can’t sue again over the same issues.


Jackson sued Deen and her brother, Bubba Hiers, alleging that she suffered sexual harassment and racially offensive employment practices. Jackson claimed that the offensive conduct occurred during her five years as the manager of Uncle Bubba’s Seafood and Oyster House. Deen is co-owner of the restaurant which is primarily run by her brother. Jackson claimed that Hiers frequently made jokes containing racial slurs at work and prohibited black workers from using the restaurant’s front entrance.


The agreement to drop the case came less than two weeks after Judge William T. Moore threw out the suit’s race discrimination claim. Judge Moore held that Jackson, who is white, had no standing to sue over allegedly poor treatment of black workers. Jackson originally claimed that she was personally offended because she had biracial nieces. Deen’s attorneys said in court filings that the lawsuit was based on “scurrilous and false claims.”


Since the case has been dismissed, Jackson retreated from her allegations that Deen held “racist views.” Jackson said “I assumed that all of my complaints about the workplace environment were getting to Paula Deen, but I learned during this matter that this was not the case . . . The Paula Deen I have known for more than eight years is a woman of compassion and kindness and will never tolerate discrimination or racism of any kind toward anyone."


The judge is still planning a hearing on whether Jackson’s lead attorney, Matthew Billips, should be sanctioned for alleged unprofessional conduct. Deen’s lawyer claimed that Billips threatened Deen with embarrassing media exposure, made inappropriate comments about the celebrity chef on Twitter, and purposefully asked Deen embarrassing and irrelevant questions during her deposition. 


The lawsuit received little public attention until Jackson’s lawyer questioned Deen under oath. Deen admitted in testimony that she has used racial slurs in the past. Within days, the Food Network terminated Deen’s renewal contract, and yanked her shows off the air. Additionally, retailers including Wal-Mart and Target took Deen products off the selves. Deen’s longtime agent, Barry Weiner, parted company with Deen in the wake of her public scandal. 


Deen responded to the suits dismissal saying “[w]hile this has been a difficult time for both my family and myself, I am pleased that the judge dismissed the race claims and I am looking forward to getting this behind me, now that the remaining claims have been resolved.”


Keywords: litigation, minority, trial lawyer, Paula Deen, racial discrimination, Food Network


Joseph M. Hanna, Goldberg Segalla, Buffalo, NY


 

September 17, 2013

Ban on Conversion Therapy Upheld


California’s ban on a controversial therapy, a process aimed at reversing homosexuality in children under 18, was upheld by the U.S. Court of Appeals for the Ninth Circuit on August 29, 2013. The ruling validates the state’s authority to prohibit mental therapies that the legislature has deemed harmful and was a major victory for gay-rights advocates.


The conversion therapy ban litigation stems from two separate cases. Among those who challenged the law were therapists, Christian groups, and parents. Challengers argued that the ban violated the free speech of therapists to discuss gay conversion with young patients. Additionally, they argued that the ban “walked” on parents’ religious freedom to seek therapy to convert their children from homosexuality. 


One federal judge blocked enforcement of the law while the case was on appeal, while another refused to issue an injunction to disarm the ban. On appeal, the Ninth Circuit lifted the injunction against the ban, and affirmed the law’s validity.


While the ruling signals a big win for gay-rights advocates, the Pacific Justice Institute (PJI), one of the organizations challenging the ban, has vowed to ask the court to reconsider the case. PJI’s president responded to the court’s ruling stating “[t]his decision is a dark day for those who believe in the First Amendment and the right of parents over the proper upbringing of their children.”


The ban was passed by lawmakers in August 2012 and signed by Governor Jerry Brown in September 2012. The law bars doctors, psychologists, family therapists, and social workers from providing sexual-orientation conversion therapy to patients under the age of 18. Violators are subject to discipline by state licensing entities. California legislators and gay-rights advocates sought to abolish the therapy arguing that its negative effects can lead to depression and even suicide among those subjected to it. They argued that conversion therapies stigmatize youth, and can lead to severe mental and emotional complications.


Individuals who were previously forced to undergo conversion therapy are applauding the court for upholding the ban. The former patients testified about the therapy’s harmful effects, and have labeled the therapy as a “barbaric treatment.”


Opponents of the law still argue that California’s law will pave the way for other states to adopt similar legislation. In fact, they are right. In April 2013, Governor Chris Christie recently adopted a similar ban on gay conversion therapy in New Jersey. That law has now been challenged in federal court.


The author of the California law, Senator Ted Lieu, stated: “[t]oday's federal court opinion puts another nail in the coffin for the discredited and harmful practice of gay-conversion therapy . . . Now the law has caught up to the truth: Sexual orientation is not a mental illness or defect.”


Keywords: litigation, minority, trial lawyer, gay-conversion therapy, California, ban, gay rights, free speech, freedom of religion, Governor Jerry Brown


Joseph M. Hanna, Goldberg Segalla, Buffalo, NY


 

September 16, 2013

Merrill Lynch Agrees to One of the Largest Discrimination Settlements in History


On September 4, 2013, an Illinois federal judge granted preliminary approval to one of the largest settlements in the history of discrimination cases in the United States. Merrill Lynch, one of the country’s largest brokerage firms, agreed to settle an eight-year-old racial discrimination lawsuit for $160 million. The case was originally filed by George McReynolds, a broker at Merrill Lynch, in 2005. However, over time, it has grown to more than 1,200 plaintiffs and seen two appeals before the U.S. Supreme Court. 


The suit alleged that Merrill Lynch discriminated by providing more opportunities and compensation to white employees than African Americans. McReynolds says that he unsuccessfully tried several times to handle the issue internally. When those efforts failed, he filed suit. At the time of the initial filing, only 700 of the 14,000 brokers at Merrill Lynch were African American. McReynolds says he was one of only two African Americans hired in Tennessee in 1983. Another African American employee was not hired in that location until 1987. 


After the suit was filed, plaintiffs alleged that they found that more of the company’s offices were also engaging in discrimination. Plaintiffs claim that client accounts are distributed based on past performance in generating revenue. However, African American employees “are disadvantaged because they weren’t receiving the same kinds of business opportunities.” Thus, they were stuck on poor performing teams and consequently, were not given more the profitable accounts. Additionally, employee bonuses were based on the same performance indicators.


Plaintiffs contended the racial bias also led to higher attrition rates of African Americans.  Yet, those who left the company were not faring any better than those that stayed. The employees say the company’s actions held those employees back and stunted their career growth.


After the preliminary approval, a spokesman for Merrill Lynch stated, “This is a very positive resolution of a lawsuit filed in 2005 and will enhance opportunities for African American financial advisors.”


The plaintiffs’ attorney says the settlement should create changes throughout the industry, not just at Merrill Lynch. She says “[t]hey are a leader on Wall Street. And increasing opportunities at Merrill Lynch should spill over to the rest of Wall Street.” 


In addition to a monetary payout, Merrill Lynch agreed to appoint two experts to review its teaming and pooling policies. The experts, to be selected by both sides, will spend one year visiting various offices and interviewing personnel before reporting on the company’s policies. In addition, Merrill Lynch will change its training policies. Two coaches will be appointed and assigned to African American trainees in an attempt to lower the high attrition rate.


All plaintiffs will be given the choice to participate or opt out of the settlement. Those who opt out will have to pursue claims against Merrill Lynch on their own.


Keywords: litigation, minority, trial lawyer, discrimination, Merrill Lynch, racial bias, attrition rates, settlement


Joseph M. Hanna, Goldberg Segalla, Buffalo, NY


 

August 9, 2013

A Heart-Wrenching Supreme Court Case Goes Relatively Unnoticed


In the wake of several highly anticipated Supreme Court decisions issued at the end of June 2013, one case seems to have been overlooked—the emotional dispute of Adoptive Couple v. Baby Girl. The case dealt with the adoption of a Native American child by a white couple and the Indian Child Welfare Act (ICWA). 


Baby Veronica was the child of a white mother and a Cherokee father. Veronica was given up at birth and adopted by a South Carolina couple. The biological father, Dusten Brown, was estranged from the biological mother and did not support her during the pregnancy. Under generally applicable adoption laws, his consent would not have been required for the adoption because of his abandonment. However, after the adoption was finalized, he used the special privileges Native American parents are granted by the ICWA to challenge the adoption.


In the past, many Native American parents had their parental rights involuntarily terminated and their children placed in non-Indian households. The ICWA was passed in 1978 to prevent the “breakup of the Indian family.” The law was used to counter forced removals of Native American children from their homes and communities. 


Part of the federal law creates mandatory administrative procedural rules before the termination of the parental rights of a parent of an “Indian child.” An Indian child is defined as a child that is a member or eligible for membership in an Indian tribe and is the biological child of an Indian tribe member. These procedures include things such as notifying the father and the tribe and giving the tribe the opportunity to assume jurisdiction over the case. Also, the law gives preference to placement of the child with a relative, another family from the same tribe, or an Indian family from another tribe.


Since Veronica is 1.3 percent Cherokee and Brown is a member of the Cherokee tribe she fell under the ICWA. However, ICWA administrative procedures were not followed.  After the adoption, Veronica lived with the adoptive parents for over two years while the challenge made its way through the courts. The South Carolina courts ruled that the ICWA barred the adoption because the procedures were not followed. When the South Carolina Supreme upheld the lower court’s decision, after two years with the adoptive parents, custody was granted to the Brown. 


The U.S. Supreme Court, in a 5-4 decision, reversed the South Carolina Supreme Court.  The Court said the ICWA did not apply to this situation. It interpreted Section 1912(f), the portion of the law addressing involuntary termination of parental rights, as “excluding cases in which the Indian parent never had legal or physical custody of the child.” The majority held that Section 1912(f) only applies to cases where a child is being removed from an existing Indian family. Here, the court said, there was no Indian family to “break up” because the father has abandoned the child before birth.


The ruling limits the application of the ICWA and some feel it is exactly opposite of the Court’s holding in Mississippi Band of Choctaw Indians v. Holyfield, the only other Supreme Court case on the ICWA. 


However, the Court did not grant custody to the South Carolina adoptive parents with its ruling. It left it up to the South Carolina courts to decide who the appropriate parents are. The court will determine, outside of the scope of the ICWA, which parents are in the best interest of Veronica. She will turn four in September and has not seen her adopted parents in 18 months. 


Keywords: litigation, minority, trial lawyer, adoption, Native Americans, Indian Child Welfare Act, parental rights


Joseph M. Hanna, Goldberg Segalla, Buffalo, NY


 

August 6, 2013

Judge Enters Consent Decree to Remove Racist Graffiti


A national food distributor finally resolved a race discrimination suit involving obscene and racial graffiti at the company’s warehouse in Mason City, Iowa. A federal magistrate judge entered a consent decree on June 25, 2013, resolving the U.S. Equal Employment Opportunity Commission’s (EEOC) 2012 racial harassment suit against Meadowbrook Meat Company Inc. (MBM), one of the nation’s largest food distributors for restaurant chains. The EEOC filed the action in 2012 after first attempting to reach a pre-litigation settlement with MBM.


The EEOC alleged that MBM failed to remove racist graffiti in the men’s restroom at MBM’s Mason City warehouse. The obscene graffiti included a swastika and references to the Ku Klux Klan. The graffiti remained on the walls for months, despite complaints from African American employees.


The EEOC claimed that although MBM supervisors used the vandalized restroom after hearing complaints from African American employees, the messages remained on the walls for 30 days. After MBM finally removed the graffiti, a second racist slur appeared on the bathroom wall. Even after employees alerted the EEOC of the situation, the graffiti remained visible for over three months.


MBM’s alleged failure to remove the racial slurs violates Title VII of the Civil Rights Act of 1964, prohibiting race discrimination. However, MBM claimed that two of the three employees who allegedly saw the graffiti never reported it. Further, MBM claimed that the company inspected the bathroom after employees complained but did not find any racial graffiti.


The federal magistrate judge’s consent decree finally settles the dispute. The decree provides that MBM will pay $15,000 in compensatory damages to three former employees who saw the graffiti. Additionally, MBM agreed to repaint the restroom with graffiti-resistant paint, and adopt a policy prohibiting racist imagery. MBM will also train company personnel regarding race discrimination and encourage compliance with new company programs to prohibit racist imagery.  


EEOC attorney John C. Hendrickson said “[R]acial hatred has no place anywhere in America . . . We are as committed as ever to eradicating race discrimination in the workplace. We appreciate MBM’s willingness to provide monetary relief for the black employees affected by the race discrimination and to work with us to prevent race discrimination in its facilities.”  


Keywords: litigation, minority, trial lawyer, graffiti, race discrimination, racist slurs, Title VII, workplace


Joseph M. Hanna, Goldberg Segalla, Buffalo, NY


 

August 5, 2013

Transgender Individuals Starting to See Progress in Law


In recent years, gay Americans have slowly been making their way to equality; the Supreme Court struck down part of DOMA defining marriage as one between a man and a woman, the “don’t ask, don’t tell” policy has been repealed, and much more. However, it appears one group in the LGBT community has been left behind. Transgender Americans still struggle for a foothold in equality laws and are stuck where gay Americans were a few years ago. Signs suggest that there may be hope on the horizon as issues regarding discrimination based on sexual identity rise to the forefront.


For years, a bill known as the Employment Non-Discrimination Act (ENDA) has been presented to Congress. The bill prohibits hiring and employment discrimination based on sexual orientation or gender identity.  Sexual orientation has always been part of the bill, but gender identity was added to ENDA for the first time in 2007. With the exception of the 109th Congress, the bill has been introduced to every Congress since 1994. Every year, ENDA has been declined.


On July 10, 2013, transgender individuals won a small victory in the U.S. Senate. The Senate Committee on Health, Education, Labor and Pensions passed ENDA by a 15-7 vote. This makes the LGBT community one step closer to equality under federal law.  Currently, 29 states do not prohibit sexual orientation discrimination, 33 states do not ban discrimination based gender identity and no federal law prohibits either. 


If passed the bill would apply to all nonreligious employers with at least 15 employees.  This would expand the protection granted by a 2012 Equal Employment Opportunity Commission (EEOC) ruling. According to that ruling, discrimination based on gender identity is prohibited as sex discrimination under Title VII. However, this decision only applies to EEOC actions and federal agencies and departments.


Some states have been affording protection to transgender individuals in contexts other than employment. A bill passed in California on July 3, 2013, allows public-school transgender K-12 students to make decisions based on their own gender identity.  The bill gives students the right “to participate in sex-segregated programs, activities, and facilities” based on self-perception rather than birth gender. The California law was the first of its kind to be written into statute.  Two other states have policies that dictate the same result: Massachusetts and Connecticut.


Similar issues have arisen in other states as well. In Colorado, a first-grade student that was born a boy but has self-identified as a girl for years was banned from using the girls’ bathroom. She is identified as a female on her passport and medical records, and the school initially agreed to treat her as a girl. Then, in December 2012, the school district ordered her to use the boys’ bathroom. The Colorado Civil Rights Division disagreed with the school’s decision. Colorado law prohibits discrimination based on gender identity. The Colorado Civil Rights Division ruling compared the school’s actions to Jim Crow laws and called them hostile, intimidating, or offensive.


Even with these big changes occurring in some states, problems still exist in others.  Issues relating to the name or gender on a transgender individual’s license or passport can become a problem in everyday life. These individuals are turned away from jobs, banks, hotels, and more because the perception of others doesn’t match the information on the documents. It doesn’t help that the process to change your name or gender can be complex and confusing for those not familiar with how to do so. Changing this information can be costly and even cost prohibitive depending on the location. 


The progress made in recent years is a glimmer of hope. Yet, there is still much progress to be made. American society is coming closer to equality each day, but those in the legal field must remain vigilant and active.


Keywords: litigation, minority, trial lawyer, transgender, sexual identity, discrimination, gender identity, equality laws


Joseph M. Hanna, Goldberg Segalla, Buffalo, NY


 

August 1, 2013

Eleventh Circuit Affirms the Dismissal of Title VII Claim


Recently, the U.S. Court of Appeals for the Eleventh Circuit affirmed the dismissal of a Title VII employment discrimination claim. Laincy v. Chatham County Bd. of Assessors, 2013 U.S. App. LEXIS 10646 (11th Cir. 2013). The plaintiff, Alix Laincy, was a former employee of Chatham County, Georgia. Laincy, a male clerical assistant, was denied a promotion to the position of appraiser while two women in his department were promoted. Additionally, on several different occasions, a woman coworker asked Laincy if he had been dating anyone. The coworker was trying to match Laincy up with friends of hers for blind dates. Laincy complained about the harassing behavior of the coworker. Soon after, Laincy was fired.


Laincy sued Chatham County under Title VII sex discrimination and a claim of retaliation against employees who oppose unlawful sex discrimination. The district court granted Chatham County’s motion for summary judgment on both claims. The Eleventh Circuit affirmed. The Eleventh Circuit found that Laincy did not rebut the county’s proffered reason for promoting two women as appraisers rather than him. The court held that since the two women took appraisal classes and Laincy had not, they had a legitimate, nondiscriminatory reason for promoting them over Laincy. Additionally, under the county policy, Laincy was not eligible for promotion until his initial probationary period with the county was over.


As to Laincy’s harassment and retaliation claim, the court concluded that Laincy’s belief that his coworker’s allegedly harassing comments constituted unlawful employment practice was not objectively reasonable. The court rejected Laincy’s retaliation claims, and cited Butler v. Alabama Dep’t of Transportation, which held that the employee “must show that the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.”


The comments were not threatening, humiliating, or offensive and did not interfere with Laincy’s job performance. Since nothing in the coworkers conduct constituted harassment, the court found that the county’s action to terminate Laincy was not in retaliation for his harassment complaint.


Keywords: litigation, minority, trial lawyer, employment discrimination claim, retaliation, harassment


Joseph M. Hanna, Goldberg Segalla, Buffalo, NY


 

July 31, 2013

Former American Idol Contestants Accuse Show of Racial Discrimination


Nine former American Idol contestants are striking back at the show. On Wednesday, July 24, 2013, nine former contestants filed a complaint in New York federal court against American Idol producers claiming that the show systematically disqualified African American contestants while sparing Caucasian contestants for the competition. The plaintiffs are seeking class-action status.


The nine complainants were all contestants at some point during the show’s previous 11 seasons. After conducting background checks, the show’s investigators discovered that they had criminal backgrounds and disqualified them as contestants.


In a January 2013 letter to the U.S. Equal Employment Opportunity Commission, James Freeman, attorney for the former contestants, requested permission to file suit. Freeman claimed that the show has purportedly made the nine African American contestants appear to be “violent criminals, liars, and sexual deviants” by illegally obtaining contestants’ criminal backgrounds through a process called “contestant vetting.” The 429-page complaint accuses American Idol producers of publicly humiliating African American contestants but never attempting to expose similarly situated Caucasian contestants.

The complaint alleges that “a staggering 31 percent of every American Idol semi-finalist contestant . . . who happened to be a young black male was disqualified from the singing competition for reasons wholly unrelated to their singing talent.” Freeman claims that the unusually high number of African American men disqualified from the show illustrates a trend of “destructive stereotypes” against African Americans.


American Idol executive producer Nigel Lythgoe responded to the suit and said “[w]e treat everybody the same . . . no matter the race, religion, or sex. I think we’ve always had a fantastic share of talent from contestants both black and white . . . . I don’t think I’ve ever seen racism at the show.”


Other former African American contestants insist that the singing competition is not racist. Season-six finalist Melinda Doolittle adamantly disagrees  with the allegations; “It is shocking to see such allegations. In my experience on the show, the ‘Idol’ team strives to champion everyone, regardless of race. However, each contestant is explicitly told that the withholding of information that may compromise the show or artist, can and will result in immediate disqualification.”


Some commentators believe that even if the case moves forward, the former contestants will not likely succeed. Other race-discrimination suits filed against television shows, including The Bachelor, found that casting decisions by television producers are protected by the First Amendment. Even if this case is brought under civil-rights law, it will be difficult for the plaintiffs to prevail. Each contestant is seeking $25 million in damages.


Keywords: litigation, minority, trial lawyer, racial discrimination, American Idol, television shows, casting decisions, class actions


Joseph M. Hanna, Goldberg Segalla, Buffalo, NY


 

June 25, 2013

California's Ban on Gay Conversion Therapies Challenged in the Ninth Circuit


The U.S. Court of Appeals for the Ninth Circuit heard oral arguments in April to strike down California’s ban on gay conversion therapy. In October 2012, California Governor Jerry Brown signed bill SN 1172, banning psychotherapists from engaging in gay conversion therapy for minor children.


The law outlaws psychological therapy that tries to convert homosexual minors into heterosexuals. The practice is promoted by a small group of therapist who believe sexual orientation is not inborn and can be changed through psychoanalytical treatment. SB 1172 combats “any practices” that tries to convert a minor’s sexual orientation. Proponents of the bill argued that “being lesbian, gay, or bisexual is not a disease, disorder, illness, deficiency, or shortcoming” that requires curing. The law was set to take effect in the beginning of 2013.


However, a group of therapists and parents challenged the law in January of this year, arguing that the ban violates free speech, religious rights, and threatens the livelihood of practicing therapist to have gay conversion discussions between patients and their counselors. Although other states have followed suit and considered similar legislation, the Ninth Circuit put the law on hold after two Sacramento federal judges were split over its constitutionality.


The Pacific Justice Institute and Liberty Counsel, two conservative legal groups spearheading the appeal argue that the case is “about protecting the First Amendment rights of young people to get the counseling they feel they need, their parents may feel they need and that a licensed counselor may feel they need.” In their view, the government is hyper-regulating a free speech issue in the name of professional regulation.


Proponents argue that “all legitimate mental health and medical associations have come out against SOCE, saying it is ineffective and often harmful.” James Guay voluntarily tried to change his sexual orientation as a kid through weekly conversion sessions. Guay said “there is psychological abuse that often takes years to recover from when participating in this particular therapy.


During oral arguments, counsel for both sides struggled to answer the panel’s questions. Deputy attorney general Alexandra Robert Gordon had difficulty identifying empirical evidence that conversion therapy is harmful to minors, while Kevin Snider of the Pacific Justice Institute likewise had no proof that the therapy in fact works.


Nonetheless, the showdown over the law’s destiny is being closely monitored by other states, which will likely enact similar laws if California’s bill withstands the appeal.


Keywords: litigation, minority, trial lawyer, gay conversion therapies, ban, minor's sexual orientation, California, constitutionality, First Amendment rights


Joseph M. Hanna, Goldberg Segalla, Buffalo, NY


 

June 25, 2013

Second Circuit Decides FDNY Entrance Exam Discrimination Case


On May 15, 2013, the Court of Appeals for the Second Circuit reversed, in part, a district court’s finding of intentional discrimination by the New York City Fire Department (FDNY) against African American firefighter candidates. In August 2002, a group of FDNY firefighters filed suit claiming that the department’s written entrance exam disparately eliminated African American applicants.


Results showed that there was significant imbalance between Caucasian and African American passing rates for the entrance exam Caucasian applicants passed at rates ranging from 89.9 percent to 97.2 percent. For African Americans, passing rates only ranged from 60.3 percent to 85.4 percent. The firefighters claimed that FDNY’s continued use of the exam constituted intentional discrimination. The department asserted the exam was facially neutral, and that the city made efforts to increase minority hiring through targeted recruitment.


District Court Judge Nicholas Garaufis held that the department failed to “meet or undermine the [plaintiffs’] statistical evidence” of discrimination The court awarded summary judgment for the firefighters.  However, the Second Circuit reversed the judge’s finding of intentional discrimination. FDNY argued to remove Judge Garaufis entirely from the case for bias because of expressed criticisms of the FDNY, but the court found that too extreme and took Judge Garaufis off the case for remand only.


The Second Circuit found that the City could produce “evidence to show that it did not have such intent.” The court said “the city produced evidence attempting to rebut the inference that it acted with a discriminatory intent. It articulated a nondiscriminatory reason for using the challenged exams—the fact that they were facially neutral.”


The court upheld most of Garaufis’ remedial orders, including appointing a court monitor over the FDNY and its hiring practices. The circuit reduced the court monitoring term and stripped away an order for the FDNY to retain an outside consultant for equal employment recruitment guidance.


The FDNY saw the Second Circuit’s ruling as a victory for the city. Michael Cardozo, corporation counsel for the City of New York said “we are extremely pleased that the Second Circuit recognized significant problems in the manner in which the District Court handled the case.”


The plaintiffs saw the ruling as somewhat of a win, claiming that they were please the panel upheld a bulk of the remedial orders. The Second Circuit remanded the case to decide whether “the lack of job-relatedness of the [e]xams should have been apparent to the City and whether the City’s use of the [e]xams, once their racially disparate impact was known, proves, in light of the history of low minority hiring, that the City used the [e]xams with the intent to discriminate.”


Keywords: litigation, minority, trial lawyer, intentional discrimination, New York City Fire Department, African Americans, firefighter candidates, entrance exams, passing rates


Joseph M. Hanna, Goldberg Segalla, Buffalo, NY


 

June 25, 2013

Struggling for Diversity


American minorities are still struggling for a foothold in the legal profession. While minorities comprise 22 percent of the U.S population, they only make up approximately 14 percent of the legal profession.  However, there may be hope on the horizon. Currently, the United States has its highest rate of minority attorneys of all time, an improvement from the astonishingly low rates of 50 years ago. The profession seems to be slowly making its way to the levels that other professions have already achieved. By contrast, minorities made up at least 22 percent of the physicians in the country.


The 2008 financial decline took its toll on the legal profession. Prior to the collapse, diversity percentages were the same as they are now. When the economy took a turn, the numbers dipped. 


While we are making it back to the high point of diversity, there hasn’t been much change in the diversity of the profession. Since 2008, Asian Americans and Hispanics have made up the same percentage of attorneys, 6.2 percent and 3.1 percent respectively.  One source says these groups are still making progress. The number of summer associates from these racial backgrounds has been increasing. One group, who identify themselves as multiracial/other, has seen the only notable increase. Five years ago, that group made up 1 percent of the profession. In 2012, they made up 1.5 percent.


The African American population seems to be having the toughest time gaining access to the profession. In recent years, the number of African Americans in the legal profession has decreased. Five years ago, African Americans accounted for 3.6 percent of the legal professions’ make up, today, that number has fallen to 3.1 percent. That news alone is bad news, yet, other research shows that the problem is even worse. While the number of African American law students has increased, the number of African American summer associates and first-year attorneys has fallen. Additionally, African Americans consistently report the lowest levels of job satisfaction. The lack of African-American attorneys can be seen as high up as the Supreme Court.  From October 2012 to April 2013, the court heard arguments from only one African-American lawyer.  Of the 75 hours of oral arguments, that attorney appeared for only 11 minutes


It’s not just racial diversity that seems to be lacking, but, gender diversity as well.  Women only make up 20 percent of the partners at large law firms. At the higher ranks.  only 15 percent of the equity partners were women. 


Keywords: litigation, minority, trial lawyer, diversity, legal profession


Joseph M. Hanna, Goldberg Segalla, Buffalo, NY


 

June 25, 2013

Supreme Court Upholds Affirmative Action in Collegiate Setting


The Supreme Court’s 7-1 ruling on Monday, June 24, 2013, allowed affirmative action to stand in the college admissions context. Many have anxiously awaited the decision since oral arguments in October 2012. Some feared the court’s conservatism compared to 2003 would result in a limitation or elimination of affirmative action.


The case, Fisher v. University of Texas at Austin, arose after Abigail Fisher, a white woman, was denied admission to the University of Texas in 2008. The school admits a majority of its incoming class using a race-neutral approach known as the Top 10 program; it guarantees a seat for any student graduating above a certain percentage in his or her high school class. Remaining admissions are based on a number of factors, one of which is race. Fisher was just outside of the top 10 percent of her class, and was not awarded one of the remaining slots where race was a factor. She filed suit claiming the race-conscious admission policy violated the Equal Protection Clause of the Fourteenth Amendment. She asked the Court to strike down the admission policy or overrule its previous decision in Grutter v. Bollinger that reaffirmed the validity of affirmative action in colleges.


The district court and Fifth Circuit Court of Appeals held in favor of the university by upholding its policy. The Supreme Court avoided the constitutionality of the policy in its decision but stated that the lower court misapplied the “strict scrutiny standard.” The court ruled that the university should not receive any deference regarding its admissions policy and the Fifth Circuit “presumed that the school had acted in good faith.”


Justice Anthony M. Kennedy said, “Strict scrutiny must not be strict in theory but feeble in fact.” The standard “does not permit a court to accept a school’s assertion that its admissions process uses race in a permissible way without closely examining how the process works in practice. The court reiterated that racial diversity in schools is a sufficient enough interest to outweigh the ban on racial classifications. However the school “must prove that the means chosen . . . are narrowly tailored to that goal.”


Showing an admissions policy is narrowly tailored will require the university to prove it is “necessary . . . to use race to achieve the educational benefits of diversity.” On remand, the Fifth Circuit will engage in “a careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications.” 


The school may have some trouble proving this. The Supreme Court decision discusses two other admission policies that the school used. First, a 1996 policy that did not consider race resulted in an entering class that was 4.5 percent African American and 16.9 percent Hispanic. Second, a 1997 policy that considered race resulted in a class with 4.1 percent African Americans and 14.5 percent Hispanics. Additionally, classes enrolling in recent years under the Top 10 program have been approximately 6 percent African American and 25 percent Hispanic.


The emphasis placed on “strict scrutiny” may change the opinion of the lower court.  However, the ruling is unlikely to have a major impact on universities and businesses alike.  The modest opinion only sends the case back to determine whether the program is narrow enough.


Keywords: litigation, minority, trial lawyer, affirmative action, Fisher v. University of Texas, college admissions, school policies, race, strict scrunity


Joseph M. Hanna, Goldberg Segalla, Buffalo, NY


 

May 30, 2013

Immigration Reform Bill Lands in Senate Judiciary Committee


The U.S. Senate’s bipartisan “Gang of Eight” filed an 884-page proposal for the long- anticipated Border Security, Economic Opportunity and Immigration Modernization Act of 2013 early last month. The final draft of the act was handed over to the Senate Judiciary Committee on May 9. The act makes two main proposals: (1) spend more federal money on strengthening the southwestern U.S. border to prevent illegal crossings; and (2) revamp the outdated visa system so that more foreign workers can enter the country.


The Gang of Eight indicated that the act would be a “starting point” for immigration reform, noting that it would provide a pathway to citizenship for the roughly 11 million undocumented individuals living in the United States today. Alabama Republican Senator Jeff Sessions commented that the bill is legalization first, not enforcement first. The day the bill passes there will be effective amnesty for millions of illegal immigrants, with only the same promises we have heard before of enforcement to occur at some later date.” 


A statement issued by several House of Representative members noted, “Americans want to see the nation’s broken immigration system fixed, and they know it will take bipartisanship to solve this problem in a sensible and rational way . . . We believe we will soon agree on a reasonable, common-sense plan to finally secure our borders and strengthen our economy with a tough but fair process for immigrants to fully contribute to our country that respects the rule of law.”  


The proposed act has received strong support from a variety of interest groups as well as President Barack Obama. Additionally, in the first quarter of 2013, 500 organizations and companies registered to lobby on immigration (including JP Morgan Chase & Co., MGM Resorts, and Perdue Farms, to name a few). Elsewhere, construction industry lobbyists announced their support for the bill in hopes of increasing the number of low-skilled foreign workers that construction companies would be allowed to hire.


Gay-rights activists have pushed for changes to the act which would allow U.S. citizens to sponsor their same-sex partners for residency. However, this proposed change could cause the measure to lose substantial Republican support. Republican Senator Marco Rubio of Florida, one of the eight drafters of the legislation, commented that including such an amendment “will virtually guarantee that [the bill] won’t pass the Senate.”


Rubio has continually pushed for a lengthy process of hearings and debates over the act in order to quell conservative concerns that approval of the act was moving too fast. He lashed out against what he characterized as “misinformation” campaigns by conservative media groups, efforts he believes were designed to prejudice the legislative right from supporting the measure by exaggerating the economic costs the act would impose.


Barring further delays, the act could soon emerge from the committee and be poised for passage with a strong vote in the Senate.


Keywords: litigation, minority, trial lawyer, immigration reform, citizenship, bipartisanship, Border Security, Economic Opportunity and Immigration Modernization Act


Joseph M. Hanna, Goldberg Segalla, Buffalo, NY


 

May 22, 2013

NY Court of Appeals Gets First African American Female Judge


On May 7, New York Governor Andrew M. Cuomo announced that the state senate had confirmed his April 5 nomination of Sheila Abdus-Salaam to serve as a justice on the New York State Court of Appeals. Abdus-Salaam will be the first African American woman to hold that position.


Justice Abdus-Salaam graduated from Columbia University School of Law, and began her legal career by taking a job at the East Brooklyn Legal Services center shortly thereafter. From there, she served as assistant attorney general in the Civil Rights and Real Estate Financing Bureaus, and later held the general counsel position in the New York City Office of Labor Services. Abdus-Salaam began her judicial career as a judge on the Civil Court of the City of New York in 1992. Later, she ran and was elected as a Supreme Court Justice in 1993 and 2007. Prior to her recent appointment, Salaam served as an associate justice of the Appellate Division of the New York State Supreme Court, First Department, where she has worked since 2009.


Commenting on her confirmation, Abdus-Salaam noted, “It is a true privilege to be confirmed by the New York Senate today to serve on the highest court in the Empire State. I thank the governor for his nomination and for placing his trust and confidence in me. Governor Cuomo has made it a priority to attract the best talent to public service and to make anew the great public institutions of this state, and I am honored and humbled to serve the people of New York on the Court of Appeals. I look forward to joining my colleagues on the bench, and to continuing to make the fair application of the law the hallmark of my judicial career.”


Prior to her appointment, the New York State Bar Association (NYSBA) indicated that Abdus-Salaam was “well qualified” to fill the vacancy on the Court of Appeals. NYSBA President Seymour W. James commented, “We applaud Governor Cuomo for nominating someone so eminently qualified to serve. Whether representing indigent clients as a young lawyer, protecting civil rights as an assistant attorney general, or adjudicating matters from the bench, Justice Abdus-Salaam has demonstrated wisdom, intellect, and a commitment to justice.” 


Minority-rights advocacy groups applauded the move as a positive step toward increased judicial diversity. President William Little of the Capitol District Black and Hispanic Bar Association stated, “We are happy and proud of the confirmation of Judge Abdus-Salaam to the Court of Appeals and commend the governor on this appointment which highlights his commitment to a diverse judiciary reflective of the state.” A representative from the Women’s Bar Association of the State of New York said the confirmation of Justice Abdus-Salaam “serves not only as inspiration to all professional women, but, renders the composition of the court more reflective of the legal profession and our society.”


Keywords: litigation, minority, trial lawyer, judicial nomination, confirmation, Governor Cuomo, African American, judicial diversity, New York State Court of Appeals, NYSBA


Joseph M. Hanna, Goldberg Segalla, Buffalo, NY


 

May 10, 2013

EEOC Lands Historic $240 Million Verdict

 

Last month, an Iowa jury returned a $240 million verdict in favor of the Equal Opportunity Employment Commission (EEOC) in a disability discrimination and abuse case. The award is the largest won by the EEOC in its nearly 50-year history.


The underlying action was a suit brought by the EEOC against Hill County Farms, d/b/a Henry’s Turkey Service (HTS), on behalf of 32 men with intellectual disabilities. The EEOC accused HTS of subjecting each plaintiff to severe abuse and discrimination through actions taken from 2007 to 2009. However, according to the EEOC, the mistreatment of these individuals actually spanned a period of 20 years. The jury agreed with the EEOC and granted each of the men $5.5 million in compensatory damages, $2 million in punitive damages, and $1.3 million for disability-based wage discrimination.


The allegations brought against HTS were particularly heinous. The EEOC stated that while working at a turkey processing plant, the plaintiffs were subjected to beatings, denied medical care, and forced to live in “deplorable and sub-standard” bunkhouse conditions. Sometimes, the men would be punished for misbehavior — at least one was handcuffed, and another was forced to carry heavy weights around. The abuse wasn’t entirely physical, either; the men were often verbally berated and called names such as “retarded” and “dumbass.” 


Employers are prohibited from abusing disabled employees by the Americans with Disabilities Act, legislation which makes workplace discrimination on the basis of disability illegal. Here, the EEOC argued that the intellectual disabilities of the men prevented them from recognizing their rights and objecting to the abusive behavior. Though the EEOC did try to settle this case through its typical conciliation process, they were forced to file suit after settlement talks fell through.


EEOC General Counsel David Lopez noted, “This historic verdict marks one of the EEOC’s finest moments in its ongoing efforts to combat employment discrimination, especially discrimination against vulnerable and historically underserved populations. The fact that the jury rendered the largest verdict ever obtained by the EEOC says volumes about the severity of the violation, and it illustrates this agency’s resolve to vindicate the rights of all discrimination victims.”


One of the jurors, Robin Griebel of Davenport, Iowa, expressed her belief that the award would let the plaintiffs know that “there are people out there that do care” about them. Further, Griebel hoped that the verdict would send a message to employers that such abusive behavior “cannot happen again.” 


Keywords: litigation, minority, trial lawyer, disabled employees, Americans with Disabilities Act, EEOC, discrimination, abuse, verdict


Joseph M. Hanna, Goldberg Segalla, Buffalo, NY


 

May 10, 2013

Rhode Island Becomes 10th State to Legalize Gay Marriage

 

On May 2, Rhode Island Governor Lincoln Chafee signed a bill allowing gay marriage within the state, making it the 10th state in the country to do so. That the bill passed in the legislature seemed to be no small feat—the measure to allow same-sex marriage had been introduced in the Rhode Island House of Representatives every session since 1997. However, once put to a vote, the bill passed easily, going 26-12 in the State Senate, and 56-15 in the State House.


Speaking to the state’s gay and lesbian community, Chafee stated, “I know that you have been waiting for this day to come. I know you have loved ones that dreamed this would happen but did not live to see it. But I am proud to say that now, at long last, you are free to marry the person you love.” He cited moral as well as economic reasons for his support of the measure, which had just passed a state House vote earlier that day, commenting, “The talented workers who are driving the new economy—young, educated, and forward-looking—want to live in a place that reflects their values. They want diversity, not simply out of a sense of justice, but because diversity makes life more fun.” Chafee had previously supported gay marriage as a Senate Republican back in 2004.


The passage of the measure unites the six New England states (Vermont, New Hampshire, Maine, Massachusetts, and Connecticut) in allowing the practice. Other states, including New York, Iowa, Maryland, and Washington, also permit gay marriage. The states of Minnesota, Illinois, and Delaware are expected to make decisions on the issue soon. Currently, 30 state constitutions still define marriage as being between a man and a woman.


Opponents of gay marriage voiced their opposition to the vote to no avail. National Organization for Marriage Rhode Island Executive Director Christopher Plante attempted to convince legislators that the bill required amendment to protect small businesses and other religious-based institutions opposed to gay marriage from discrimination-based lawsuits. Additionally, Plante argued, “Children deserve to know and be cared for by a mom and dad. This law will intentionally deny children one or the other. The full impact may not be seen next week or next year, but our children will be the ones who pay the price for this decision.” Ultimately, these concerns were not enough to delay the bill’s passage.


State House Speaker Gordon Fox commented on the passage, stating, “We are truly social creatures, and that is the essence of this legislation. You are free to love and commit to the person of your choice no matter what your gender may be … And the foundation of that is a very simple, yet probably the most powerful, word in the English language: Love.” 


Keywords: litigation, minority, trial lawyer, same-sex marriage, legislature, Rhode Island, Lincoln Chafee


Joseph M. Hanna, Goldberg Segalla, Buffalo, NY


 

April 17, 2013

Supreme Court Hears Arguments on Gay Marriage

 

In late March, the U.S. Supreme Court heard two days of oral arguments on two cases involving the legalization and recognition by the federal government of gay marriage. 


Petitioners in the first case, Hollingsworth v. Perry, seek to overturn California’s Proposition 8, a voter-approved ban on marriage other than between a man and a woman.  The issued in Hollingsworth is whether the Equal Protection clause of the 14th Amendment prohibits Californians from enacting laws prohibiting gay marriage.


The second case, United States v. Windsor, challenges the constitutionality of the Defense of Marriage Act (DOMA), a 1996 federal law that defines marriage exclusively as a union between a man and a woman. DOMA also prohibits married same-sex couples from receiving federal benefits related to marriage, such as tax deductions and credits, and survivor benefits in estate planning. During the hearing in Windsor, Justice Ginsburg opined that because DOMA denied as many as 1,100 federal marriage benefits, the law created two types of marriage: “Full marriage and skim-milk marriage.” 


Currently, 41 states prohibit same-sex marriage. Nine states allow same-sex marriage and another nine states permit civil partnerships. A recent CNN international poll revealed that 53 percent of Americans now support same-sex marriage and 56 percent believe that the federal government should legally recognize same-sex marriages.  


The debate over gay marriage has prompted fierce arguments from both sides. Todd Bluntworth, a proponent of gay marriage who appeared at a support rally supporting the cause, is reported by the media to have said that “[w]e are not asking for anything more than our neighbors, friends, and family, but certainly expect no less.”  In contrast, conservative Nashville talk show host Carl Boyd Jr. is reported to have expressed support for opposition to gay marriage. He is further reported to have said: “If you want to get married, go to one of the states that allows gay marriage . . . .  Stop trying to force your agenda down our throats. Quit trying to bully the American people with the homosexual agenda.” 


A ruling by the Supreme Court in favor of gay marriage could provide momentum to what some view is a cultural shift in support of the recognition of marriage between members of the same sex. It could also reduce discriminatory attitudes toward same-sex couples. Ara Gershengorn, a partner with the Boston-based law firm of Foley Hoag stated “[t]he court has a really important role here and its job is to protect minorities  . . .  It may be that the political process will get there  . . .  But the job of the court is to determine if this is violating the constitutional rights of these individuals today.”


Recordings of the oral arguments in the case are available here and here.


Keywords: litigation, minority, trial lawyer, same-sex marriage, Supreme Court, constitutionality, DOMA, federal benefits,  Hollingsworth v. Perry, United States v. Windsor


Joseph M. Hanna, Goldberg Segalla, Buffalo, NY


 

April 15, 2013

Study Reveals Unintended Effects of Diversity Programs

 

A new study on the effect of diversity training programs in corporate work environments revealed some surprising results. For one thing, it found that these programs tend to convince people that work environments are fair even when evidence of hiring, promotion, or pay disparities demonstrates otherwise. Additionally, it found that study participants (all of whom were white), had a tendency to downplay the seriousness of discrimination complaints against companies that had diversity programs in place.


Cheryl Kaiser, lead author of the study and associate professor of psychology at the University of Washington, expressed concerns that corporate diversity programs create an illusion of tolerance and understanding. Kasier noted, “Our fear is that companies may prematurely stop thinking about diversity among their workers because they’ve credentialed themselves with these programs …. Our findings suggest that diversity programs can be window dressing—even those that do very little to increase diversity may still be perceived as effective.” 


The study was also very concerned with the effect that the existence of a diversity initiative could have on a plaintiff suing a company for discriminatory conduct.  Research examining 1,000 federal civil rights cases revealed that judges in these suits “increasingly showed deference to organizations’ diversity management structures” as a means of establishing “an organization’s compliance with civil rights law.”  The problem, Kaiser opined, is that most of these programs are not tested for efficacy. As a result, she noted that “[s]ome judges assume that diversity programs effectively address employees’ complaints, without questioning whether those programs work.”   


Further, the study demonstrated that simple wordplay by company human resources personnel could also instill a sense of fairness and equity that was otherwise nonexistent.  For example, a hypothetical company that had a “diversity statement” instead of a “mission statement” caused study participants to express beliefs that women and minorities were being treated fairly despite hiring, promotion, and salary practices demonstrating otherwise. 


Kaiser recommended that companies review their diversity programs to see if they had any real effect on the hiring, promotion, and retention of women and minority employees.  She noted, “[Companies] can learn more by mining their own data rather than assuming that because a program is there that it works . . . .  If companies examine diversity-related outcomes, they will be in a better position to recognize diversity approaches that are successful and those that are not.”


Keywords: litigation, minority, trial lawyer, diversity programs, hiring, promotion, retention, effectiveness


Joseph M. Hanna, Goldberg Segalla, Buffalo, NY


 

April 15, 2013

Supreme Court to Hear Second Case Involving Affirmative Action

 

In late March, the U.S. Supreme Court granted certiorari in a matter from the Sixth Circuit involving affirmative action in higher education: Schuette v. Coalition to Defend Affirmative Action, 701 F.3d 466 (6th Cir. 2012) cert. granted 2013 U.S. Lexis 2504, 81 U.S.L.W. 3539 (2013). Certiorari was granted while a decision from the Supreme Court is pending in Fisher v. University of Texas


While the petitioner in Fisher is challenging the use of race as a factor in admission decisions made by the University of Texas, the sole issue in Schuette was whether a Michigan plebiscite prohibiting the state’s public colleges from using race or ethnicity in admission decisions violated the equal-protection guarantees under the U.S. Constitution.  A majority of the Schuette court found that the Michigan plebiscite known as Proposal 2 violated the Equal Protection Clause by removing the ability of university officials to consider race as a factor in admissions decisions, a factor that is expressly allowed under the Supreme Court’s dual 2003 decisions in Gratz v. Bollinger, 539 U.S. 244 and Grutter v. Bollinger, 539 U.S. 306. 


In finding Proposal 2 unconstitutional, the Sixth Circuit noted that the plebiscite required proponents of affirmative action programs to amend the state constitution to permit the use of factors that are otherwise permitted under the federal constitution. The Sixth Circuit therefore concluded that Proposal 2 had a racial focus that placed special burdens on racial minorities while leaving those advocating nonracial factors in admissions with less-onerous avenues to implement those factors. In so doing, the Sixth Circuit concluded that “[t]he existence of such a comparative structural burden undermines the Equal Protection Clause’s guarantee that all citizens ought to have equal access to the tools of political change.”  Schuette, 701 F.3d at 470. 


Commenting on the case, UCLA law professor Jonathan Varrat expressed doubts that the Supreme Court would declare all state bans on affirmative action unconstitutional, stating that such a move would be “shocking.”  Still, the issue is ripe for review given the conflict between circuits.  In 2012, the Ninth Circuit upheld California’s voter-approved ban on affirmative action known as Proposition 209.  In so doing, the Ninth Circuit concluded that the measure did not violate appellants’ equal protection rights.


In responding to the cert petition in Schuette, Shanta Driver, chairman of the affirmative action advocacy group By Any Means Necessary, stated, “We now have the chance to strike down Michigan’s Proposal 2, California’s Proposition 209, and the other five anti-affirmative action laws that have excluded tens of thousands of black, Latino, and other minority students from universities across the country.”


Justice Elena Kagan has recused herself from both Fischer and Schuette, most likely because of her role as solicitor general before joining the Supreme Court.  Her recusal leaves the possibility of a 4-4 split on the Supreme Court with respect to both cases, a possibility that would result in both cases being affirmed.


For more information on the affirmative action cases before the U.S. Supreme Court, check out these articles:


http://blogs.lawyers.com/2013/03/supreme-court-affirmative-action-cases/
http://www.insidehighered.com/news/2013/03/26/supreme-court-takes-another-case-involving-affirmative-action-and-higher-education
http://dailybruin.com/2013/04/01/supreme-court-to-hear-michigan-affirmative-action-suit/


Keywords: litigation, minority, trial lawyer, affirmative action, Supreme Court, certiorari, higher education, admission decisions, race, equal protection, Fischer, Schuette


Joseph M. Hanna, Goldberg Segalla, Buffalo, NY


 

April 10, 2013

Federal Court Rules on Motion to Dismiss Discrimination Action

 

A federal district court in the Southern District of Texas has permitted the U.S. Equal Employment Opportunity Commission (EEOC) to proceed with much of its employment discrimination and retaliation action against Bass Pro Outdoor World LLC and Tracker Marine LLC, entities which the EEOC alleges are controlled by Bass Pro, Inc., a Missouri-based retailer of hunting, fishing and camping equipment. 


In a 247-page second amended complaint, the EEOC alleges that the Bass Pro World LLC and Tracker Marine LLC (collectively, defendants) have a nationwide operating procedure of denying employment to black and Hispanic applicants.  Memorandum and Order at 2.  The EEOC further alleges that the discriminatory operating procedures “emanates from defendants’ top management—specifically, from owner and founder, Johnny Morris” who in response to a question concerning racial quotas presented in a meeting of store general managers allegedly said: “this company will never have a quota system because that’s not the kind of people I want working in my stores.”  Id. The EEOC asserts that the “defendants’ hiring preferences for whites was followed by the store managers nationwide” who “were asked to hire applicants who fit “the profile.”  Order 2.  In addition to claims of employment discrimination, the EEOC also asserts claims for retaliation and the failure to preserve records that are relevant to whether unlawful employment practices have been or are being committed. Order at 2-3. 


In denying the defendants’ attempt to dismiss the discrimination claims, federal district judge Keith P. Ellison noted that “[t]he EEOC has worked diligently to list almost 200 potential claimants who . . . are black and Hispanic applicants who have been denied employment by defendants.”  Order at 5.  As to the alleged statement of John Morris, the court noted that while it “reflects racial animus” it does not constitute direct evidence of discrimination because it is not linked to any particular employment decision by the defendants.  See Order at 6-8.  In so doing, the district court noted that while the EEOC has not pled a prima facie case for the named claimants, it had nonetheless pled a plausible claim for employment discrimination sufficient to withstand a motion to dismiss. Order at 9-10. The court also denied the defendants’ attempt to dismiss the EEOC’s claims for systemic discrimination.  Order at 16-21. 


Additionally, while the court dismissed two of the five retaliation claims asserted by the EEOC, the court nonetheless denied the defendants’ attempt to dismiss the remaining three claims. Order at 10-11.  Likewise, the court denied the motion to dismiss the EEOC’s record keeping claim. Order at 21.


In an article published on GreenwichTime.com, Bass Pro Shops reportedly said that “it is confident that the EEOC’s allegations will be proven false” and that “the company . . . has a history of full compliance with employment discrimination and has policies and procedures in place to fulfill that mission.” 


A copy of the district court’s Memorandum and Order is available here.


Keywords: litigation, minority, trial lawyer, employment discrimination claims, EEOC, retaliation claims


Joseph M. Hanna, Goldberg Segalla, Buffalo, NY


 

April 1, 2013

Does the NYPD Use Stop-and-Frisk Quotas?

 

In mid-March, trial began in a crowded Manhattan federal courtroom in Floyd v. New York City, a federal class action in which plaintiffs allege that the New York Police Department imposes arrest quotas on its officers, in violation of the U.S. Constitution. These quotas allegedly result in the police routinely stopping and frisking people without probable cause in an effort to meet the quotas set by the NYPD.  Plaintiffs contend that the “performance goals,” as they are referred to in the NYPD, are unconstitutional and have over the past seven years resulted in African Americans and Hispanics being subjected to harassment and intimidation by the NYPD. Attorneys for the plaintiffs say that the lawsuit is not an attempt to end the stopping and frisking of criminal suspects. Rather, has been brought to examine the way the NYPD’s policy is applied in New York City; examine the effects of the policy on blacks and Hispanics and determine whether the policy violates the Constitution.


At the first day of trial, plaintiff David Floyd testified that he was a medical student when he was stopped by policy twice, including once in the afternoon while in front of his apartment.  Similarly, plaintiff Nicolas Peart testified that he was stopped by police multiple times, including once while walking to a store to buy milk. Peart also testified about another incident in which he was stopped, frisked and his apartment keys taken by the police who entered his apartment building, causing Peart to worry about the safety of his siblings who lived with him.


Attorneys for the City of New York assert that police have not violated the Constitution. Rather, they contend that the police need the right to stop and frisk criminal suspects in high-crime neighborhoods which incidentally tend to be in minority neighborhoods. The assertions of the City of New York, however, were at odds with the trial testimony of several NYPD officers.


Officer Adhyl Polanco, an eight-year veteran of the NYPD, testified that at daily roll call he was instructed to make at least five stop-and-frisks each day, in addition to at least one arrest. Polanco further testified that he was instructed to write at least 20 traffic tickets each month.


Similarly, Bronx police officer Pedro Serrano was urged at daily roll calls by those who supervised him to produce more “250s,” which are the forms officers complete after they stop and frisk individuals.


Tape recordings of roll calls held within the NYPD also revealed the tactics used by supervising officers to increase performance quotas by rank and file street cops.  Recorded comments included: “If you don't want to be on a foot post, get a collar (an arrest).”


When asked why he decided to come forward with evidence supporting plaintiffs’ claims, officer Serrano became emotional and said: “As a Hispanic walking in the Bronx, I've been stopped many times, and it's not a good feeling.  As an officer, I said I would respect everyone to the best of my abilities.  I just want to do the right thing.”


Keywords: litigation, minority trial lawyer, NYPD, arrest quotas, Constitution, harassment


Dorcas Adekunle, Earle Mack School of Law Student, Drexel University, Philadelphia, PA


 

March 22, 2013

Survey Offers Peek into Academia's Stance on Affirmative Action

 

A recent survey conducted by Inside Higher Ed revealed that the universal enthusiasm for affirmative action traditionally associated with institutions of higher learning may not paint an entirely accurate picture of support for the practice.


The survey anonymously polled 841 college presidents (a little over one-fourth of those asked to participate) from a variety of higher education institutions. Only the institution type of the respondents was recorded for the sake of comparison. Of those surveyed, only 70 percent of them agreed or strongly agreed that consideration of race in college admissions had a “mostly positive effect on higher education generally.” More telling was the fact that only 58 percent believed that the use of race in admissions had a “mostly positive effect on education” at the schools to which they belonged. 


The debate over the future of affirmative action has heated up over the past year as the nation anxiously awaits the outcome of the Fisher v. Texas Supreme Court decision. In that case, a white, female applicant is challenging the University of Texas’s use of race as a consideration in the school’s admissions policy. Speculation over the results of the case has worried affirmative action proponents who fear that the conservative majority on the Supreme Court will either restrict or overturn a 2003 decision which upheld the right of colleges to utilize race and ethnicity as a factor in admissions.


This concern seems to be shared by the presidents surveyed as well. Of the respondents polled, 51 percent believed that the Supreme Court will impose major limits on the use of race as a factor in admissions when the Fisher ruling comes down, 23 percent believed that modest limits on the use of race will be imposed, and only 20 percent believed that the current policy will be upheld. 


While there may not by unanimous support from the academic community, leaders from educational institutions from across the country have nevertheless filed numerous legal briefs in support of the theory that the abolishment of affirmative action would negatively affect the quality of education their students receive. The board of the American Council on Education noted, “[T]he diversity we seek and the future of the nation do require that colleges and universities continue to be able to reach out and make a conscious effort to build healthy and diverse learning environments that are appropriate for their missions.”


Not surprisingly, the presidents were almost unanimously most concerned about potential cuts to federal student aid and university budget shortfalls. When polled about possible solutions, 76.8 percent of these presidents agreed that “substantial tuition increases” were the best ways for colleges and universities to deal with these monetary issues.


Keywords: litigation, minority trial lawyer, Fisher v. Texas, affirmative action, Supreme Court, college admissions, higher education, survey


Joseph M. Hanna, Goldberg Segalla, Buffalo, NY


 

March 18, 2013

Court Certifies Class-Action Discrimination Suit Against Secret Service

 

On February 26, U.S. District Judge Richard Roberts for the District of Columbia approved a class-certification request from 120 current and former Secret Service agents who are suing the Secret Service for allegedly denying them promotions on the basis of race.


The initial lawsuits were filed over 13 years ago by several plaintiffs in 2000 but failed to achieve class certification on three separate occasions. The district court finally agreed to certify the current class after counsel for the plaintiffs narrowed their claims to those involving certain African American agents who had been denied promotion bids over a period of time from the late 1990s to the early 2000s. Despite the delays, it appears that a policy change has been a long time coming. E. Desmond Hogan, cocounsel for the class, commented, “This case implicates a significant glass-ceiling problem the Secret Service has . . . .  A good-old-boy culture has unfortunately permeated the leadership of the Secret Service. It’s time for the Secret Service to deal with the history of discrimination.”


The Department of Justice (DOJ) actively denies the discrimination claims, pointing to evidence which indicated that African American agents received similar promotion scores to nonblack agents. In fact, the DOJ noted that blacks often received promotions earlier in their careers than the counterparts of different ethnicities. DOJ lawyers stated, “This evidence conclusively refutes plaintiffs’ overarching claim that the Secret Service has refused to eliminate racism from the fabric of its promotion process.” 


However, the case against the Secret Service is so convincing to some that Bennie Thompson, ranking member of the House Committee on Homeland Security, strongly suggested that the agency settle the case. He noted, “During the course of this case, the court has sanctioned the Secret Service for willful noncompliance with discovery obligations and court orders. It is my understanding that at this point in the process, the Secret Service is precluded from offering any legitimate nondiscriminatory reason to rebut any prima facie case of the disparate treatment discriminatory nonpromotion of the named plaintiffs in this case . . .  It would see that such a ruling would provide any reasonable defendant with an incentive to conclude this case. The Secret Service’s failure to do so raises serious concerns about the agency’s commitment to resolve its long-standing diversity issues.”


Federal law places a cap on the maximum damages recoverable for each plaintiff at $300,000 a piece. Still, counsel for the plaintiffs maintained that the suit was less about the money, and more about equality. Hogan noted, “Our clients are most interested in getting in place a fair and equitable promotion system.”


For more information, click here.


Keywords: litigation, minority trial lawyer, Secret Service, race discrimination suit, promotion process, Department of Justice, African American agents


Joseph M. Hanna, Goldberg Segalla, Buffalo, NY


 

March 11, 2013

President Obama Continues Push to Diversify Federal Bench

 

Bolstered by strong support from minority groups, President Barack Obama is intensifying his efforts to increase the diversity of the federal bench. Of the nearly three dozen judicial candidates named by the president since January, 17 nominees are women, 15 are ethnic minorities, and 5 are openly gay. This group of nominees included the first openly gay black man and first Asian American lesbian ever recommended for a district court judgeship. Only five of the nominees were classified as white, straight men.


White House Counsel Kathryn Reummler noted, “Diversity in and of itself is a thing that is strengthening the judicial system . . . .  It enhances the bench and the performance of the bench and the quality of the discussion . . . to have different perspectives, different life experiences, different professional experiences, coming from a different station in life, if you will.” Currently, of the 874 federal judge positions, 39 percent are held by females and 37 percent by nonwhites.  Nancy Zirkin, a member of the Leadership Conference on Civil and Human Rights advocacy group, believed that the move will help shape President Obama’s legacy.  She noted, “Obama, by putting on a diverse number of judges, [ ] will shape the courts for years to come.”


President Obama has faced considerable delays from Congress in the judicial nominee- confirmation process. In the first term of his presidency, the district court nominees of the president took, on average, 222 days from nomination to confirmation Comparatively, presidents George W. Bush and Bill Clinton faced delays of only 154 and 93 days, respectively.  With regards to circuit court nominees, the president fell somewhere in the middle (245 days for those nominees versus 277 days for Bush and 127 days for Clinton). Reummler blamed Republican obstructionist efforts for the delays, stating that there has been “very, very little substantive opposition to any of the president’s judicial nominees.”


However, recent rule changes in filibuster rules may help speed up the review process. This January, the Senate enacted rules limiting the debate over district court nominees from 30 hours to two hours. The old rules are apparently still intact for circuit court and Supreme Court nominees.


Not everyone is pleased at the rate the president is pursuing the bench’s diversification. Curt Levey, an advocate from the Committee for Justice interest group, expressed fears that the rush to nominate judicial candidates solely for diverse qualities could compromise the quality of the judiciary as a whole. Levey stated, “If they’re talking about achieving [diversity] through aggressive identification of minority candidates, then that’s their prerogative . . . .  If they’re talking about doing it through preferences, having a lower  threshold of qualifications for minorities, then I don’t approve. And it’s hard to know which they’re doing. Unlike a college admissions system, where it’s easy to quantify, this is difficult.”


Liberal action groups believe that strong presidential action is required to push the candidates through the review process. Nan Aron, president of the liberal interest group the Alliance for Justice, stated, “Republicans will throw up every roadblock they can . . . .  We’re counting on the White House and Senate leadership to be more assertive in getting nominees confirmed.”


Keywords: litigation, minority trial lawyer, bench diversification, judicial nominees, confirmation process, President Obama


Joseph M. Hanna, Goldberg Segalla, Buffalo, NY


 

March 6, 2013

Higher Ed Gets Failing Grade in Socioeconomic Diversity, Article Says

 

With affirmative action on the potential chopping block in the ongoing Fisher v. Texas case, the nation remains fixated on a Supreme Court decision which could permanently alter the way race is used (if at all) as a factor in college admissions.  However, with all this attention focused on race, Century Foundation fellow Richard D. Kahlenberg believes that educational institutions are wrongfully giving socio-economic diversity short shrift. His recent article argues that the recent concentration of low-income/working-class students in two-year colleges and wealthy students in the most- selective four-year school impermissibly “shower[s] the greatest opportunities on the already advantaged.”


Kahlenberg has been promoting the need to increase socio-economic diversity on college campuses for over 15 years. In his piece, Kahlenberg points to a 2005 report by the former president of Princeton University, William Bowen, which indicated that being an “underrepresented minority” increased one’s admission chances at selective schools by almost 28 percentage points. By contrast, low-income candidates received no boost at all.  Another 2004 study by the Century Foundation indicated that students from the most- advantaged socioeconomic quartile outnumbered students from the least-advantaged quartile at selective schools by 25 to 1! 


Also troubling were the findings of Thomas Espenshade and Alexandria Radford, whose 2009 book, No Longer Separate, But Not Equal, revealed that at highly selective schools, lower-class white students were 33 percent as likely to be admitted as upper-middle-class white students of similar qualifications. The results from law schools were even worse: Richard Sander, a law professor at the University of California at Los Angeles, noted that only 2 percent of law students came from the bottom socioeconomic quartile, while over 75 percent came from the richest quartile. 


Standardized testing also reflects certain educational disparities between various socioeconomic classes. A study by Anthony Carnevale and Jeff Strohl of Georgetown University found that, on the math and verbal sections of the SAT, socio-economic disadvantage imposed a 399-point penalty on low-income students compared to their most-advantaged counterparts. 


Even if race-based affirmative action is prohibited, Kahlenberg proposes that diversity can be attained (and even improved) through consideration of socioeconomic factors rather than race alone: “[C]ampus officials will turn to economic disadvantage, and the percentage plans that disproportionately benefit poor and working-class students, as a way to indirectly produce racial diversity.” He noted that when a lower court in the Fisher case temporarily banned the University of Texas from considering race in admissions, the school was actually able to admit more black and Latino students through an economic affirmative action/academic merit combined plan than it had before the ban was implemented.


Whether Kahlenberg is right or wrong, his article raises serious questions about the most effective way that proponents of diversity can increase the representation of underrepresented groups—racial and socioeconomic—at educational institutions. 


Keywords: litigation, minority trial lawyer, Fisher v. Texas, socioeconomic factors, diversity, race, college admissions, affirmative action


Joseph M. Hanna, Goldberg Segalla, Buffalo, NY


 

February 28, 2013

Discord over Mental Competency of Criminal Defendants

 

Psychiatrist Joel Dreyer lived a life free of crime until 2004 when at age 66 he began prescribing over 20,000 oxycodone pills and 78,923 hydrocodone pills to patients over the next three years.  One of Dreyer’s patients died from an overdose of his prescriptions. Another was a minor who lacked parental consent for treatment. Dreyer nonetheless altered the patient’s age on prescriptions for Norco and Xanax. Dreyer also prescribed lethal quantities of addictive drugs to patients without conducting physical examinations or taking medical histories and received $100-$200 for each prescription.


In 2007, Dreyer was indicted by the United States on charges that he conspired to possess and distribute controlled narcotics. Two years later, Dryer pled guilty to two counts of a 30-count indictment and the 73-year-old Dreyer, who suffers from a degenerative brain disease affecting his judgment, was sentenced to 10 years in prison by a federal judge in Riverside, California. In August 2012, a divided panel of the Ninth Circuit reversed and remanded, finding that the evidence before the district court required it to order, sua sponte, an evidentiary hearing on Dreyer’s competency and that the failure to do so was “plain error.” The panel did so notwithstanding that counsel for Dreyer had not requested the district court to conduct such a hearing.


No petition for rehearing or rehearing en banc was filed by the government. A judge of the Ninth Circuit nonetheless sought rehearing en banc and when the request failed to garner sufficient votes, eight circuit judges issued a blistering dissent, contending that the standard mandated in the opinion authored by Circuit Judge Stephen Reinhardt will “wreak havoc” on sentencing procedures within the circuit.  United States v Dreyer, No 10-50631, D.C. No. 5:089-cr-00041-VAP-1 (9th Cir. 2013).  The dissent contends that Dreyer “significantly expands” existing Ninth Circuit precedent which had previously found plain error “only when the quality and magnitude of mental health evidence far exceeded what has been presented in this case.”  Dreyer, supra, at 7.  In the Ninth Circuit, “plain error” is ‘“error that is so clear cut, so obvious” that no ‘competent district judge’ would make such a mistake, even ‘without the benefit of objection.’”  Id. at 11.


The mandate of the Ninth Circuit resulted, in part, from three expert reports submitted to the district court prior to Dreyer’s sentencing.  The reports were authored by four experts, one of whom was recommended by the government and all of whom diagnosed Dreyer with frontotemporal dementia, a progressive, degenerative and irreversible disease that affects the region of the brain regulating comportment, insight and reasoning.  Id. at 14.  The reports differed only as to whether Dreyer was competent at the time he entered his guilty plea. Two experts opined that the dementia caused Dreyer to commit actions that he may not have clearly understood, such as the guilty plea. Another expert opined that throughout the time of Dreyer’s criminal conduct, the dementia prevented him from accurately critiquing or monitoring his behavior and foreseeing the consequences. The fourth expert, who was selected by the government, opined that Dreyer was competent at the time he entered his plea but acknowledged that Dreyer had engaged in his criminal behavior while suffering from dementia that impaired his judgment. This fact, the expert acknowledged, “may mitigate or reduce [Dreyer’s] culpability  . . . as his moral compass was effectively compromised by brain damage over which [Dreyer] had impaired control.”  Id. at 16.  At sentencing, counsel for Dreyer refused to let his client speak because Dreyer had difficulty perceiving the truth and he was only “partially with us.’”  Id. at 17-18.


As set forth in the majority opinion, “competence” is “the ability to understand the proceedings and assist counsel in preparing a defense” and extends not only to trial but also to sentencing where a defendant’s ability to speak “is an essential element of a criminal defense.”  Id at 22.  Competence at sentencing requires, inter alia, that a “defendant be able to assist in his own defense by participating in his “elementary right” of allocution.’” Id. at 19-21 (citing, inter alia, 18 U.S.C. section 4241(a)). Based on this record, the Ninth Circuit concluded that there was substantial evidence supporting Dreyer’s lack of capacity and therefore vacated his sentence and remanded the case for a competency hearing. On this same record, eight circuit court judges concluded that the district court had not committed plain error.


Keywords: litigation, minority trial lawyer, competency hearing, guilty plea, expert testimony, plain error, dissent


Edward Romero, Greenan, Peffer, Sallander & Lally LLP, San Ramon, CA


 

February 01, 2013

Sixth Circuit Upholds Firing of University HR Employee

 

Recently, the Sixth Circuit Court of Appeals affirmed a lower court ruling upholding the firing of Crystal Dixon, a former human resources employee at the University of Toledo. The underlying legal dispute began after Dixon was fired for writing a personal letter to the editor of a local newspaper in which she contested the characterization of sexual orientation as being the same as race. Following her firing Dixon sued the school, insisting that the First and Fourteenth Amendments precluded the school from firing her for voicing her opinion.


In pertinent part, Dixon’s at-issue letter stated: “I take great umbrage at the notion that those choosing the homosexual lifestyle are ‘civil rights victims.’ Here’s why. I cannot wake up tomorrow and not be a black woman . . .  I am genetically and biologically a black woman and very pleased to be so as my creator intended. Daily, thousands of homosexuals make a life decision to leave the gay lifestyle evidenced by the growing population of PFOX (Parents and Friends of Ex Gays) and Exodus International just to name a few.”


After these statements were published, university president Lloyd Jacobs responded in a guest column of the Toledo Free Press, commenting that Dixon’s statements “do not accord with the values of the University of Toledo.” Later, Jacobs stated “[w]e will be taking certain internal actions to more fully align our utterances and actions with [the university’s established] value system.” 


The school maintains the position—and the appellate court agreed —that as an HR administrator, Dixon could be disciplined for speaking out against the same diversity and acceptance policies that she was obligated to promote. Notably, the court stated that because Dixon was “a [government employee] policy maker engaged in speech on a policy issue related to her position,” the government’s interest in restricting her speech outweighed Dixon’s speech protection as a matter of law.


A copy of the court’s opinion can be found here.


Dixon has since requested a rehearing on the grounds that the appeals court wrongfully assumed that the school had editorial control over her public statements simply because she was employed by the university. Further, counsel for Dixon insisted that the court gave little consideration to the constitutional protection her speech was entitled to. In part, their petition stated, “[t]here is no dispute that the plaintiff was speaking on a matter of public concern and was thus terminated as a result of her speech.” Robert Muise, cofounder of the American Freedom Law Center (the organization in charge of Dixon’s defense) commented, “[t]his case only reinforces the fact that the liberal idea of ‘diversity’ is code for the tyranny of political correctness.”


Keywords: litigation, minority trial lawyer, freedom of speech, public statement, university policies, diversity, firing, constitutional protection, sexual orientation


Joseph M. Hanna, Goldberg Segalla, Buffalo, NY


 

January 30, 2013

New NALP Data Released on Diversity in the Legal Profession

 

The results of the latest annual NALP study are in, and the data collected reflects only modest changes in the representation of female and minority attorneys at law firms across the country.  Still, news on the diversity front was not all bad; the study also indicated that law firms continue to show slight improvements in overall diversity figures, and have nearly made up for the legal profession’s loss of diversity brought on by the recent recession.


 As a whole, minorities made up 12.91 percent of lawyers at the firms studied, a slight increase over the 2011 figure of 12.70 percent. Gains in the overall percentage of female attorneys were small as well; through 2012, 32.67 percent of all lawyers were female, compared to 32.61 percent in 2011. However, the number of female associates continued to decline slightly to 45.55 percent, down from 45.66 percent in 2009. While the percentage women and minority partners remains small, it continues to increase—albeit at an almost glacial pace.  In 2012, 19.91 percent of all partners at the firms surveyed were women, and 6.71 percent were minorities. In 2011, these percentages were 19.54 percent and 6.56 percent, respectively. Despite these seemingly modest gains, the current representation of women and minority partners shows a marked improvement when compared to the results of NALP’s 1993 study (the first year it was conducted), which reported these partnership diversity percentages at only 12.27 percent and 2.55 percent, respectively. 


Female minorities continue to be the most underrepresented at the partnership level, composing only 2.16 percent of all partners in 2012 (up from 2.04 percent in 2011). Male minorities compose a slightly higher percentage of all partners (4.55 percent); however, this group experienced almost no growth in the partnership ranks over last year (4.52 percent in 2011).


Commenting on these numbers, NALP director James Leipold noted “[t]he 2012 data suggest[s] that the temporary setback for minority representation brought on by recession-era layoffs has been effectively reversed but that the decline in the representation of women among associates has not been stemmed. The continued loss of women from the associate ranks, at a time when far too few women make up the partners of U.S. law firms, is a problem that firms must begin to address head-on.”


Interestingly, women and minority attorney representation varied greatly across different geographic regions. For example, while minority partners are vastly underrepresented in Pittsburgh, Pennsylvania (just over 2 percent of all partners) and Grand Rapids, Michigan (just under 2 percent), some areas, such as Miami, Florida, boast minority partnership percentages as high as 27.30 percent. Further, while some of the data collected supports the idea that minority representation within law firms will mirror the population of a given region (i.e. areas with a higher number of minorities will have more minority partners), other data revealed that this is not always the case. More diversity-related statistics (including a substantive breakdown of women and minorities in law firms by major U.S. city) can be found here.


Keywords: litigation, minority trial lawyer, representation, law firms, NALP, diversity percentages, recession, partnership, legal profession


Joseph M. Hanna, Goldberg Segalla, Buffalo, NY


 

January 30, 2013

First Article III Filipino American Judge Appointed to Federal Bench

 

On December 13, the United States Senate confirmed the appointment of Lorna Schofield as a federal district court judge for the Southern District of New York by a vote of 91-0.  Judge Schofield received nominations for the position by both President Barack Obama and New York Senator Chuck Schumer. As a result of Schofield’s appointment, New York now employs two District Court judges of Asian descent (the other is Judge Kiyo Matsumoto of the Eastern District of New York).


Judge Schofield grew up in the US Midwest, attending Indiana University and later, New York University Law School. After graduating, Schofield worked in the litigation department at Debevoise & Plimpton LLP, becoming the firm’s first minority partner in 1991. Some of Schofield’s other accomplishments include serving as the U.S. Attorney in the criminal division of the Southern District of New York and becoming the first Asian-American Pacific Islander to chair the Litigation Section of the American Bar Association. 


Prior to Schofield’s appointment, the only other Filipino-American Federal judge had been Alfred Laureta, an Article I Federal Judge for the District of the Northern Mariana Islands from 1978 to 1988. Unlike Article III judges, who are granted lifetime tenure, Article I judges serve a 10-year bench term.


Several Filipino-American groups, such as the Congressional Asian Pacific American Caucus (KAPAC) and the National Federation of Filipino American Associations (NaFFAA), expressed considerable satisfaction with Schofield’s appointment. NaFFAA national chair Ed Navarra stated, “Ms. Schofield’s confirmation by the Senate is a historic moment not only for our community but for the entire nation. . . . Given that Asian Americans are significantly underrepresented in the federal judiciary, Ms Schofield’s addition [to the bench] will greatly enhance the judiciary’s diversity.” 


Arnedo Valera, the executive director of the Migrant Heritage Commission (a Washington-based rights group), agreed with Navarra, noting that “[o]ur judiciary and the legal system as a whole is best served when the judges belonging to different ethnicities are recognized and appointed to the bench.”


KAPAC chair and congresswoman Judy Chu summed up the feelings of many, commenting “[i]t heartens me to know that the judiciary, the branch of government dedicated to the interpretation of the most important cornerstone—the Constitution—is becoming more reflective of the dynamism and diversity of our nation.”


Keywords: litigation, minority trial lawyer, filipino, U.S. senate, federal judiciary, Article III, diversity, confirmation


Joseph M. Hanna, Goldberg Segalla, Buffalo, New York


 

January 23, 2013

The Fight Continues over Nassau County Redistricting

 

The contentious redistricting fight continues. Last year, lawmakers in Albany released a state senate map dividing up several communities in Nassau and Suffolk counties to reflect population changes realized in the 2010 census. Since then, angry lawmakers and irate community groups have argued against the proposed changes, insisting that they were designed to intentionally dilute the voting power of African-American, Latino, and immigrant voters in these regions. 


Redistricting has become a particularly sensitive issue in this area of New York given the changing demographics of the Nassau County region. Data from the 2010 census revealed that non-white residents now comprise nearly 30 percent of Nassau County’s population.  Some areas of Nassau County, such as the Elmont community, boast minority populations as high as 77 percent—districts referred to as “minority-majority.” 


Now, Nassau County’s redistricting commission—a group composed of representatives from both sides of the political aisle—is trying to reach a palatable compromise amidst the hyper-partisan atmosphere and contentious debate. Opponents of the initial 2011 redistricting proposal noted that that the map contained “absurdly shaped districts, rife with jagged outcroppings and clefts.” These critics opined that the shapes were designed to weaken the political power of various minority groups by breaking up those communities with arbitrary divisions. Though representatives on both sides have since submitted new proposals, it appears that each party is still attempting to manipulate the redistricting maps in ways that will help them achieve a majority in upcoming elections. 


Recently, Nassau County Republicans were accused of releasing a new redistricting proposal and calling for a public hearing on the matter without informing Nassau County Democrats or giving local newspapers time to announce the meeting. Local Democrats, who are the minority in Nassau County, were not pleased. Steve Markowitz, a Democratic member on the redistricting commission stated, “[d]espite valiant efforts by the Democratic commissioners to work with our Republican counterparts in a bipartisan way to come up with a plan that would best reflect the wishes of residents, we were rebutted and virtually shut out of the process.” Markowitz later referred to the situation as “abominable.”


Keywords: litigation, minority trial lawyer, redistricting, voting power, minority populations, Nassau County, hyper-partisan, senate map, census changes


Joseph M. Hanna, Goldberg Segalla, Buffalo, New York


 

January 08, 2013

Department of Justice Reaches Agreement on Juvenile-Justice Complaint in Tennessee

 

The Department of Justice announced in mid-December that it has entered into a settlement agreement with Shelby County, Tennessee, and the Juvenile Court of Memphis and Shelby County regarding the administration of juvenile justice and conditions of juvenile confinement in Shelby County, Tennessee.


The agreement addresses the findings made by the Department of Justice during its investigation of Shelby County and the court. The investigation was undertaken pursuant to the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. section 14141, which prohibits a pattern or practice of deprivation of civil rights in the administration of juvenile justice. The investigation was also undertaken as part of compliance by Shelby County and the court with Title VI of the Civil Rights Act of 1964, 42 U.S.C. section 2000d to2000d-7.


As set forth in the agreement, the investigation began in the summer of 2009 which culminated in a report of findings issued in April 2012.  In it, the United States concluded that there was reasonable cause to believe that the court failed to protect the constitutional rights of children appearing before it in delinquency matters. Among other things, the United States asserted that the court failed to provide constitutionally required due process, administer justice in a non-discriminatory manner, and provide reasonably safe conditions of confinement.


The agreement notes that before the report of findings was issued, the court “began taking steps to address the United States’ onsite recommendations … ”  This included working with the local school system and law enforcement agencies to implement a juvenile summons in lieu of arrest program for limited offenses and reducing the detention population of juvenile. The willingness of the court to implement change without the need for litigation allowed the parties to enter into the agreement which, among other things, is intended to protect the due process rights of children involved in juvenile-delinquency proceedings. A copy of the agreement is available here.


The agreement reached with Shelby County and the Court is in contrast to the civil action filed by the Department of Justice against the City of Meridian Mississippi, Lauderdale County, Mississippi, the judges of the Lauderdale County Youth Court, and the State of Mississippi.


Filed in October 2012 in the United States District Court for the Southern District of Mississippi, the action seeks to remedy alleged violations by defendants of the Fourth, Fifth and 14th Amendments of the United States Constitution. The complaint alleges that defendants help operate a school-to-prison pipeline in which the rights of children in Meridian, Mississippi, are repeatedly and routinely violated. The lawsuit was filed after the Department of Justice issued a report and findings in August 2012 after an investigation that began in December 2011.


Keywords: litigation, minority trial lawyer, Department of Justice, school-to-prison pipeline, juvenile justice, settlement agreement, children's constitutional rights, Tennessee


Edward Romero, Greenan, Peffer, Sallander & Lally LLP


 

January 07, 2013

Firing of FedEx Driver for Foreign Accent Highlights Ongoing Issues


In a country that prides itself on embracing the diversity of all people regardless of their national origin, there appears to be growing hostility in the workplace against non-English speakers and those with foreign accents. The unfortunate reality is that many non-English-speaking workers and workers with accents are being wrongfully discharged at an alarming rate. Complaints based on wrongful discharge in violation of national origin involving language ability have doubled since 1997. Despite the increasing number of claims in response to employer rules requiring employees to speak English, the majority of courts have held that English-only rules are not inherently discriminatory, so long as the rule is supported by business necessity.


Although some claimants have won settlements against their former employers in regards to harassment claims based on their language ability in the workplace, many, if not most, have little recourse. Going forward, the future for these types of claims is unclear, whether from an employer’s perspective or from a non-English-speaking worker’s perspective.


Recently, a Utah truck driver named Ismail Aliyev filed a federal discrimination lawsuit against FedEx, claiming he was fired because of his Russian accent.


According to Aliyev, who worked for a company that owned and operated FedEx-branded trucks, his trouble began when an Iowa weigh station gave the company a warning, not a formal citation, about his Russian accent. Since one of the requirements in holding a commercial driver's license is the ability to communicate, his accent could potentially create a problem. However, as Aliyev said to The Associated Press in a phone interview, “I think for a driver, my English is not too bad.” It is clear that Aliyev has an accent; but, according to his lawyer, his accent is “very understandable.” Further, Aliyev has held a commercial license since 2009 and has been driving without any problems before FedEx ordered his firing in September, allegedly because of his Russian accent.


According to the Equal Employment Opportunity Commission (EEOC), it is legal for employers to create English-only policies in the workplace, so long as such policies are out of business necessity. However, these English-only policies seem to violate the essence of American diversity.  After all, America is supposed to be a welcoming place where people can fulfill their dreams regardless of their national origins and foreign accents.


Keywords: litigation, minority trial lawyer, wrongful discharge, non-English-speaking workers, English-only policies, EEOC, FedEx, workplace discrimination, language ability, foreign accents


Joseph M. Hanna, Goldberg Segalla, Buffalo, New York


 

January 07, 2013

NY Court of Appeals Vacancy Produces Most Diverse Pool of Applicants Yet


On December 1, 2012, the New York State Commission on Judicial Nomination presented Governor Andrew Cuomo with a list of seven judges and attorneys from which he must select the next Court of Appeals judge to replace retiring Judge Carmen Ciparick, the first Hispanic judge on the high court.


Among the 75 people who applied to fill Ciparick’s seat, 35 of the applicants were female and 24 were minority.

The list of nominees include Justices Sheila Abdus-Salaam and Rolando Acosta of the Appellate Division, First Department; Justice Eugene Fahey of the Fourth Department; Kathy Chin of Cadwalader, Wickersham & Taft; David Schulz of Levine Sullivan Koch & Schulz; Professor Jenny Rivera of CUNY School of Law; and Executive director Margarita Rosa of Grand Street Settlement.


The list of nominees delivered to Cuomo “is undeniably the most diverse list ever,” as reported by John Caher and Joel Stashenko of the New York Law Journal. To emphasize the diversity of the list, Caher and Stashenko further add, “If Cuomo wants to replace Ciparick with a Hispanic, he has three choices. If he wants to replace her with a Hispanic woman, he has that option. He could appoint the first openly gay member of the court (David Schulz) or the first Asian-American (Kathy Chin).” Not only does this list represent the most diverse group of high court nominees ever, but one of incredibly qualified and accomplished people. The quality of the list is phenomenal.


Carey Dunne, president of the New York City Bar, agrees that the commission produced a list that is both “good and diverse.” While the New York State Commission sought applicants from diverse racial, religious, ethnic and geographic backgrounds, diversity was not the number-one factor in selecting the nominees. According to Chief Judge Judith Kaye, the current chair of the commission, “We have quality first on our list.


Keywords: litigation, minority trial lawyer, New York State Commission, Court of Appeals vacancy, judges, nominees, diversity


Joseph M. Hanna, Goldberg Segalla, Buffalo, New York


 

January 07, 2013

Charter School Seeks to Prepare Minority Students for Legal Careers


Legal Prep Charter Academy (LPCA), Illinois's first legal-themed high school, debuted in late 2012 in West Garfield Park, Illinois. The school's stated mission is to prepare its students, all of whom are African- American or Latino, for a future career in the law. Sam Finkelstein, cofounder and CEO of LPCA, stated that the school's curriculum focused "on the skills that all great lawyers possess: excellent written and oral communication, critical thinking, and problem solving." Regardless of how many LPCA students actually go on to law school and pass the bar exam, Finkelstein hopes the school can make a difference by helping to diversify the legal profession. The curriculum of LPCA is unique, offering a demanding course load, a longer school day, and strict disciplinary rules.


Keywords: litigation, minority trial lawyer, charter school, diversity, legal profession


Joseph M. Hanna, Goldberg Segalla, Buffalo, New York


 

December 6, 2012

Second Circuit Unanimously Affirms $1 Million Jury Award Against School District


A few weeks after Anthony Zeno transferred to a new high school in the middle of his freshman year, a student charged at him screaming that he would “rip [Anthony’s] face off and … kick his ass” and that “[w]e don’t want your kind here.” While another student held back the aggressor, other students called Anthony a “nigger” and told him to go back to where he came from. For the remainder of his freshman year, Anthony was subjected to numerous racial comments and harassment at the racially homogenous high school in Pine Plains, New York, where a student ripped a necklace from Anthony’s neck and joked “Whoops, didn’t mean to break your piece of fake rapper ‘bling-bling.’” While the students involved in these incidents were disciplined with a warning or suspension, the school district did nothing else, notwithstanding Anthony’s reporting of the incident to school officials and a letter by his mother to both the district superintendent and the school board raising concerns about the students’ “verbal, racial attacks, and physical abuse” on Anthony and his younger sister.


For the next three years, Anthony, who is half white and Latino and dark-skinned, was called “nigger” almost every day by students at Stissing Mountain High School. In his sophomore year, one student, a teammate on the football team, punched Anthony in the face and threatened to “kick [Anthony’s] black ass.” Another student told Anthony that he was a “fucking nigger” and yet another student picked up a chair and started to throw it at Anthony before being restrained.On yet another occasion, Anthony walked into the school bathroom to find graffiti saying: “Zeno is dead” and “Zeno will die.”  In February 2006, the student who had ripped the necklace from Anthony’s neck and broke it and another student tampered with Anthony’s locker filling it with garbage and loosening the door so that it and the garbage fell onto Anthony’s head when he opened the locker. And on at least two occasions, students taunted Anthony during his sophomore year with references to lynching and displaying a noose or threatening to take a rope to the nearest tree. In response these and other incidents, the school district suspended the students involved and moved one student to another school. Anthony also sought and obtained orders of protection.


Halfway through his sophomore year, Anthony told faculty and staff at the school, “I’m tired of this—I can’t take any more of it, I have to stop this. This has been going on forever.” The district superintendent did not call or meet with Anthony’s mother notwithstanding a letter to her during the school year that described the “‘verbal attacks includ[ing] racial slurs and threats to their lives’ and physical attacks so violent that [the school] called the police.”


Mrs. Zeno also obtained an attorney who sought the school district to “provide Anthony with a shadow, who would accompany him at school” and “implement racial sensitivity programs to underscore the district’s zero tolerance of racism and bias.” In November 2005, members of the Dutchess County Human Rights Commission and the county’s NAACP met with members of the school district and offered to provide the shadow and sensitivity training at no cost. The district did not assign Anthony a shadow and chose not to implement the training program offered by the Human Rights Commission.


Moreover, the school district’s compliance officer who was responsible for investigating racial harassment and discrimination under Title VI of the Civil Rights Act of 1964, never investigated the harassment nor did she follow up or respond to the complaints of Anthony and his mother. Indeed, throughout Anthony’s sophomore year, the district administrators, including the compliance officer, “never discussed racial harassment generally, or Anthony, specifically.”


Anthony was subjected to even more harassment in his junior year, with a student threatening to “kick [Anthony’s] black ass” and threatening “to rape his younger sister.”  When “Anthony threw a punch,” the school district punished Anthony, but not the instigator.”


Based on these and many other incidents of harassment and violence, a federal jury found the school district liable of violating Title VI of the Civil Rights Act of 1964. While the district court reduced the jury’s award to $1 million dollars, the Second Circuit unanimously affirmed the ruling in Anthony Zeno v. Pine Plains Central High School District, Docket No. 10-3604-cv (Second Circuit December 2012).


Keywords: litigation, minority trial lawyer, racial harassment and discrimination, Title VI of the Civil Rights Act of 1964, school district,


Edward Romero, Greenan, Peffer, Sallander & Lally LLP


 

December 6, 2012

Arizona DREAM Act Coalition Files Suit Against Arizona Officials


On November 29, 2012, a class-action lawsuit was filed in the United States District Court for the District of Arizona challenging Arizona executive order 2012-06 and Arizona’s practice of denying driver’s licenses to immigrant youths who have been authorized to stay in the United States under the Deferred Action for Childhood Arrivals (DACA) program. The DACA was signed by President Obama on June 15, 2012, and it allows young immigrants, who meet certain qualifications, to remain in the United States without the threat of deportation for a renewable period of two years. During this period, qualifying youths can obtain social security numbers and can engage in lawful employment by obtaining an employment-authorization document (EAD).


The lawsuit was filed by the Arizona DREAM Act Coalition and five young immigrants who are qualified to participate in the DACA program, but have been precluded from obtaining driver’s licenses in Arizona. The complaint alleges that in an effort to undermine the DACA, on August 15, 2012, Arizona’s governor, Janice Brewer, issued Executive Order 2012-06. Pursuant to the executive order, “the Deferred Action program does not and cannot confer lawful or authorized status or presence upon the unlawful alien applicants.” The executive order also directs state agencies to take necessary actions to “prevent Deferred Action recipients from obtaining eligibility … for any … taxpayer-funded public benefits and state identification, including driver’s licenses.”


The plaintiffs are challenging Arizona’s practice on the grounds that it violates the Supremacy Clause of the US Constitution because the federal government is vested with the sole power of regulating immigration. The plaintiffs are also alleging that Arizona’s practice violates the Equal Protection Clause of the Fourteenth Amendment. The Equal Protection challenge is premised upon the plaintiffs’ assertion that prior to the issuance of executive order 2012-06, driver’s licenses were issued to all eligible noncitizens who were granted deferred action, and for purposes of establishing driver’s license eligibility, an EAD was accepted as proof of authorized presence in the United States. However, after the entry of executive order 2012-06, DACA recipients are unable to use EAD documents to establish proof of authorized presence in the United States, but an EAD can still be used by individuals who have been granted other forms of deferred action or temporary authorization to remain in the United States.  


The class represented in this lawsuit includes approximately 80,000 individuals in the state of Arizona who are eligible to participate in the DACA program.


Keywords: litigation, minority trial lawyer, DREAM Act, Arizona, Arizona DREAM Act Coalition, EAD, DACA program, driver's licenses, immigration, lawsuit, class action


Utibe I. Ikpe, Esquire, Powers Mcnalis Torres Teebagy Luongo


 

November 21, 2012

Sixth Circuit Rejects Michigan's Ban on Affirmative Action

 

On November 15, the US Court of Appeals for the Sixth Circuit struck down as unconstitutional a Michigan voter-approved, statewide ban of affirmative action. The court based its holding on equal-protection grounds, noting that while those attempting to fight otheraspects of university admissions had multiple avenues for doing so (i.e. through petitions or lobbying), proponents of affirmative action would be forced to amend the state’s constitution to affect any sort of substantive change. Commenting on this procedural inequity, Judge R. Guy Cole Jr. noted, “[t]he existence of such a comparative structural burden undermines the equal protection clause’s guarantee that all citizens ought to have equal access to the tools of political change.”


The Sixth Circuit’s decision created a split between two federal courts of appeal; recently, the Ninth Circuit upheld California’s statewide ban on affirmative action. Eugene Volokh, a law professor from the University of California, Los Angeles, believes that this split makes the issue regarding the permissibility of statewide affirmative action bans ripe for review by the U.S. Supreme Court. Notably, seven other states—Arizona, California, Florida, Oklahoma, Nebraska, New Hampshire, and Washington—have enacted legislation banning the consideration of race in university admissions.


However, the true impact of this ruling will likely depend on the outcome of another case, Fisher v. University of Texas, which is currently under review by the Supreme Court. In essence, the Fisher case is considering a direct challenge to the use of race as a factor in university admissions. There, a decision either for or against affirmative action in the admissions context would likely cast a shadow over the outcome of the Sixth Circuit’s decision.


Still, affirmative action supporters were pleased with the holding. Gary Orfield,
codirector of the Civil Rights Project at the University of California, Los Angeles, wrote that “[t]his victory … means that a major federal appeals court has recognized that elimination of minority rights through referenda campaigns changing state constitutions in ways that make it virtually impossible for minority communities to ever reverse the decisions is a critical and unjust limitation on American democracy.”


Keywords: litigation, minority trial lawyer, affirmative action, Sixth Circuit, university admissions, ban. Fisher v. University, Michigan


Joseph M. Hanna, Goldberg Segalla, Buffalo, New York


 

November 14, 2012

Gaullaudet University's Diversity Officer on Paid Leave over Petition

 

Recently, Angela McCaskill, Gaullaudet University's first deaf, African-American doctoral graduate, was placed on paid administrative leave after T. Alan Hurwitz, the university's president, was informed that McCaskill had signed a petition to put Maryland's same-sex marriage law to a statewide vote. When questioned about the incident, McCaskill admitted to doing so.


Though she initially kept the suspension quiet, McCaskill has vocally protested what she perceives to be the university's retaliation against her for exercising her rights. She stated, "[n]o one had the right to determine what my signature meant ... They have tarnished my reputation and 24 years of service. The situation has spiraled out of control. Later, she noted, "[s]igning that petition is a right I have as a citizen of the state of Maryland," and, though noting that she was not anti-gay, McCaskill asserted that her actions "simply mean that I want to see this very sensitive issue put on the ballot as a referendum ... "


Hurwitz stated his belief that, as the university's chief diversity officer, McCaskill's actions could be perceived as confusing by the student body. He went on to insist that the school initiated the leave simply to see whether or not McCaskill's actions had "interfere[d] with her ability to perform her job."


Several groups, including the Marylanders for Marriage Equality, voiced their opposition to the suspension, calling it wrongful and asking for McCaskill to be reinstated. Many were incredulous that a person charged with upholding/promoting/facilitating diversity would be faced with such a dilemma. An unnamed Gallaudet student noted that McCaskill "[has] been a great ally to the LGBT community ... I'm heartbroken about this."


Gallaudet University is the nation's leading higher-education institution for the deaf.


Keywords: litigation, minority trial lawyer, university, same-sex marriage law, petition, rights, leave, Marylanders for Marriage Equality


Joseph M. Hanna, Goldberg Segalla, Buffalo, New York


 

November 14, 2012

Second Circuit Strikes Down Defense of Marriage Act

 

On October 18, 2012, the United States Court of Appeals for the Second Circuit in New York, New York, found the Defense of Marriage Act (DOMA) of 1996—a law denying federal marriage benefits to same-sex couples—unconstitutional. Notably, it was the second appellate court to do so this year (the first being the First Circuit Court of Appeals in Boston, Massachusetts). In a 2-1 decision, the court noted that homosexuals had faced a "history of discrimination," further stating, that "[h]omosexuals are not in a position to adequately protect themselves from the discriminatory wishes of a majoritarian public."


Proponents of same-sex marriage hope that this ruling will provide a strong basis for the argument to repeal DOMA if the case is taken up on appeal before the Supreme Court. Earlier this year, the Obama administration instructed the Justice Department to stop defending judicial challenges to the law. Further, many top Democrats—including House Minority Leader Nancy Pelosi, gay-rights activist group GLAAD and the ACLU—applauded the ruling and the message of support it sent to the gay community.


Not surprisingly, many conservatives are displeased by the decision. Brian Brown, president of the National Organization for Marriage, stated "[t]his is yet another example of judicial activism and elite judges imposing their views on the American people, and further demonstrates why it is imperative for the U.S. Supreme Court to [act]." Brown noted that 32 states had backed (by popular vote) the traditional view of marriage being defined as between a man and a woman.


Ellen Windor, the 83-year-old plaintiff in the underlying case, expressed her elation at the ruling; still, she commented that she didn't believe there was a "chance in hell" that the decision would turn out the way it did. Later, Windsor expressed a desire shared by many gay-rights activists: that her sexual orientation would become a nonissue when it comes to marriage in American society.


Keywords: litigation, minority trial lawyer, same-sex marriage, gay rights, DOMA, appeals, Second Circuit, Nancy Pelosi, GLAAD, ACLU, National Organization for Marriage


Joseph M. Hanna, Goldberg Segalla, Buffalo, New York


 

November 12, 2012

Law Schools Submit Briefs in Support of Affirmative Action


The battle over the validity of affirmative action has reached the Supreme Court again for the second time in 10 years. As the Supreme Court considers the issue of race in collegiate admissions in Fisher v. University of Texas, multiple members of academia and several law school entities —including the Association of American Law Schools, the Law School Admission Council, the American Bar Association, New York University School of Law’s Brennan Center for Justice, Howard University School of law’s Civil Rights Clinic, National Black Law Students Association, the Emory Latin American Law Students Association, OUTLaw, Harvard Law School Dean Martha Minow, Yale Law School Dean Robert Post, and six other constitutional law professors—have filed amicus briefs supporting the consideration of race in admissions decisions. In essence, the briefs argue that removing race as a consideration in admissions decisions would effectively handicap efforts to increase diversity in law schools and the legal profession at large. 

 

The brief of Minow and Post (prepared by Sidley Austin’s Carter Phillips) stated “[w]ere this Court altogether to preclude considerations of race from the admissions process, each school would be disadvantaged in its efforts to select individuals who will produce the most effective classroom experience for training students to succeed in the opportunities and challenges that lawyers, whether practicing or not, must inevitably confront.” 

 

The Law School Admission Council wrote “[t]he simple demonstrable statistical fact is that most selective law schools in this country will have almost no students of certain races unless they adopt admissions policies designed to alter that outcome.”  They based this conclusion on the effect of various schools’ admissions standards (i.e. LSAT and GPA scores) on various minority groups. 

 

In their submission, the Association of American Law Schools argued that this disparity resulted from smaller class sizes in law schools. In other words, they believe that while large undergraduate institutions may have enough applicants to achieve a “semblance of racial diversity,” the smaller scale of law schools prevent them from realizing a racially diverse student body where class-rank based admissions are the sole admission criteria. 

Still, most of the amici strongly insist that race is only one consideration in a comprehensive review of each applicant, asserting that diversity is in no way determinative for individual acceptance/employment decisions. 


Keywords: litigation, minority trial lawyer, affirmative action, diversity efforts, Fisher v. University of Texas, admissions decisions


Joseph M. Hanna, Goldberg Segalla, Buffalo, New York



 

November 9, 2012

Maryland and Maine Approve Same-Sex Marriage


On November 6, 2012, voters in both Maryland and Maine approved legislation permitting gay marriage. The ballots that passed contained similar language, and in pertinent part render the words man and woman, as relating to the marital or familial relationships, as gender neutral for all purposes. Additionally, the measures ensure that clergy persons opposed to the practice would not be forced to marry same-sex couples should it go against their personal religious convictions. A similar measure was voted on and is expected to pass in Washington in the new few days.

 

As a result of its referendum, Maine plans to begin granting marriage licenses to gay couples by the end of the year. Proponents of the bill were relieved, noting that a similar bill had failed in 2009 when voters rejected the Maine governor’s proposal to permit same-sex marriage in the state.

    

These results mark a shift in American attitudes toward same-sex marriage. Notably, Paul Guequierre of the Human Rights Campaign states, “[W]e’ve lost at the ballot box 32 times. History was made tonight.” Marc Solomon, the campaign director at the Freedom to Marry, commented that “[I]tʼs hard to overstate the national significance of [the Maine referendum].”  Fred Sainz, another spokesperson for the Human Rights Campaign, noted “[t]he secret to our success is that we won over hearts and minds. Americans are fair and want to see their gay and lesbian friends, coworkers, and family members have the freedom to marry.”   

As another first, Tuesday night also saw the election of the first openly lesbian senator, democrat Tammy Baldwin of Wisconsin. Elsewhere, voters in Minnesota voted to block a state constitutional amendment seeking to ban same-sex marriage, another victory for gay-marriage-rights activists. 

 

Presently, 38 states have enacted bans on same-sex marriage by amending their respective state constitutions to define marriage as a union solely between a man and a woman. However, same-sex marriage rights now exist in eight states—Maine, Maryland, Massachusetts, Connecticut, Iowa, Vermont, New Hampshire, and New York—and are likely to expand in the future.


Keywords: litigation, minority trial lawyer, same-sex-marriage, marital rights, referendum, state constitutions


Joseph M. Hanna, Goldberg Segalla, Buffalo, New York


 

October 2, 2012

Justice Ginsberg: Supreme Court Will Review DOMA in 2012


In a talk at the University of Colorado in Boulder about the changing legal profession, Justice Ruth Bader Ginsberg suggested that the Supreme Court may be reviewing the Defense of Marriage Act (DOMA) soon.


Ginsberg mostly talked about entering the legal profession at a time when there were few female lawyers and even fewer female judges. She expressed her prediction for DOMA after she was asked a student-submitted question about the Equal Protection Clause and whether the Supreme Court would consider applying it to sexual orientation.


After reminding the audience that she could not talk about matters that would come to the Court, Ginsberg said “I think it’s most likely that we will have that issue before the court toward the end of the current term.”


DOMA was passed by Congress in 1996 and signed by President Bill Clinton following a Hawaii Supreme Court ruling in 1993 that made it appear as though Hawaii intended to legalize gay marriage. It defines marriage, for the purposes of federal law, as “only a legal union between one man and one woman as husband and wife.”


The law has been declared unconstitutional by a New York federal judge and went to oral arguments in front of the Second Circuit on September 27.


Many states have banned gay marriage, and eight states have approved it. Massachusetts was the first to approve gay marriage in 2004, and Connecticut, New York, Iowa, New Hampshire, Vermont, Maryland, and Washington state have since followed. The Maryland and Washington laws are not yet in effect.


In February 2011, President Barack Obama and Attorney General Eric Holder directed the Department of Justice to no longer defend the act.


Joseph M. Hanna, Goldberg Segalla, Buffalo, New York


 

October 2, 2012

Diversity Nonprofit Urges ABA to Amend Model Rules


The Institute for Inclusion in the Legal Profession (IILP) recently sent a letter to ABA president Laurel Bellows urging the organization to amend the Model Rules of Professional Conduct to incorporate an obligation to promote diversity and inclusion within the legal profession.


IILP wrote, “[t]he legal profession continues to lag behind other professions in terms of diversity. Given the importance of our justice system, and the roles and responsibilities that lawyers and judges bear, it is critical for our profession to affirmatively address diversity in the Model Rules of Professional Conduct.”


The ABA has not commented on the merits of the proposal, but has announced that the proposal will “work its way through the ABA’s legislative process.”


The ABA’s Model Rules of Professional Conduct provide recommendations for the ethical practice of law, including suggestions for the lawyer-client relationship, advertising, and the structure and responsibility of firms. Corresponding state rules often resemble the ABA Model Rules, and those state rules are binding. Therefore, IILP argues, the ABA’s adoption of a diversity rule would create a “ripple effect” throughout the country.


When assessing the proposal, the ABA will need to consider the details of the rule. These details include what the rule will say, what the rule is trying to accomplish, and whether sanctions will attach to the rule.


IILP has asked that the ABA’s Standing Committee on Ethics and Professional Responsibility develop a resolution in time for consideration in 2013.


Joseph M. Hanna, Goldberg Segalla, Buffalo, New York


 

October 2, 2012

CA Law Sends Gay-Conversion Therapies to 'Dustbin of Quackery'


California Governor Jerry Brown signed SB 1172—placing a ban on gay-conversion therapy for patients under 18—into law on September 29, 2012. The law is the first of its kind and will take effect on January 1, 2013.


The law aims to protect lesbian, gay, bisexual, and transgender minors from the “reparative therapies” administered by mental-health professionals with the purpose of altering sexual orientation or gender identity. These “reparative therapies” involve a number of techniques, including counseling, shock therapy, and even exorcism.


Gov. Brown stated “This bill bans non-scientific ‘therapies’ that have driven young people to depression and suicide. These practices have no basis in science or medicine and they now will be relegated to the dustbin of quackery.”


A spokesman for the National Association for Research and Therapy of Homosexuality has already promised to file a “major lawsuit” within the week to challenge the law. The Pacific Justice Institute also intends to file a separate lawsuit grounded in First Amendment claims. Ultimately, the legal battle is likely to focus on the questions of whether reparative therapy constitutes child abuse, and if the ban itself is unconstitutional.


Joseph M. Hanna, Goldberg Segalla, Buffalo, New York


 

October 2, 2012

Current Supreme Court Term Big For Civil Rights


The current U.S. Supreme Court term is likely to be one of the most significant terms for civil rights in decades. Decisions are expected on such issues as race in classrooms, voting rights, and legal recognition of same-sex marriage.


The first case on the docket addresses the constitutionality of affirmative action, and will come before the Court on October 10. Abigail Fisher, a white student denied admission to the University of Texas at Austin, has challenged the constitutionality of considering the race of applicants as a factor in admitting an incoming class. Under the university’s policy, students in the top 10 percent of academic performers are the first admitted, and the remaining members are selected based on a number of factors, one of which is the race of the applicant. According to Fisher, the consideration of race cost her a spot in the university class. The Supreme Court will need to determine if this case is distinguishable from the 2003 case that upheld a race-conscious admissions program at the University of Michigan law school.


The Court will also be examining the Voting Right Act this term. The act was most recently renewed in 2006, and requires states with a history of discrimination at the polls to get federal permission before making any changes to election procedures. The list of areas required to get this permission include nine entire states as well as 12 cities and 57 counties. Parties to this litigation argue that the pre-clearance standards are unfair. Pending cases request that the Court either strike down the pre-clearance requirement or modify the list of areas.


It also looks like the Supreme Court will be addressing challenges to the federal Defense of Marriage Act (DOMA). If the Court strikes down DOMA as discriminatory, the federal government would be forced to recognize gay marriages as legal in states that permit same-sex marriage.


Joseph M. Hanna, Goldberg Segalla, Buffalo, New York


 

September 19, 2012

Social-Security-Benefit Cases Need Individual Consideration


In a per curiamopinion, the Ninth Circuit has ruled that individualized consideration must be given to each case challenging the denial of social-security benefits. It is therefore an abuse of discretion for a district court to promulgate an informal local rule limiting the amount of attorney fees that can be awarded under the Equal Access to Justice Act in cases challenging the denial of social-security benefits. Costa v. Commissioner of Social Security Administration, 2012 U.S. App. Lexis 17946 (9th Cir. 2012).


The Equal Access to Justice Act “provides for an award of attorney’s fees to a party that prevails against the United States in a proceeding for review of an agency action, unless the court finds ‘that the position of the United States was substantially justified or that special circumstances make an award unjust.’” Costa, supra, citing 28 U.S.C. § 2412(d).


Oregon resident Shane Costa applied for social-security disability benefits based, inter alia, on bipolar and eating disorders, spinal pain, and anxiety. The Social Security Administration denied his claim, and Costa sought review in the district court for the District of Oregon, where the parties consented to entry of a final judgment by a magistrate judge.


Although the magistrate reversed the administrative law judge’s finding that Cohen was not disabled, he nonetheless reduced the attorney fee sought by Cohen under the Equal Access to Justice Act. In so doing, the magistrate reduced the fee request by nearly a third without providing specific reasons for making such reductions other than reliance on an informal district-wide rule that set 40 hours as the upper limit for a social-security disability appeal that “does not present particular difficulty.”


In finding that the magistrate had abused his discretion, the Ninth Circuit decreed that district courts may not apply “de facto caps” that limit the time attorneys can reasonably expend on “routine” social-security cases. The Ninth Circuit further questioned “the usefulness of reviewing the amount of time spent in other cases to decide how much time an attorney could reasonably spend on the particular case before the court.” As the panel noted, “it is far less useful for assessing how much time an attorney can reasonably spend on a specific case because that determination will always depend on case-specific factors including, among others, the complexity of the legal issues, the procedural history, the size of the record and when counsel was retained.” Costa at *9–10.


Keywords: litigation, minority trial lawyer, attorney fees, Equal Access to Justice Act, social security, Ninth Circuit


Edward Romero, Greenan, Peffer, Sallander & Lally LLP, San Ramon, California


 

September 19, 2012

Diversity of Fortune 500 General Counsel at All-Time High


A recent survey released by the Minority Corporate Council Association (MCCA)—an association formed to “advance the hiring, retention, and promotion of diverse attorneys in legal departments and the law firms that serve them”—indicated that the number of diverse/minority attorneys serving as general council within Fortune 500 companies reached an all-time high in 2011.


Some of the more impressive gains of 2011 were made by women, who added 23 new positions since 2009 and now hold the top legal position at 21 percent of Fortune 500 companies. Interestingly, half (50 percent) of these women general counsel were based in six states—California (12 percent), New York (11 percent), Texas (10 percent), Illinois (8 percent), New Jersey (7 percent) and Virginia (7 percent). Though a small decrease in women general counsel was recorded among Fortune 1000 companies, with four positions lost since 2011, these losses can be explained by the departure of six companies from the Fortune 1000 to the Fortune 500. Of these female general counsel officers, 16 percent identified themselves as minorities, the highest MCCA survey percentage to date.


Minority general counsel officers made slightly smaller gains, but still added four positions—all female—making the 47 total minorities serving as general counsel at Fortune 500 companies the highest number ever. These gains come off a flat year for diversity in 2010, when no new minority general counsel positions were added.


In response to these gains, Joseph K. West, MCCA CEO and president, stated,


The number of minority general counsel at Fortune 500 companies has been steadily increasing since 2008. A tough economy and high unemployment have hit minorities particularly hard, but when solid growth and robust hiring return, we expect to see minorities continue their advance in the legal departments of the nation’s largest companies.


Keywords: litigation, minority trial lawyer, diversity, Fortune 500, general counsel


Joseph M. Hanna, Goldberg Segalla, Buffalo, New York


 

September 19, 2012

Sex-Based Discrimination Includes Gender Identity


A recent letter issued by the Department of Health and Human Services (DHHS) declared that sex-based discrimination includes discrimination on the basis of gender identity under section 1557 of the Affordable Care Act, a move widely lauded by the lesbian, gay, bisexual, and transgender (LGBT) community.


In pertinent part, the letter stated,


We agree that Section 1557’s sex discrimination prohibition extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity and will accept such complaints for investigation. Section 1557 also prohibits sexual harassment and discrimination regardless of the actual or perceived sexual orientation or gender identity of the individuals involved.


In addition to its promise to investigate, the DHHS listed several resources available to LGBT and other individuals who wish to stay informed of their rights, including links to resources through which potential violations could be reported.


Still, the ultimate effect of this declaration is unclear. Though recent court decisions and Equal Employment Opportunity Commission statements have taken a similar stance on the issue—including a declaration that they are now accepting and investigating these types of sex-discrimination complaints under the health-care law—the true extent of the gains by the LGBT community has yet to be seen. Notably, while a growing number of employers do provide health benefits aimed at the specific needs of transgender individuals, there is no requirement that insurers provide coverage for gender-transitional procedures, such as gender-reassignment surgery. One survey of large employers in 2010 noted that only “14% of its members covered gender reassignment surgery and 32% covered nonsurgical treatments such as hormones and counseling.”


Still, prompted in part by the concerns of younger workers over workplace diversity and tolerance, employers have been making efforts to address the issues faced by transgender individuals with regard to insurance coverage. Between 2011 and 2012, the number of employers receiving a perfect score on the Human Rights Campaign’s annual corporate equality index—a survey that examines how different companies treat their LGBT employees—increased from 85 to 207.


Keywords: litigation, minority trial lawyer, LGBT, Affordable Care Act, Department of Health and Human Services


Joseph M. Hanna, Goldberg Segalla, Buffalo, New York


 

September 19, 2012

Texas Redistricting Plans Discriminate Against Minorities


On August 28, 2012, a three-judge special panel determined that Texas’s redistricting plans discriminated against the state’s minorities. The panel said Texas could not prove that the plans for the state’s congressional district and houses of the legislature were not drawn without intentional discrimination against the minority population. Specifically, there appeared to be discrimination against the growing Latino population. Additionally, the new district lines “removed the economic guts” from the congressional districts that are currently held by African Americans.


Section 5 of the Voting Rights Act requires any voting changes in states with a history of discrimination to undergo federal approval. Texas is the largest state covered by this section. Texas Attorney General Greg Abbot has said the state will appeal the recent ruling to the U.S. Supreme Court, stating, “Today’s decision extends the Voting Rights Act beyond the limits intended by Congress and beyond the boundaries imposed by the Constitution.” Some states and jurisdictions covered by section 5 have asked the Supreme Court to strike down the law, arguing that it is no longer needed.


Texas State Representative Trey Martinez Fischer, chairman of the Mexican American Legislative Caucus, argues that the population of Texas is changing by the day, and the redistricting plans approved in 2011 represented “a very old and different Texas.” Notably, after the 2010 census, Texas received four additional congressional districts due to a population growth of approximately 4.3 million people. Latinos comprised 65 percent of the increase, blacks 13.4 percent, and Asian Americans 10.1 percent. In its ruling, the panel agreed with the Obama administration that at least one of the new districts should have been drawn to enable a minority to be elected to office.


This decision is not likely to impact the current districts before the November election, although a challenge is reportedly being considered.


Keywords: litigation, minority trial lawyer, Texas, redistricting, Voting Rights Act


Joseph M. Hanna, Goldberg Segalla, Buffalo, New York


 

September 19, 2012

Arizona "Show Me Your Papers" Provision Prevails


On September 5, 2012, U.S. District Judge Susan R. Bolton denied a request by civil-rights groups to temporarily block enforcement of the “show me your papers” provision of Arizona’s controversial S.B. 1070 immigration law. According to this provision, Arizona can require police officers to check the immigration status of individuals they stop or detain if they have a “reasonable suspicion” that the individual is an illegal alien.


The American Civil Liberties Union (ACLU), the National Immigration Law Center, and the Mexican American Legal Defense and Education Fund in Valle del Sol v. Whiting, 10-01061, U.S. District Court, District of Arizona (Phoenix) requested that the court prevent Arizona from enforcing the law until the courts have ruled whether it violates the U.S. Constitution.


Judge Bolton declined to ignore the “clear direction” of the U.S. Supreme Court that the section “cannot be challenged further on its face before the law takes effect.” In June 2012, the Supreme Court struck down large portions of S.B. 1070 on the grounds that states must defer to the federal government on immigration policy. However, the court said the police checks for immigration status would be permitted to continue.


The civil-rights groups opposing the provision are not backing down. Linton Joaquin, general counsel of the National Immigration Law Center, stated, “Today’s ruling will lead to rampant racial profiling of Latinos and others who might be suspected of being in Arizona without authorization . . . . We are committed to continuing the fight against this law in our case until it is permanently struck down.”


In her ruling, Judge Bolton also blocked a provision of S.B. 1070 that makes it a crime to transport or harbor illegal immigrants. She relied on a U.S. Court of Appeals decision from Atlanta that held the similar provisions in Alabama and Georgia immigration laws were preempted by federal law.


S.B. 1070 will not take effect until further order from the court. According to Arizona, the state’s 370-mile border with Mexico is where half of the nation’s illegal immigrants cross into the country.


Keywords: litigation, minority trial lawyer, Arizona, immigration


Joseph M. Hanna, Goldberg Segalla, Buffalo, New York


 

September 19, 2012

California Imposes New Rules for Habeas Corpus Petitions


In a unanimous opinion, the California Supreme Court has decreed that second and subsequent petitions for habeas corpus will be limited to 50 pages subject to an exception for good cause. Initial petitions for habeas corpus are not subject to length. The page limitations were imposed at the end of August 2012 because the current system threatens “to undermine the efficacy of the system for adjudicating petitions for collateral relief” in death penalty cases. In re Reno, 2012 Cal. Lexis 8295 (Aug. 30, 2012).


In California, death sentences are automatically appealed to the state supreme court, bypassing the intermediate court of appeal. Article VI, section 11 of the California Constitution; Penal Code § 1239(b). If the judgment is affirmed on appeal, a capital defendant is entitled to challenge the judgment by filing in the California Supreme Court a petition for a writ of habeas corpus. If the petition is denied, most, if not all, capital defendants file habeas petitions in federal district court. Federal law, however, requires claims in a federal habeas petition to have first been exhausted in state court. Baldwin v. Reese, 541 U.S. 27 (2004); 28 U.S.C. § 2254(b)(1)(A). As a result, capital defendants “quite typically file a second habeas corpus petition” before the California Supreme Court “to raise unexhausted claims. Third and fourth petitions are not unknown.” In re Reno, supra, at *2–3.


The right to habeas corpus is guaranteed by the California Constitution and “may not be suspended unless required by public safety in cases of rebellion or invasion.” In re Reno, supra, at *19–20. The writ permits a person deprived of his or her freedom “to bring before a court evidence from outside the trial or appellate record, and often represents a prisoner’s last chance to obtain judicial review.” Id. Habeas petitions strike at the finality of criminal judgments. It is therefore an extraordinary remedy in California, and the “availability of the writ properly must be tempered by the necessity of giving due consideration to the interest of the public in the orderly and reasonably prompt implementation of its laws and to the important public interest in the finality of judgment.” In re Reno, supra, at *23–24.


As a result, a petitioner’s failure in a second or successive habeas petition to


acknowledge the limitations of habeas corpus as an avenue of collateral attack and to make a plausible effort to explain why the claims raised are properly before the court, can be considered an abuse of the writ process. In this way, habeas corpus is not different from other types of civil writs that constitute extraordinary relief.


In imposing limitations on the length of subsequent writ petitions, the California Supreme Court further announced that counsel are “forewarned that the filing of abusive petitions in the future may subject them to financial sanctions . . . .” In re Reno at *207–08.


Keywords: litigation, minority trial lawyer, death penalty, habeas corpus petition, California


Edward Romero, Greenan, Peffer, Sallander & Lally LLP, San Ramon, California


 

August 23, 2012

Justice Department Supports Affirmative-Action Policy


The Supreme Court is set to hear oral arguments on the permissibility of the University of Texas’s affirmative-action program on October 10, 2012. On August 13, 2012, the Justice Department submitted a brief cosigned by several other government agencies, including the Departments of Defense, Education, Commerce, Labor, and Health & Human Services, to the Supreme Court in support of its view that a diverse college population was in the university’s and the government’s best interest. In essence, the brief asks the high court not to interfere with the university’s current practice of taking racial preferences into account for college admission decisions.


This case marks the first review of affirmative action in higher education since the Supreme Court’s 2003 decision in Grutter v. Bollinger, (123 S. Ct. 2325), which upheld the University of Michigan Law School’s use of racial considerations in university admissions. As the current composition of the Supreme Court is more conservative than the Grutter court, some believe that it will either overrule the decision or limit the permissible scope of university affirmative-action programs in the future.


The case arose when Abigail Fisher, a white student, was denied admission to the school in 2008. Shortly thereafter, Fisher filed suit, alleging that the school’s decision violated her civil and constitutional rights. Currently, the school admits most students based on class rank (candidates from the top 10 percent of their respective classes are generally admitted), and Fisher had not made the cutoff. Still, the university does consider other factors, such as race, academic record, personal essays, leadership potential, extracurricular activities, and other honors/awards. The University of Texas’s admission criteria had been previously upheld by the Fifth Circuit Court of Appeals in June of 2011.


Solicitor General Donald B. Verrilli made sure to indicate that the consideration of race had not created an impermissible quota system, saying, “Race is not considered on its own, and it is never determinative of an applicant’s admission by itself. Rather, race is one of a number of contextual factors that provide a more complete understanding of the applicant’s record and experiences. That is a far cry from impermissible racial balancing.”


The Supreme Court granted certiorari to review the decision on February 21, 2012, with Justice Kagan taking no part in the consideration. Fisher v. University of Texas at Austin, 132 S. Ct. 1536.


Keywords: litigation, minority trial lawyer, affirmative action, Department of Justice


Joseph M. Hanna, Goldberg Segalla, Buffalo, New York


 

August 23, 2012

Study Examines Effect of Multiple Factors on Firm Diversity


Professor William D. Henderson of the Indiana University Maurer School of Law published a new study, “Diversity by the Numbers [PDF],” in the July 2012 edition of the National Association for Law Placement, Inc.’s (NALP) NALP Bulletin, which found that law-firm partner diversity varied across various regions throughout the country. In particular, it noted that while aggregate percentages of minority partners in law firms were still low, certain geographic locations/legal markets had proportionately higher concentrations of these minority partners.


For example, the study found that while African Americans only comprised 1.5 percent of all reported NALP Directory (a resource used by law students during recruitment season for summer associate positions) partners, they accounted for 2.5 percent of partners in Washington, D.C., and 3.9 percent of partners in Atlanta, Georgia. Similarly, although Hispanics comprised only 1.3 percent of all NALP Directory partners, they made up 3.9 percent of all law partners in the U.S. Southeast, excluding Atlanta. Nearly 45 percent of all Asian law partners were concentrated in Los Angeles, San Francisco, and the West Coast/Rocky Mountain region. By contrast, minority partners accounted for only 1.1 percent of all partners in New York City.


The study went on to opine that the best way to increase the proportional diversity of partners in large law firms is to increase the number of diverse entry-level attorneys. Henderson noted that the following four factors had a significant impact on the number of diverse entry-level associates at any given law firm:


  • the geography of the branch office (as noted above, minority candidates are drawn to places where similar minorities have traditionally bee successful);
  • the firm and office size (diverse candidates were generally drawn to large firms with more exhaustive recruiting programs);
  • the New York City effect (noting that while many diverse associates began careers in New York City, very few associates there—including majority associates—actually make partner); and
  • the existing diversity of the firm’s partners (“the best predictor of minority associate recruitment is the percentage of minority partners”).

 

On a separate note, the study noted that those firms who focused on associate development (in other words, those who provided a clear roadmap to partnership and provided clear programs for associate development/promotion) could increase firm diversity levels by retaining a higher proportion of newly recruited diverse attorneys.


The data used during the study was taken from the 2005–2006 edition of the NALP Directory.


Keywords: litigation, minority trial lawyer, diversity, legal profession


Joseph M. Hanna, Goldberg Segalla, Buffalo, New York


 

August 23, 2012

Boy Scouts Reaffirms Policy of Barring Openly Gay Members


On July 17, 2012, the Boy Scouts of America (BSA) announced that it would continue its policy of excluding openly gay boys from membership and excluding homosexual adults from serving as scoutmasters.


The policy states, “While the B.S.A. does not proactively inquire about the sexual orientation of employees, volunteers or members, we do not grant membership to individuals who are open or avowed homosexuals or who engage in behavior that would become a distraction to the mission of the B.S.A.”


In a previous 2000 decision, the U.S. Supreme Court upheld 5–4 the right of the BSA to expel a gay assistant scoutmaster. The Court stated that the BSA had the right to determine the values it wanted to portray because it is a private organization. After experiencing significant public pressure to reevaluate the issue, the BSA formed a committee in 2010 to determine whether the policy was in the best interests of the organization. Girl Scouts, the Boys and Girls Clubs, and 4-H Clubs all forbid discrimination based on sexual orientation. The committee just released its decision affirming the policy.


Keywords: litigation, minority trial lawyer, homosexuality, Boy Scouts of America


Joseph M. Hanna, Goldberg Segalla, Buffalo, New York


 

August 23, 2012

Title IX, Now 40 Years Old, Let Women Win Big at Olympics


This year marks the 40th anniversary of Title IX, the law that opened the world of sports to America’s women and girls. This is also the year that women made the strongest presence in the Olympics.


The London Games featured more female athletes than any other Olympic Games in history. Almost 5,000 women from more than 200 nations appeared. For the first time, women represented every national team. Additionally, more women than men made the U.S. team, and women won more gold medals than the American men. The United States took home 46 gold medals—more than any other nation—and U.S. women won 29 of them.


Arguably, this success is due in part to the fundamental change that occurred with the passing of the Education Amendments Act of 1972. This act, more commonly known as Title IX, was the first comprehensive federal law to bar gender discrimination in all aspects of education. The impact of Title IX was evident to observers of the recent Olympics. Prior to 1972, there was no provision in education for funding women’s organized sports. The first full sports scholarship was not granted to a woman until 1974. If not for Title IX, the impressive talents of American female athletes would not have been featured in the London Olympics.


Keywords: litigation, minority trial lawyer, Olympics, Title IX


Joseph M. Hanna, Goldberg Segalla, Buffalo, New York


 

June 14, 2012

Right to Effective Counsel Extends to Plea Bargains


In March 2003, Anthony Cooper pointed a gun at the head of Kali Mundy and fired. The shot missed and the woman fled with Cooper in pursuit, firing his gun at her. Eventually, Mundy was shot in the abdomen, buttocks, and hip, but she survived. Cooper was later charged under Michigan law with assault with the intent to murder, possession of a firearm by a felon, possession of a firearm in the commission of a felony, and other crimes.


Before trial, prosecutors twice offered to dismiss two of the charges and recommend a sentence of 51–85 months on two remaining charges in exchange for a plea of guilty. Cooper rejected these offers after his attorney allegedly advised him that the prosecution would not be able to establish his intent to murder Mundy because she had been shot below the waist. Cooper also rejected a third, less favorable plea offer made on the first day of trial. Cooper was convicted after trial on all counts and received a mandatory minimum sentence of 185–360 months’ imprisonment.


On appeal, Cooper’s claim of ineffective assistance of counsel was rejected by the Michigan courts. Cooper then asserted this claim in a petition for federal habeas relief, which the federal district court conditionally granted after finding that the Michigan appellate court had unreasonably applied the constitutional standards for effective assistance of counsel as set forth in Strickland v. Washington, 474 U.S. 52 (1985). The Sixth District Court of Appeals affirmed after finding that the performance of counsel was deficient when he informed Cooper of an incorrect legal rule that resulted in Cooper losing an opportunity to plead guilty and receive the lower sentence that was offered to him.


On certiorari, the Supreme Court vacated the decision of the Sixth Circuit in a splintered 5–4 decision authored by Justice Kennedy. In so doing, the majority concluded that the Sixth Amendment right to counsel extends to the plea-bargaining process. The Supreme Court also set forth the appropriate standards for review of such a claim at the plea-bargaining stage and remanded the case so that the state of Michigan could reoffer the plea.


To establish prejudice under Strickland, a criminal defendant must show that there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. at 694. In the context of a plea, the defendant “must show the outcome of the plea process would have been different with competent advice.” As Justice Kennedy writes:


[A] defendant must show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the judgment and sentence that in fact were imposed.


In adopting this standard, the majority rejected a narrower view of the Sixth Amendment proposed by the state of Michigan and the solicitor general. Under that view, no prejudice could arise under Strickland if the defendant who rejects a plea offer is later convicted at a fair trial.


The majority further noted that, as a consequence of the undisputed ineffective assistance of his attorney, Cooper went to trial and “received a more severe sentence at trial, one 3½ times more severe than he likely would have received by pleading guilty.” As such, “[e]ven if the trial itself is free from constitutional flaw, the defendant who goes to trial instead of taking a more favorable plea may be prejudiced from either a conviction on more serious counts or the imposition of a more severe sentence.”


Keywords: litigation, minority trial lawyer, plea bargains, effective assistance of counsel


—Bobbie K. Ross, chair of the Civil Rights Litigation Committee’s Second Amendment Subcommittee


 

May 16, 2012

Section of Litigation Holds Mock Trial at Annual Conference


The 2012 ABA Section of Litigation Annual CLE Conference crystallized my passion to become a litigator. It was an excellent investment! While there were several informative sessions, “Anatomy of a Trial Boot Camp” was by far the conference highlight. There, industry leaders taught the fundamentals of trial through lectures and an all-day mock trial. Here are the most important points.


Theory and Theme
Every case should have three theories—legal, factual, and persuasive. A case theory is an explanation of what really happened from your client’s perspective. This theory should be advanced through a consistent theme told as a story. And, like any great story, it should include a beginning, middle, and end.


Although basic, these essentials are often overlooked, and the jury is left to draw inferences that may or may not be favorable. Don’t leave anything to chance. Lead the jury. Tell them exactly where you want them to go and which inferences to draw in your favor, and persuade them through your theories and theme.


Opening Statement
Own the room. While all eyes are on you, make it count. Make movements with intentionality. Show the appropriate deference to the court. In doing so, not only does it show professionalism, but it also enhances your credibility with the jury. Lastly, don’t overpromise (in other words, don’t make statements like, “in this case, you will see”). If you aren’t able to keep that promise due to happenstance or evidence preclusion, it will adversely affect your credibility.


Direct and Cross-Examination
Continue to advance your case through each witness. Phrase questions in a manner consistent with your theme. Make the points memorable and understandable to a layperson. Do not follow a script. While you should thoroughly prepare questions, it’s more important to listen to the responses of the witness and ask questions accordingly.


Closing Argument
Close effectively. People tend to remember the first and last thing you’ll say—this is called primacy and recency. With this in mind, your closing argument should closely resemble your opening statement. There, you told the jury where you’d take them, and now that you have, use the closing argument to arm the jurors who you’ve convinced throughout the trial so that they can convince others during deliberation. If it is allowed in your jurisdiction, request jury instructions prior to your closing. This prevents a closing that’s too technical. Lastly, don’t overdo it. Don’t use the closing as a way to review the full case. That will bore the jury. Use the closing as a way to highlight your most important points in a way that’s consistent with your theories and theme. Again, the closing is simply a way to arm your jurors who decide in your favor.


Keywords: litigation, minority trial lawyer, case theory, opening statement, closing statement, examination


—LaKeisha Randall, J.D. pending Georgia licensure


 

May 16, 2012

Even Nonviolent Felons Lack Right to Bear Arms


In McDonald v. City of Chicago, 130 S. Ct. 3020 (2010), a plurality of the U.S. Supreme Court extended to the states the right of citizens to keep and bear arms. This right under the Second Amendment of the U.S. Constitution was expressed in District of Columbia v. Heller, 554 U.S. 570 (2008). A Wisconsin appellate court, however, has qualified the scope of the Second Amendment by finding as constitutional a Wisconsin statute that bans felons, including nonviolent ones, from possessing firearms. State of Wisconsin v. Pocian [PDF], Wisconsin Appeal No. 2011AP1035-CR (April 11, 2012).


In 1986, the defendant, Thomas Pocian was convicted of three counts of writing forged checks. Although he had completed his probation, Pocian remains a felon because of this conviction. Nearly 22 years later, in November 2008, Pocian shot two deer with a rifle borrowed from his father. After Pocian registered the deer with the Wisconsin Department of Natural Resources (DNR), he was charged with being a felon in possession of a firearm in violation of Wisconsin Statute Section 941.29, which prohibits a felon from possessing a firearm. Pocian moved to dismiss the charge on the grounds that the statute was facially unconstitutional as applied to him. The trial court denied the motion and Pocian filed an interlocutory appeal that was granted. State of Wisconsin v. Pocian, supra, at 3.


In affirming, the court of appeals concluded that the ban on felons possessing firearms is constitutional and extends to all felons. In so doing, the court noted the language found in District of Columbia v. Heller [PDF], 554 U.S. 570, 626–7 (2008), which states that nothing in that decision “should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons, and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Pocian, supra, at 5. As a result, the Wisconsin court noted that, under Heller, such “regulatory measures are ‘presumptively lawful.’” Id. (citing Heller at 627 n. 26).


While the Wisconsin Court of Appeal had previously upheld Wisconsin Statute Section 941.29 against an over-breadth challenge in State v. Thomas, 683 N.W.2d 497 (2004), the Pocian court noted that the ruling in Thomas was based on a standard of review of rationale basis that Heller indicated would not be appropriate in cases involving the Second Amendment. Pocian at 6–7 (citing Heller, 554 U.S. at 628, n. 27).


The question before the court in Pocian was therefore the standard of review to be applied in Second Amendment cases in light of Heller and McDonald. Pocian adopted an intermediate scrutiny used by the Seventh Circuit in United States v. Skoien, 614 F.3d 638 (7th Cir. 2010). Under this standard, a statute passes constitutional muster if it is “substantially related to an important governmental objective.” Relying on United States v. Williams, 616 F.3d 685 (7th Cir. 2010), Pocian concluded that public safety is an important governmental objective, and denying firearms to convicted felons is substantially related to that objective. Relying on Williams, the Pocian court concluded that it was constitutional to categorically ban felons from possessing guns. Pocian at 7.


Pocian’s as-applied challenge was also rejected. In so doing, the court of appeal noted that, while Pocian was a nonviolent felon, public safety comprises more than just the prevention of violence—it includes the prevention of acts that are punished as felonies. As a consequence, the “legislature’s decision to deprive Pocian of his right to possess a firearm is substantially related” to the goal of public safety. Pocian at 8. Relying on United States v. Yancey, 621 F.3d 681 (7th Cir. 2010), the court of appeal further noted that “most scholars of the Second Amendment agree that the right to bear arms was tied to the concept of a virtuous citizenry and that, accordingly, the government could disarm ‘unvirtuous citizens.’” Pocian at 8 (quoting Yancey at 684-85).


Keywords: litigation, minority trial lawyer, Second Amendment, felons, Wisconsin


—John Pierce, Bristol, Virginia


 

May 16, 2012

Ninth Circuit Grants John Yoo Qualified Immunity


John C. Yoo is a former law clerk to Justice Clarence Thomas—a former general counsel of the U.S. Senate Judiciary Committee and a former deputy assistant attorney general in the Department of Justice’s Office of Legal Counsel (OLC), where, during the administration of George W. Bush, he authored an August 2002 memoranda that narrowly defined the term “torture” and that is now known as the Torture Memo. It was in his capacity as an official of the OLC that Yoo was sued in federal court by convicted felon Jose Padilla and his mother for allegedly subjecting Padilla to coercive interrogation and harsh detainment conditions that Padilla attributes to the Torture Memo. On May 2, three judges of the Ninth Circuit concluded that Yoo, a professor at Berkeley Law School, “must be granted qualified immunity” from the claims of Padilla in light of a 2011 decision of the U.S. Supreme Court. Jose Padillia and Estela Lebron v. John Yoo, U.S. Court of Appeals for the Ninth Circuit Case No. 09-16478, 12 C.D.O.S. 4875.


Padilla was arrested in May 2002 at a Chicago airport on a material witness warrant issued by the district court for the Southern District of New York, where he was held in jail. During this time, President Bush declared Padilla an “enemy combatant,” and he was transferred to a military prison in Charleston, South Carolina, where Padilla was held for more than three and a half years.


In January 2006, Padilla was moved to a federal detention center in Miami, Florida, where he stood trial for federal criminal charges unrelated to his status as an enemy combatant and was found guilty. On appeal, a divided Eleventh Circuit affirmed Padilla’s conviction, vacated his sentence as unreasonably low, and remanded for resentencing.


Two years after his military detention ended in January 2008, Padilla and his mother filed a civil action against Yoo, claiming that he set in motion Padilla’s interrogation and detention “by formulating unlawful policies for the designation, detention and interrogation of suspected ‘enemy combatants’ and by issuing legal memoranda designed to evade legal restraints on those policies and to immunize those who implemented them.” The first amended complaint further alleged that, during his detention, Padilla was subjected to:


prolonged isolation; deprivation of light; exposure to prolonged periods of light and darkness, including being ‘periodically subjected to absolute light or darkness for periods in excess of twenty-four hours’; extreme variations in temperature; sleep adjustment; threats of severe physical abuse; death threats; administration of psychotropic drugs; shackling and manacling for hours at a time; use of “stress” positions; noxious fumes that caused pain to eyes and nose; loud noises; withholding of any mattress, pillow, sheet or blanket; forced grooming; suspensions of showers; removal of religious items; constant surveillance; incommunicado detention, including denial of all contact with family and legal counsel for a 21-month period; interference with religious observance; and denial of medical care for ‘serious and potentially life-threatening ailments, including chest pain and difficulty breathing, as well as for treatment of the chronic, extreme pain caused by being forced to endure stress positions.


Yoo’s motion to dismiss was denied by the district court, which concluded that the plaintiffs could pursue an action against Yoo under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). The crux of the district court’s decision was that “any reasonable office would have understood in 2001–2003 that United States citizen enemy combatants in military detention must be afforded at least the constitutional and statutory rights afforded to ordinary prison inmates.” Padilla v. Yoo, supra.


In overruling the district court, the Ninth Circuit relied on Ashcroft v. al-Kidd, 131 S. Ct. 2074 (2011), which held that the former attorney general, John Ashcroft, “did not violate clearly established law by allegedly authorizing federal prosecutors to use material witness arrest warrants, supported objectively by reasonable suspicions, as a pretext for detaining terrorism suspects.” Moreover, the Ninth Circuit concluded that Yoo was entitled to qualified immunity “because it was not clearly established in 2001–03 that the treatment to which Padilla says he was subjected amounted to torture.” In so doing, the Ninth Circuit assumed “without deciding that Padilla’s alleged treatment rose to the level of torture,” but in 2001–03 it was not clearly established that Padilla’s alleged treatment was torture. As such, Yoo was immune from suit.


Keywords: litigation, minority trial lawyer, Ninth Circuit, torture, John C. Yoo


Edward Romero, Greenan, Peffer, Sallander & Lally LLP, San Ramon, California


 

May 8, 2012

Supreme Court Hears Oral Argument in Arizona Case


The U.S. Supreme Court heard oral argument on the constitutionality of Arizona’s controversial law seeking to enforce federal immigration, Senate Bill (S.B.) 1070, on April 25, 2012, in the case of Arizona v. United States. Among other things, section 2B of the statute requires Arizona law enforcement to attempt to verify the immigration status of those who are stopped or arrested if “reasonable suspicion exists that the person is an alien and is unlawfully present in the United States.” Only eight justices heard the matter following the recusal of Justice Kagan. Former Solicitor General Paul Clement argued on behalf of the state of Arizona; Solicitor General Donald Verrilli Jr. argued for the United States.


The state of Arizona asserted that it bears a disproportionate share of the costs of illegal immigration. Arizona further asserted that it adopted federal standards when it decided to devote state resources to enforce federal immigration laws in an effort to reduce the cost of illegal immigration.


Before Verrilli could begin speaking, Chief Justice Roberts adamantly noted that the case was not about racial profiling. Verrilli acknowledged this and made clear that the government’s brief did not mention racial profiling. Rather, the United States asserted that Arizona lacks the right to exclude from its borders persons who enter the United States unlawfully because such authority is exclusively vested by the Constitution with the federal government. In response, Justice Scalia asked, “[W]hat does sovereignty mean if it does not include the ability to defend your borders?” The questioning from other justices appeared to reject the government’s contention that S.B. 1070 was an effort to enforce federal law.


Instead, many of the justices appeared sympathetic to the argument that S.B. 1070 was “an effort to let [the federal government] know about violations of Federal law.” As a consequence, the government appeared to shift its argument, asserting that the Arizona law “has significant real and practical foreign relations effects.” Many of the justices, however, did not seem receptive to this argument.


Most of the discussion centered on section 2(B) of the Arizona statute. The liberal members of the Court seemed to focus on the length of time a person could be detained while law enforcement investigated their immigration status. The conservative justices, led by Justice Scalia, focused on whether the state of Arizona could be denied the right to close its borders to those having no right to be there. Toward this end, the state of Arizona argued repeatedly that individuals investigated under section 2(B) would not be detained beyond the limits established by the Fourth Amendment.


Section 5(C) was also discussed. This aspect of the Arizona law makes it an offense for individuals without proper immigration paperwork to seek employment in Arizona. Section 3 of the statute criminalizes intentionally failing to obtain and carry legal immigration papers in Arizona.


The majority of the Court appeared to favor upholding section 2(B) of the Arizona law. The Court’s inclination as to the other provisions of the statute, however, was less clear, especially because of the limited time allocated to these provisions.


Keywords: litigation, minority trial lawyer, Supreme Court, Arizona, immigration


Bobbie K. Ross, member of the Minority Trial Lawyer editorial board and chair of the Second Amendment Civil Rights Litigation Subcommittee


 

March 28, 2012

Rule of Professional Conduct Violates First Amendment


In an unpublished opinion, the Court of Appeals for the Second Circuit has found that Rule 7.4 of the New York Rules of Professional Conduct violates the First Amendment. J. Michael Hayes, Esq. v. State of New York Attorney Grievance Committee of the Eighth Judicial District, et al, Docket No. 10-1587–CV (March 2012). Rule 7.4 requires a prescribed disclaimer to be made by attorneys who state that they are certified as a “specialist.”


In 1995, the appellant, J. Michael Hayes, was awarded a certification in civil trial advocacy by the National Board of Trial Advocacy (NBTA), which is now a division of the National Board of Legal Specialty Certification. The NBTA is accredited by the American Bar Association. Following his certification, Hayes began referring to himself in various advertisements and in his letterhead as a “Board Certified Civil Trial Specialist.”


In June 1999, the predecessor of Rule 7.4 went into effect. It contained the same text as Rule 7.4 and allowed attorneys who are certified as a specialist by a private organization approved for that purpose by the American Bar Association to state that they are a “certified specialist,” provided that they identify the certifying organization and “prominently” make the following statement: “[1] the [name of the private certifying organization] is not affiliated with any governmental authority, [2] certification is not a requirement for the practice of law in the State of New York and [3] that certification does not necessarily indicate greater competence than other attorneys experienced in this field of the law.” Hayes, supra at 4.


In May 2000, the New York Grievance Committee contacted Hayes about the print size of a disclaimer used on a billboard advertisement he placed in Buffalo, New York. The advertisement contained the required disclaimer printed in six-inch letters, one inch larger than that required for federal cigarette warnings on billboards. The Grievance Committee also advised Hayes that it was opening an investigation into his use of the phrase “board certified” on his letterhead, which contained no disclaimer. Subsequently, the Grievance Committee advised Hayes that it would recommend formal disciplinary action be taken against him unless he modified the letterhead.


Hayes then filed a declaratory judgment action in the Western District of New York, but the court abstained and dismissed the action because of the pending state disciplinary action. As a consequence, Hayes advised the Grievance Committee that he would comply with the predecessor to Rule 7.4, and the investigation was closed.


In December 2001, Hayes filed a second declaratory judgment action in the same court. The district court concluded that the rule was not unconstitutionally vague as it applied to Hayes, that the disclaimer was sufficient to enable “a person ‘of ordinary intelligence’” to understand what was required, and that the rule provided sufficiently explicit standards to guide the Grievance Committee in the enforcement of the regulation.


The Second Circuit reversed. Although it determined as valid that part of Rule 7.4 requiring attorneys to state that the certifying organization was not “affiliated with any governmental authority” because this provision complied with the standards for regulating commercial speech as expressed in Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980), the court of appeal nonetheless found other aspects of the rule to be unconstitutional.


Specifically, requiring attorneys to state that certification is not a requirement for practicing law failed the test in Central Hudson because it was difficult to imagine that a significant portion of the public would believe that certification was needed to practice law and no harm was self-evident. See Hayes, supra at 15–16.


Likewise, the aspect of Rule 7.4 requiring attorneys to state that specialization or certification “does not necessarily indicate greater competence than other attorneys experienced in this field of law” also violated the First Amendment. As the court of appeal noted, this part of Rule 7.4 had “clear potential to mislead” because the qualifications necessary for certification “may reasonably be considered by the certifying body to provide some assurance of ‘competence’ greater than that of lawyers meeting only the criterion of having some experience in the field, and a contrary assertion has a clear potential to mislead.” Id. at 17.


Finally, the Second Circuit found that the disclaimer rule was unconstitutionally void for vagueness as it applied to Hayes because a lawyer of average intelligence could not anticipate that the six-inch lettering as used by Hayes would not meet the disclosure requirement.


Keywords: litigation, minority trial lawyer, First Amendment, New York, Second Circuit


Bobbie K. Ross, member of the Minority Trial Lawyer editorial board and chair of the Second Amendment Civil Rights Litigation Subcommittee


 

February 27, 2012

Dissent Would Take Defendant's Life for Attorney Errors


The world now knows the story of Cory R. Maples, or so it seems. Sentenced to death by an Alabama jury following his conviction for a double murder, Maples was subsequently abandoned by his lawyers during post-conviction proceedings, resulting in his failure to timely appeal the trial court’s order denying him post-conviction relief. This failure, known in the parlance of federal habeas practice as a procedural default, lead to the rejection by an Alabama federal district court of Maples’ petition for writ of habeas corpus, a decision affirmed by a split panel of the Eleventh Circuit. In so doing, the court of appeals pointed to the default as the reason for rejecting the petition. Maples would now be scheduled for execution but for the U.S. Supreme Court, which reversed the Eleventh Circuit after concluding that Maples was blameless for the default and that, under the circumstances, “no just system would lay the default at Maples’ death-cell door.” Maples v. Thomas, Commissioner, Alabama Department of Corrections, 565 U.S. ___ (2012). The opinion, however, was not unanimous.


In their dissent, Justices Scalia and Thomas would affirm the Eleventh Circuit because the majority opinion “invites future evisceration of the principle that defendants are responsible for the mistakes of their attorneys . . . .” Maples, slip op., Dissent, at 11. While recognizing that a default will not bar habeas review if a “petitioner demonstrates cause and actual prejudice,” the dissent would nonetheless hold a capital defendant responsible for the mistakes and omissions of counsel “because the attorney is the petitioner’s agent” and the petitioner therefore bears “the risk of attorney error.” Id. at 2–3. This rule of agency law, Justices Scalia and Thomas assert, apply when a criminal defendant has no constitutional right to effective assistance of counsel, such as in post-conviction and habeas proceedings. Id. at 3. In such instances, “the client bears the risk of all attorney errors made in the course of the representation, regardless of the egregiousness of the mistake.” Id. (citing Coleman v. Thompson, 501 U.S. 722, 754 (1991)) (emphasis added).


In contrast, mistakes made by counsel in proceedings where a defendant has a constitutional right to effective assistance of counsel “may constitute cause to excuse a resulting procedural default” because the state’s “failure to provide an effective attorney . . . makes the attorney’s error chargeable to the State, and hence external to the defense.” Maples, slip op., Dissent, at 3 (citing Strickland v. Washington, 466 U.S. 668 (1984)). As Justice Scalia quotes from Coleman, it “is not the gravity of the attorney’s error that matters, but that it constitutes a violation of petitioner’s right to counsel, so that the error must be seen as an external factor.”). Id.


In the view of the dissent, Maples failed to demonstrate cause excusing his default. While acknowledging that he was abandoned by the two Sullivan & Cromwell associates handling his case pro bono, the dissent nonetheless contends that Maples was not abandoned by either the firm or by Alabama local counsel. As such, Justices Scalia and Thomas would have Maples pay with his life for the mistakes of his lawyers. They reach this conclusion although the majority opinion states that Sullivan & Cromwell became aware of the default only after receiving a telephone call from the mother of the condemned. See Maples, slip op. at 9. The majority further notes that local counsel, who did not bother to call Sullivan & Cromwell after receiving the order denying the motion for post-conviction relief, “did not ‘operat[e] as [Maples’] agent in any meaningful sense of that word.” Id. at 19.


The dissent justifies the harshness of its result on notions of federalism and comity. As Justice Scalia writes, the “doctrine of procedure default reflects, and furthers, the principle that errors in state criminal trials should be remedied in state court” and federal habeas review “imposes significant costs on the States, undermining not only their practical interests in the finality of their criminal judgments . . . but also the primacy of their courts in adjudicating the constitutional rights of defendants prosecuted under state law.” Maples, slip. op., Dissent, at 1 (citation omitted). As such, precedent and the need to ensure “an orderly system of criminal litigation conducted by counsel” “allow a State to stand on its rights and enforce a habeas petitioner’s procedural default even when counsel is to blame.” See id. at 10. In other words, retain your lawyer with care.


Keywords: litigation, minority trial lawyer, procedural default, Supreme Court


Edward Romero, Greenan, Peffer, Sallander & Lally LLP, San Ramon, California


 

February 9, 2011

Ninth Circuit Affirms Same-Sex Marriage Ruling


In a highly anticipated and widely reported decision, a Ninth Circuit Court of Appeals panel affirmed a district court judgment ruling that California’s constitutional amendment banning same-sex marriage violated the Fourteenth Amendment to the U.S. Constitution. Prior to 2008, the California Supreme Court held that the California Constitution guaranteed the right to marry to both same-sex and opposite-sex couples. However, in November of 2008, through a ballot referendum known as Proposition 8, the people of California amended their state constitution to eliminate the right of same-sex couples to marry. Shortly after that amendment was passed, a group of plaintiffs brought suit in federal court to challenge the new law. The district court found that Proposition 8 was unconstitutional and struck it down.


The state of California appealed the district court’s decision to the Ninth Circuit Court of Appeals. In the Ninth Circuit case, Perry v. Brown [PDF], Case Nos. 10-16696 and 11-16577, the plaintiffs argued that, among other things, Proposition 8 and the California ban on same-sex marriage violated the Equal Protection Clause. A majority of the three-judge panel agreed with the plaintiffs and affirmed the district court. The Perry majority held that Proposition 8, which only excluded same-sex couples from marrying and did not impact any other rights of same-sex couples to enter into statutory “domestic partnerships,” improperly targeted a minority group. The court reasoned that, because Proposition 8 left in place the ability of same-sex couples to engage in all of the activities typically associated with marriage, it could not reasonably have been enacted for purposes such as promoting childrearing by biological parents, encouraging responsible procreation, or controlling the education of schoolchildren. Accordingly, the panel majority concluded that Proposition 8 lacked a purpose and only served to deny the legal designation of “marriage” from a particular minority group.


The Perry court specifically declined to address whether same-sex couples have a fundamental right to marry under the U.S. Constitution. Many commentators and observers have predicted that the case and the issue of same-sex marriage will now head to the U.S. Supreme Court.


Keywords: litigation, minority trial lawyer, California, same-sex marriage, Proposition 8


Brian Josias, Chicago, Illinois


 

February 9, 2011

Republicans Seek to Reform Post-Booker Sentencing


In the landmark 2005 case United States v. Booker, the U.S. Supreme Court, continuing and expanding on a line of cases that slowly chipped away at the sentencing restrictions placed on judges by legislatively imposed sentencing guidelines, turned the criminal sentencing regime in the federal courts on its head. In Booker, the Supreme Court held that the U.S. sentencing guidelines, which courts previously had to follow in meting out sentences to federal criminal defendants, unconstitutionally deprived defendants of their rights under the Sixth Amendment to the U.S. Constitution. The Court held that courts could no longer blindly adhere to the sentencing guidelines and that, instead, courts could only use the guidelines as nonmandatory suggestions.


Over the ensuing seven years, district and appeals courts have slowly realized that, when they sentence the more than 80,000 criminals that pass through their doors every year, the sentences given must be decided by the judge alone, based on the dictates of the applicable statute and notions of fairness, not just the calculations of the sentencing guidelines.


Although the changes brought about by Booker have generally been welcomed by defense attorneys and advocates for criminal defendants, in the past few months, Republicans in Congress have called for a return to a system that provides less discretion to the sentencing judge and will yield fewer “breaks” and longer sentences for most defendants. According to Republican Representative James Sensenbrenner and other critics of the post-Booker sentencing process, the current sentencing regime results in unfair disparities between similarly situated defendants based on factors such as geography and, more disturbingly, race.


Many have argued that, under Booker, black, male defendants have been the victims of unfair treatment, and the statistics calculated by the U.S. Sentencing Commission, the government agency that crafts the sentencing guidelines, reveal that, post-Booker, the average sentence for a black male was 20 percent longer than that for a white male. Defenders of the current system respond that this disparity is largely the result of white males being given lesser sentences, rather than black males receiving tougher sentences. An additional factor that may be partially to blame for the sentencing disparities is a perception that judges believe that the sentences recommended by the guidelines are overly harsh, especially in the areas of corporate fraud and child pornography.


Although defenders of the current system have urged Congress to leave it in place, congressional Republicans have proposed tough new mandatory minimum sentences to be imposed by statute and a reduction of the budget and role of the sentencing commission. The House Judiciary Committee plans to conduct more hearings on the issue in the spring.


Keywords: litigation, minority trial lawyer, sentencing guidelines, United States v. Booker


Brian Josias, Chicago, Illinois


 

February 9, 2011

Holder Tackles States' Efforts to Restrain Ballot Access


In the past several years, states across the country have launched efforts to make it more difficult for many people or groups of people to gain access to the ballot box. Thirteen states have passed new voting laws that include regulations that require government-issued photo IDs to vote or to register to vote, shorten early voting periods, or limit voter-registration efforts by third-party groups. Supporters of these laws claim that they are necessary to combat voter fraud. Opponents of these new voter-registration laws often complain that they are intended to disenfranchise minorities and argue that multiple studies and investigations, including an investigation by President George W. Bush’s Justice Department, demonstrate that voter fraud in the United States is not a significant problem. Those opposed to the new laws claim that they amount to a “modern-day equivalent of a poll tax” and cite studies that estimate that the new laws could affect more than five million voters across the country—primarily minorities who lack the necessary government-issued photo IDs.


While speaking at an event honoring the Martin Luther King Jr. holiday in Columbia, South Carolina, Attorney General Eric Holder indicated that the Department of Justice intends to aggressively review these new laws to ensure that they comply with the 1965 Voting Rights Act, which requires that 16 mostly Southern states with histories of discrimination secure Justice Department approval prior to making voting-law changes. Providing evidence for Attorney General Holder’s pledge, in late 2011, the Justice Department’s Civil Rights Division ruled that South Carolina’s new voter-identification law was illegal because it would disproportionately impact minorities.


Attorney General Holder also indicated that the Justice Department intended to forcefully respond to several lawsuits filed by states challenging the provisions of the Voting Rights Act itself. These lawsuits have asserted that developments in race-relations have outstripped the purpose and need for the law and have sought to have the law invalidated. In Holder’s South Carolina remarks, he responded to the allegations in these suits by noting that, although much progress has been made, “the reality is that—in jurisdictions across the country—both overt and subtle forms of discrimination remain all too common.”


In addition, the issues of voter fraud and the new state voting laws have been frequently raised in the ongoing race for the GOP presidential nomination, and some candidates for the GOP nomination have claimed that the Voting Rights Act permits unwanted meddling by the federal government. Despite this political attention, Holder stated that the Department of Justice would continue to vigorously scrutinize voting laws across the country to make certain that all Americans can vote without fear of discrimination.


Read the entire speech at the Department of Justice’s website.


Keywords: litigation, minority trial lawyer, Department of Justice, voter registration


Brian Josias, Chicago, Illinois


 

December 20, 2011

California Supreme Court Reverses Capital Murder Convictions


In a rare occurrence, a unanimous California Supreme Court reversed the guilt and death judgments imposed against two Los Angeles gang members who were convicted in 1997 of committing two murders with special circumstances. People v. Allen et al, California Supreme Court Case No. S066939, 11 California Daily Opinion Service (C.D.O.S) 14528. Reversal was ordered because the trial court abused its discretion in removing a juror during deliberations in the guilt phase of the trial in violation of California statutory law. In so doing, the California Supreme Court avoided defendants’ constitutional claims. The rationale expressed by the California Supreme Court may prove instructive in other cases involving juror removal.


Defendants were members of a Los Angeles gang. Allen, supra, at 14528. At trial, witnesses testified that defendant Allen shot the victims as they sat in a parked car. One witness, Carl Connor, claimed that he was near the scene and identified Allen as the shooter. Defendants, however, impeached Connor by introducing into evidence his employment timecard that showed he was at work the day of the murders. Conner, however, testified that he and a coworker named “Jose” frequently clocked in for each other so that their timecards would show that they were at work even when they were not. Id. at 14528.


During deliberations in the guilt phase of the trial, two jurors advised the court that another juror, No. 11, had made up his mind before the case had been submitted. Over defendants’ objections, the trial court then spoke individually to each juror regarding the conduct of Juror No. 11, who denied having made up his mind about the case before deliberations; admitted stating during deliberations that the prosecution had not “convinced” him; and further admitted to stating that based on his work experience, Hispanics do not falsify timecards. Juror No. 11 was not Hispanic. Id. at 14529. The trial court granted the prosecution’s motion to discharge Juror No.11, finding that he had made up his mind before deliberations and based his decision of the credibility of Connor not on the evidence, but on the personal opinions of how Hispanics as a group behaved. Id. at 14530. Defendants were convicted and sentenced to death.


In reversing, the California Supreme Court noted that “[g]reat caution is required in deciding to excuse a sitting juror” because it “may upset the delicate balance of deliberations.” Allen, supra, at 14531. The court further noted that a unanimous criminal verdict is an important and long-recognized safeguard in American law that “rests on the premise that each individual juror must exercise his or her own judgment in evaluating the case.” Because of this importance, review of a juror’s discharge “must appear on the record as a ‘demonstrable reality’” and “involves ‘a more comprehensive and less deferential review’ than simply determining whether any substantial evidence’ supports the court’s decision.” “This heightened standard” protects “a defendant’s fundamental rights to due process and a fair trial, based on the individual votes of an unbiased jury, which are also hallmarks in American jurisprudence.” Allen, supra, at 14531 (citation omitted). The court also made clear that a juror is required to “maintain an open mind, consider all the evidence, and subject any preliminary opinion to rational and collegial scrutiny before coming to a final determination. Id. at 14532–14533.


With this in mind, the Supreme Court concluded that the juror’s statements that the prosecution failed to prove its case did not establish prejudgment of the case. As the Court noted, “[a] juror who holds a preliminary view that a party’s case is weak does not violate the court’s instructions so long has his or her mind remains open to a fair consideration of the evidence, instructions, and shared opinions, expressed during deliberations.” Id at 14532.


Nor did the juror impermissibly rely on facts not in the evidence when he remarked that Hispanics do no falsify timecards. Rather, the juror’s “positive opinion about the reliability of Hispanics in the workplace” was “an application of his life experience, in the specific context of timecards and the workplace, that led him to conclude Connor was not telling the truth about the shooting.” Id. at 14534. Finally, the court made clear that “[i]t is not the province of trial or reviewing courts to substitute their logic for that of jurors to whom credibility decisions are entrusted.”


Edward Romero, Greenan, Peffer, Sallander & Lally, San Ramon, CA


 

December 9, 2011

Are Corporations Liable under the Alien Tort and Torture Victim Protection Acts?


The U.S. Supreme Court has granted certiorari in two cases involving the Alien Tort Statute and the Torture Victim Protection Act. Enacted as part of the Judiciary Act of 1789, the Alien Tort Statute (ATS) confers on federal district courts’ “original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” 28 U.S.C. section 1350. Over two centuries later, Congress enacted the Torture Victim Protection Act (TVPA) and codified it as a note to 28 U.S.C. section 1350. The TVPA creates a private right of action against individuals who engage in torture or extrajudicial killing.


The issue before the Supreme Court is whether corporations can be liable under the ATS and the TVPA. In the summer and fall of 2011, the D.C. and Ninth Circuits concluded that corporations are liable under the TCA. These decisions, however, conflict with the Second Circuit holding in Kiobel v. Royal Dutch Petroleum Company et al, 621 F.3d 111 (2nd Cir. 2010), rehearing en banc denied, 642 F.3d 379 (2nd Cir. 2010); rehearing denied 642 F.3d 268 (2nd Cir. 2011), certiorari granted. Kiobel holds that there is no federal question under the ATS when claims are asserted as to corporations. Kiobel, supra, at 117–120.


In Kiobel, Nigerian citizens alleged that Dutch, British, and Nigerian corporations engaged in oil exploration and production aided and abetted the Nigerian government in committing violations of the law of nations. Kiobel, supra, 642 F.3d at 117. Plaintiffs sought damages under the ATS and relied on international law—but not on a treaty of the United States—as the basis for their claims.


In affirming the district court’s dismissal of some of plaintiffs’ claims and reversing as to those claims that were not dismissed, the Second Circuit concluded that the ATS confers subject-matter jurisdiction over a limited number of offenses that are defined by “customary international law.” The court of appeal characterized such law as “those standards, rules or customs” that affect the “relationship between states or between an individual and a foreign state” and that are “used by those states for their common good and/or in dealings” among or between themselves. Kiobel, supra, at 117–118 (citation omitted). The limited subject matter of the ATS therefore requires federal courts to “examine the specific and universally accepted rules that the nations of the world treat as binding in their dealings with one another.” Id. at 118.


In holding that corporations are not subject to the ATS, Kiobel determined that “the principle of individual liability for violations of international law has been limited to natural persons . . . because the moral responsibility for a crime so heinous and unbounded as to rise to the level of an ‘international crime’ has rested solely with the individual men and women who have perpetrated it.” Kiobel, supra, at 119. As a result, because “customary international law imposed individual liability for a limited number of international crimes” the “ATS provides jurisdiction over claims in tort against individuals who are alleged to have committed such crimes.” Id. at 120.


Kiobel, however, conflicts with decisions from other circuits, including John Doe VII et al. v. Exxon Mobile Corporation et al., 654 F.3d 11 (D.C. Circuit 2011), holding that a corporation may be liable under the ATS. Moreover, in late October 2011, the Ninth Circuit concluded in a splintered en banc decision that the ATS extends to the conduct of corporations abroad. Sarei et al v. Rio Tinto, PLC et al., 2011 U.S. App. Lexis 21515.


Kiobel will be argued in tandem with a decision from the D.C. Circuit involving the TVPA. Mohamad et al. v. Rajoub, 634 F.3d 604 (D.C. Circuit 2011). In Mohamad, the sons and widow of a decedent sued the Palestinian Authority and the Palestine Liberation Organization for damages after the defendants allegedly tortured and killed the decedent in violation of both the TVPA and federal common law. The district court dismissed the action, concluding that only a natural person can be sued under the TVPA and that plaintiffs had no claim under federal common law. In affirming, the D.C. Circuit held that the term “individual” as used in the TVPA was intended to denote only natural persons.


Keywords: ATS, TVPA, Alien Tort Statute, Torture Victim Protection Act


Edward Romero, Greenan, Peffer, Sallander & Lally, San Ramon, CA


 

December 9, 2011

Truth in Savings Act Bars Claims under California Law


A California state appellate court has concluded that the 1996 amendments to the federal Truth in Savings Act (TISA), 12 U.S.C. section 4301 et seq., bar private rights of action under the state’s broad Unfair Competition Law (UCL). Rose v. Bank of America, N A., 11 California Daily Opinion Services (C.D.O.S.) 14134.  


The plaintiffs in Rose were deposit account holders who alleged in a putative state class action that the Bank of America failed to properly notify them of fee increases in violation of TISA. Enacted in 1991, TISA requires banks and other depository institutions to provide, inter alia, “clear and uniform disclosure” of “the fees that are assessable against deposit accounts.” 12 U.S.C. section 4301(b). The purpose is to allow consumers to “make a meaningful comparison between the competing claims of depository institutions with regard to deposit accounts.” Section 4310 of title 12 contained a private attorney general provision that provided a private right of action against depository institutions that failed to comply with either TISA or the regulation promulgated pursuant to the statute known as Regulation DD.


The private attorney provision of TISA, however, was repealed by Congress in 1996 through enactment of a sunset provision that became effective September 30, 2001. Schall v. Amboy National Bank, 279 F.3d 205, 209, note 2 (3rd Cir. 2002). The repeal of section 4310 “entirely eliminated the [private] cause of action, thereby releasing banks from future claims of private parties.” Rose v. Bank of America, supra, quoting Schnall v. Amboy National Bank, supra, 279 F.3d at 209. Federal agencies, however, may enforce compliance with TISA. Schnall v. Amboy, supra, at 209 n.2.


The UCL prohibits “any unlawful, unfair or fraudulent business act or practice.” Rose, supra. The scope of the statute is broad and encompasses “anything that can properly be called a business practice and that at the same time is forbidden by law.” Id. Moreover, the UCL borrows violations from other laws, making them independently actionable. See Korea Supply Co. v. Lockheed Martin Corporation, 29 Cal. 4th 1134, 1143 (2009). Notwithstanding its scope, the UCL cannot borrow violations from others laws that bar the action.


In holding that TISA bars claims under the UCL, the Rose court noted that Congress not only rejected a private right of action under TISA but also rebuffed legislation proposed in 2001 to reinstate civil liability. As such, the court concluded that “[a]llowing private plaintiffs to recover on a UCL claim based solely on TISA violations would constitute an ‘end run’ around the limits of enforcement set by Congress.” Id. (citing Gunther v. Capital One, N. A., 703 F.Supp. 2d 264, 270–271 (E.D. N.Y 2010)).  


Keywords: Truth in Savings Act, Unfair Competition Law, Bank of America, Rose


Edward Romero, Greenan, Peffer, Sallander & Lally, San Ramon, CA


 

December 8, 2011

Ninth Circuit Grants Qualified Immunity to Officers Using Tasers


The Ninth Circuit recently issued an opinion holding that the use of Tasers by law enforcement officers to subdue individuals suspected of committing minor offenses is subject to constitutional limits on the use of excessive force.


Two cases, Mattos v. Agarano and Brooks v. City of Seattle, were heard together en banc consolidated for disposition. Both dealt with plaintiffs-appellees who were tased by law enforcement after encounters surrounding minor offenses.


Malaika Brooks was pulled over for speeding. When she refused to sign the ticket or exit her vehicle, the officers tased her even though she had informed them that she was pregnant and “less than 60 days from having [her] baby.” After being tased multiple times, Brooks was detained and ultimately taken into custody.


Jayzel Mattos was tased when the police responded to a domestic dispute after Jayzel and her husband, Troy, had an argument. When Mattos stepped in between one of the officers and her husband to try to diffuse the situation, the officer tased her. Mattos and her husband were then arrested.


After their respective incidents, Brooks and Mattos both filed lawsuits under 42 U.S.C. § 1983, seeking damages for alleged Fourth Amendment violations. The officers claimed they were entitled to qualified immunity, but the lower court in both cases disagreed. The officers then appealed to the Ninth Circuit.


For qualified immunity to apply, it must be shown that (1) the facts shown must make out a clear violation of a constitutional right, and (2) that constitutional right must have been “clearly established” at the time of the violation.


Relying on Bryan v. MacPherson, 630 F.3d 805 (9th Cir. 2010), the Ninth Circuit found that although both Brooks and Mattos had alleged constitutional violations surrounding excessive force, the officers who tased them were entitled to qualified immunity, because at the time that each woman was tased, “‘there was no Supreme Court decision or decision of [the Ninth Circuit] addressing’ the use of a taser in dart mode.” Because of the lack of authority, the court concluded that reasonable officers “could have made a reasonable mistake of law regarding the constitutionality of the taser use in the circumstances” at hand and that the contours of the constitutional right alleged were not clearly established at the time of the violations.


Keywords: Ninth Circuit, tasers, law inforcement


Bobbie K. Ross, Michel & Associates, P.C., Long Beach, CA


 

December 7, 2011

Minority Teachers Are on the Rise, but Retention Is a Problem


A recent study by two researchers from The University of Pennsylvania shows that the efforts of government agencies and nonprofit organizations to recruit minority teachers has largely worked. Researchers Richard Ingersoll and Henry May found that the teaching field is much more diverse today than it was 20 years ago. While there was a 41 percent growth rate of white teachers, the growth rate of minority teachers was 96 percent. Since the late 1800s, the number of minority teachers increased from 325,000 to 642,000.


However, while these numbers indicate that recruitment strategies are working, research shows that these efforts have not been enough to bridge the gap between the number of minority students and minority teachers. For example, in the 2008–09 academic year, 41 percent of students in elementary and secondary schools were minority, yet only 16 percent of their teachers were of color.  


A major contributing factor to this problem was a high turnover rate of minority teachers.  In the 2003–04 academic year, 47,600 teachers of color entered the field, and by 2004–05, 56,000 minority teachers had left. The problem of turnover can be attributed to the poor working conditions of these teachers who are often found in public schools that educate mostly poor students. Ingersoll and May proposed that improving the working conditions for these teachers and in turn increasing the retention rate of minority teachers does not have to be an expensive endeavor. At the end of the day, it is more important to these minority teachers to feel valued as professionals.


Keywords: University of Pennsylvania, minority teacher, minority turnover


Dorcas Adekunle, Drexel University Earle Mack School of Law Student, Philadelphia, PA


 

August 16, 2011

Project for Attorney Retention: Fewer Promotions Among Female Lawyers


According to the latest report from the Project for Attorney Retention (PAR), female lawyers still lag behind their male counterparts in becoming partners. Although this is not a recent trend, the PAR report highlights the growing disparity between the two groups. According to the report, new male partners outnumbered new female partners more than two to one in 2011. The promotion rate of women at the 123 large law firms surveyed decreased two percentage points this year, from 34 percent to 32 percent. Such findings are in accord with recent data from other organizations tracking women in the legal profession. The National Association of Women Lawyers, for example, reported that while women made up 60 percent of staff attorney positions, a non-partnership track tier, they made up only 15 percent of equity partners at large firms.


Brian Josias, Cotsirilos, Tighe & Streicker, Chicago, IL


 

August 15, 2011

ABA Advocates Solutions to Overburdened Immigration Court System


In a recent Senate Judiciary Committee hearing, Senator Patrick Leahy expressed that the pace of justice in the immigration courts is too slow. Senator Leahy, chairman of the Senate Committee on the Judiciary, stated that he called the hearing to have a constructive discussion about how the immigration courts can be improved. Karen Grisez, chair of the American Bar Association Commission on Immigration, stated at the hearing that the “immigration system is in crisis, overburdened, and under-resourced.” Both Senator Leahy and Grisez believe that the courts do not operate fairly and efficiently. Grisez stated that underfunding the courts endangers the due process of immigrants who appear before them. In the past several years, the number of non-citizens removed from the United States has increased more than 450 percent from 69,680 in fiscal year 1996 to 393,289 in fiscal year 2009.


The Executive Office for Immigration Review has implemented a number of measures to improve the courts. These measures consist of expanding non-citizen access to legal counsel, increasing the use of prosecutorial discretion to reduce unnecessary litigation, allowing asylum officers to handle immediate claims raised as a defense to expedited removal, and removing the requirement that asylum seekers file their claim within one year of their arrival in the United States. Grisez pointed out that there are still further steps that can be taken to improve the system, as highlighted in the ABA’s 2010 report entitled Reforming the Immigration System: Proposals to Promote Independence, Fairness, Efficiency, and Professionalism in the Adjudication of Removal Cases.


Brian Josias, Cotsirilos, Tighe & Streicker, Chicago, IL


 

August 12, 2011

Proposition 8 Supporters Fail in Attempt to Have Ruling Vacated Due to Alleged Judicial Bias


On June 13, 2011, another hearing was held regarding the embattled Proposition 8 ban on same-sex marriage in California. Proposition 8 supporters are trying to have the ruling of former Chief Federal District Judge Vaughn Walker that struck down the ban vacated. They base their appeal on the grounds that Judge Walker, who after his retirement confirmed that he is in a long-term same-sex relationship, should have either removed himself from the case or disclosed his position on same-sex marriage in relation to his own relationship. Proposition 8 supporters allege that because he is in a same-sex relationship, Judge Walker would personally benefit from his own ruling.


Judge James Ware, who presided over the hearing, grilled the supporters' counsel by asking him why he assumed Judge Walker had any intention of getting married just because he was in a 10-year relationship. Judge Ware pointed out that if Judge Walker did not wish to marry, he would not be in the same position as the same-sex couples who brought the lawsuit. On June 14, 2011, Judge Ware issued his decision upholding Judge Walker’s ruling. Judge Ware determined that there was no evidence that suggested that Judge Walker was going to marry his long-term partner. Judge Ware concluded that the judge’s relationship did not require him to remove himself from the case nor was he obligated to disclose his relationship.


Brian Josias, Cotsirilos, Tighe & Streicker, Chicago, IL


 

August 9, 2011

Supreme Court: State Can Offer Undocumented Aliens Reduced Tuition


On June 6, 2011, the United States Supreme Court refused to review a California Supreme Court ruling that upheld a state law giving undocumented aliens living in California reduced in-state tuition rates at public universities. To be eligible for the tuition breaks, illegal immigrants are required to attend a California high school for a minimum of three years and to successfully graduate. In the case in question, Martinez v. Regents of the University of California (No. 10-1029), a group of out-of-state students had challenged the law on the grounds that it provided preferential treatment that violates federal law. Currently, several other states, including Illinois, Kansas, Maryland, Nebraska, New Mexico, New York, Oklahoma, Texas, Utah, Washington, and Wisconsin have similar laws that make undocumented aliens conditionally eligible for in-state tuition while a dozen other states have passed laws specifically banning the practice.


Brian Josias, Cotsirilos, Tighe & Streicker, Chicago, IL


 

August 9, 2011

Alabama Passes Nation's Toughest Illegal Immigration Law


On June 9, 2011, Alabama passed what is being called “the most restrictive law in the nation” against illegal immigration. The new law is modeled after Arizona’s controversial immigration law, which when passed in April of 2010, was regarded as the nation’s toughest bill on illegal immigration. Among its many provisions, the Alabama law requires that schools find out if students are in the country lawfully but does not prohibit them from attending school. However, several opponents of the law believe that this provision may stop immigrant parents from sending their children to school for fear of deportation or arrest. In addition, the law allows police to arrest anyone suspected of being an illegal immigrant if the person is stopped for some reason, requires all businesses to check the legal status of workers using a federal system called “E-Verify,” makes it a crime for a landlord to knowingly rent to an illegal immigrant or to transport a known illegal immigrant. According to the Pew Hispanic Center, there are an estimated 120,000 illegal immigrants in the state of Alabama, which is nearly a five-fold from a decade ago. Many of these immigrants are said to be working on farms, in chicken processing plants, and in construction. Advocacy groups have promised to challenge the new law, which takes effect on September 1, 2011. Those who support the new law, such as Republican Governor Robert Bentley, are confident the law will withstand any legal challenges. 


Brian Josias, Cotsirilos, Tighe & Streicker, Chicago, IL


 

August 3, 2011

New York's Marriage Equality Law Faces Its First Legal Challenges


On July 25, 2011, opponents of New York State's newly passed Marriage Equality Law filed a lawsuit alleging that the law had been rammed through the state Senate. In its effort to force the invalidation of the law, a non-profit group called New Yorkers for Constitutional Freedoms, argued that the new law violates New York's Open Meetings Law and the Senate's rules. Also in question are the procedures volunteer judges used to waive the 24-hour waiting period after the marriage licenses were issued in order to allow couples to marry immediately once they received their licenses. Domestic Relations Law §13-b allows an immediate wedding when an emergency arises, such as imminent death or that the public's interest would be furthered by a waiver of the waiting period. However, since over 400 such waivers were granted on July 24, 2011, opponents of the law allege that they were not all properly issued.



Joseph M. Hanna, Goldberg Segalla, Buffalo, NY


 

August 3, 2011

American Wealth: Whites Leaving Minorities in the Dust


A recent study shows that the wealth gap between White Americans and Hispanic and African Americans has drastically widened during the current recession. The study, performed by the Pew Research Center, found that from 2005 until 2009, inflation-adjusted median wealth fell 66 percent among Hispanic households and 53 percent among African American households. These numbers are significantly larger than the 16 percent decline among white households. The recession has left the median African American household with $5,677 in wealth and Hispanic households with $6,325, in contrast to white households which had a median of $113,149. The study showed that the housing crisis is largely to blame for these large discrepancies in wealth. Other studies have concluded that African Americans and Hispanics have a great number in equity because they were more likely to be sold a high-cost, sub-prime loan, regardless of their credit history. Those mortgages have the highest foreclosure rates.



Joseph M. Hanna, Goldberg Segalla, Buffalo, NY


 

July 25, 2011

Federal Courts Continue to See a Rise in Pro Se Filings


As previously reported in the World Justice Project study of the United States' justice system, despite law schools continuing to graduate record numbers of new attorneys, individuals still continue to have difficulty accessing and affording attorneys for civil matters. The latest confirmation of this ongoing problem is a report issued by the Administrative Office of United States Courts, highlighting the ongoing trend of more pro se cases being filed in federal courts. The Administrative Office’s report found that 72,900 pro se cases were filed in fiscal year 2010 —an increase from 71,543 pro se cases filed in 2009. Although the majority of pro se cases are filed by prison inmates challenging some aspect of their imprisonment, the number of pro se cases filed by non-prisoners continues to increase as well, climbing from 20,545 in fiscal year 2007 to 24,319 in fiscal year 2010.



Brian Josias, Cotsirilos, Tighe & Streicker, Chicago, IL


 

July 25, 2011

Fortieth Anniversary of "War on Drugs" Marked by Appeals to Revise Drug Policies


June 17, 2011, marked the 40th anniversary of the United States' war on drugs. The occasion was marked around the country by protests, meetings, and calls for evaluation and reform of the policies and practices of the 40-year effort to eliminate the use and trafficking of illegal drugs. Included in those efforts was a report by Law Enforcement Officers Against Prohibition (LEAP), an organization that includes current and former police chiefs of some of America's largest cities highlighting the negative consequences of the drug war and encouraging a revised view of drug abuse as a public health issue rather than a criminal problem and pursuing the radical course of legalizing drugs. The LEAP report was particularly critical of recent government action, which has seen funding for demand reduction (in the form of education and rehabilitation programs) decline while funding for traditional crime-fighting approaches has increased. The LEAP report also highlighted the devastating impact that America's war on drugs has had on Mexico as it continues to struggle to contain massive drug-trade related violence.



Brian Josias, Cotsirilos, Tighe & Streicker, Chicago, IL


 

July 25, 2011

AP Reports Record Number of Deportations


This week the Associated Press reports that according to Immigration and Customs Enforcement data, the United States deported nearly 393,000 people in fiscal year 2010, setting a new record for deportations. According to the article, the Obama administration has placed increased emphasis on targeting dangerous convicted criminals for deportation, and the administration claims that this increased emphasis is responsible for the increase in deportations. Immigration activists quoted in the article worry, however, that the increased deportations are not focused solely on violent offenders and other serious criminals and cite increases in deportations for drug-related offenses and traffic offenses as evidence that the deportations are part of a larger program aimed at removing a large group of non-citizens. Law enforcement sources quoted in the article, including the executive director of an organization of sheriffs and police chiefs, reported that the increased deportations are having their desired effect and are making communities safer by removing dangerous individuals.



Brian Josias, Cotsirilos, Tighe & Streicker, Chicago, IL


 

June 22, 2011

Supreme Court Issues Decision in Wal-Mart v. Dukes


On June 20, 2011, the United States Supreme Court handed down a widely anticipated decision in the Wal-Mart Stores Inc. v. Dukes case. The Supreme Court’s opinion reversed the decision of the district court to certify a class of over a million current and former female employees of Wal-Mart stores who alleged that Wal-Mart had discriminated against them in violation of Title VII. The plaintiffs alleged that Wal-Mart, the nation’s largest private employer, discriminated against all women employed by the company since December 26, 1998, by denying them equal pay or promotions. The district court certified the class under Federal Rules of Civil Procedure 23(a) and (b)(2) and Wal-Mart appealed. The Ninth Circuit affirmed the certification.


Importantly, the plaintiffs did not allege that Wal-Mart had an express corporate policy that discriminated against women. To the contrary, the plaintiffs claimed that Wal-Mart’s discriminatory behavior arose out of the discretion that local managers in each of Wal-Mart’s thousands of stores exercised concerning the matter of pay and promotions. As proof that all women employed by Wal-Mart suffered from discrimination, the plaintiffs relied on statistical evidence of pay and promotion disparities between men and women, anecdotal reports from Wal-Mart’s female employees, and expert testimony about Wal-Mart’s culture and human resources practices.


The Supreme Court reversed the district court’s certification on two grounds. One ground, the nature of the relief sought, was non-controversial, and all nine of the Court’s justices joined in that aspect of that decision. On the other issue, the question of commonality, however, the Court was divided. Five justices (Scalia, Roberts, Thomas, Alito, and Kennedy), in an opinion authored by Justice Scalia, held that there was insufficient “commonality” among the members of the class to sustain class certification. On this point, the majority found it especially telling that Wal-Mart’s official corporate policy prohibited sex discrimination, thereby making it very difficult for the plaintiffs to provide “significant proof” of discrimination” on a class-wide basis. The majority did not suggest that plaintiffs failed to prove the existence of actionable discrimination against specific female employees. Rather, the majority held that the discrimination allegedly suffered by a particular female Wal-Mart employee was insufficiently common with discrimination allegedly suffered by the other 1.5 million members of the putative class.


Four justices, in an opinion authored by Justice Ginsburg, dissented from the majority’s conclusion that the commonality element of plaintiffs claims was lacking. As an initial matter, the dissent opined that the issue of commonality was not properly before the Court. Moreover, the dissenting justices wrote that even if the issue were properly before the Court, the plaintiffs had alleged sufficient facts to establish commonality. Specifically, the dissent felt that the plaintiffs allegations of the discretion afforded to Wal-Mart’s individual store managers, when combined with the plaintiffs’ statistical evidence of actual pay and promotion differences, was sufficient to offer significant proof of common causes of unlawful discrimination and injuries arising from that discrimination. Justice Ginsburg also felt that the Court’s focus on dissimilarities between members of the class improperly conflated the commonality test with other aspects of the class action rule and imposed an inappropriately high bar for future class actions.



Brian Josias, Cotsirilos, Tighe & Streicker, Chicago, IL


 

June 13, 2011

United States Ranks Poorly in World Justice Project Rule of Law Index


A recently published study by the World Justice Project ranks the United States 21 out of 66 countries in terms of assuring access to legal counsel and even lower on the affordability of obtaining an attorney. The Rule of Law Index 2011 assessed countries’ performance across eight areas: limiting government powers; curbing corruption; protecting fundamental rights; ensuring order and security; government transparency; access to civil justice; and the effectiveness of criminal justice. Although the United States received good scores in many areas, the judicial system scored poorly in certain key respects because of substantial barriers to access for “disadvantaged groups” and because of a general perception that minorities are not on equal footing within the judicial and legal system when compared to other groups. In addition, the report also highlighted the difficulties the average American faces in affording an attorney in civil disputes and compared that unfavorably with other wealthy and developing nations. On the other hand, the United States scored high in the areas of civil liberties and certain limitations on government powers, such as its well-established system of checks and balances. Additional information about the study, and access to the study itself, may be found here.


Brian Josias, Cotsirilos, Tighe & Streicker, Chicago, IL


 

May 31, 2011

Diversity Programming Still a Priority for Nation's Law Firms


The Minority Corporate Counsel Association (MCCA) and the Association of Law firm Diversity Professionals (ALFDP) recently released the results of a new survey showing that law firms across America continue working to improve diversity. Although the survey found that some firms’ efforts were slowed by the economic downtown, many firms reported that their commitment to diversity was only mildly affected by the economic climate.  The survey sought input from 113 large and small law firms around the United States and found, among other things, that 82 percent of the surveyed firms employ a law firm diversity professional. The survey also reported that almost all of the respondent firms have diversity committees and demonstrates that the legal profession continues to recognize the benefits of a diverse workplace and is actively seeking to increase diversity. The complete survey is available here.


Brian Josias, Cotsirilos, Tighe & Streicker, Chicago, IL


 

April 28, 2011

Highlights from the Section of Litigation Annual Conference


Minority Trial Committee members and committee events were highly visible during the recent Section of Litigation Annual Conference at the beautiful Fontainebleau Resort in sunny Miami, Florida.


The committee sponsored two very well-received and informative programs at the conference:  “Updates in Foreign Corrupt Practices Act”; and “International Discovery in U.S. Courts: An Analysis of the Use of 28 U.S.C. § 1782.”  These two programs explored important new developments in international litigation.


The committee also hosted some great networking activities, including a Dutch Treat dinner at Tap Tap Haitian Restaurant and the committee’s Networking Lunch. At the Dutch Treat dinner, committee members networked, exchanged practice tips, and had a great time at Tap Tap.  During the conference itself, committee members from across the country joined together to have lunch and network. Participants shared ideas about business development and appreciated the presence of noted committee members Countess Price, assistant general counsel at Monsanto Company and Denise Zamore, associate general counsel at United Healthcare.


Finally, several committee members participated in some of the many educational seminars offered throughout the weekend. Committee cochair Julie Sneed moderated a panel on marketing strategies for women and minority litigators. The panel provided a blueprint for marketing efforts for associates and junior partners to use in building their practices. Committee cochair Anna Torres spoke on a panel discussing the top ten blunders to avoid in deposition. Anna and the panelists shared tips, lessons learned, and best practices for taking and defending depositions, including how to use depositions to fit the theory of your case and the purpose and goal of taking a particular deposition.


Brian Josias, Cotsirilos, Tighe & Streicker, Chicago, IL


 

April 28, 2011

The Leadership Council on Legal Diversity Fellowship Program


The Leadership Council on Legal Diversity—a group comprising leaders from 100 law firms and 65 corporations—is set to launch a new mentorship program to identify promising young attorneys and put them in a position to learn from law firm managing partners and general counsel from major companies.


The hope is that the group’s Fellows Program will help diversify the legal profession by improving leadership and networking skills among young attorneys who are committed to promoting diversity within their firms and companies.


Among those planning on teaching for portions of the program are Coca-Cola Co. general counsel Geoffrey Kelley and Macy's Inc. general counsel Dennis Broderick. The program will include three in-person conferences over the course of the year, with fellows also participating in virtual training sessions that cover such topics as the expectations that managing partners have for attorneys and how to pitch services to general counsel. Managing partners and general counsel will also talk to the fellows about personal experiences and setbacks, while fellows will be paired with a “coach” from the council to work on a project for the year.


A new group of 100 fellows will be selected each year.



—Denise Zamore, United Healthcare Group


 

April 28, 2011

Supreme Court Releases Important Decision in Arbitration Case


The Supreme Court, in a 5–3 ruling, reversed and remanded the Second Circuit Court of Appeal's ruling that an arbitral tribunal had not exceeded its powers in finding that an arbitration clause allowed for class arbitration. At issue was whether an arbitration provision in a standardized and specialized shipping contract allowed for class arbitration for a group of shipping customers, despite that the arbitration clause was silent as to class arbitration. The Court found that the arbitrators should have looked to controlling federal law rather than their own policy concerns, and that the law in this case did not allow for class arbitration, especially where the arbitration agreement was silent on the issue. Accordingly, the Court agreed with the Southern District of New York's ruling, which vacated the arbitral decision under Section 10(a)(4) of the Federal Arbitration Act. Stolt-Nielsen S.A., et al. v. Animalfeeds Int’l Corp., No. 08-1198.


—Charlie Whorton, Esq., Rivero Mestre LLP, Miami, FL


 

March 4, 2011

White House Issues Report on Status of Women in America


March is Women's History Month, and as part of the events honoring Women's History Month, on March 1 the White House released a detailed evaluation of the status of women in America, titled "Women in America: Indicators of Social and Economic Well-Being." This is the first in-depth, comprehensive report on women prepared by the federal government in over 50 years. The report focuses on five areas: people; families and income; education; employment; health; and crime and violence. Several federal agencies collaborated to compile the report, which was prepared to provide facts to a broad range of interested parties. Among the developments highlighted by the report are the fact that: (1) women now outpace men in college attendance; (2) despite gains in employment, women continue to earn about 75 percent of what their male counterparts earn; (3) women, especially women of color, are more likely to be in poverty than men; (4) while women live longer than men, they are more likely to face certain health problems; and (5) women are less likely than in the past to be the victims of certain violent crimes.



Brian Josias, Cotsirilos, Tighe & Streicker, Chicago, Illinois


 

February 14, 2011

"Crashworthiness Doctrine" Has Been Extended


A recent ruling by the Seventh Circuit Court of Appeals has extended the ‘crashworthiness doctrine’ to riding lawnmowers. Donald Malen v. MTD Products, Inc. and Home Depot U.S.A., Inc. 08-3855 (Nov 19th 2010), 7th Cir. In reversing and remanding the ruling of the district court, which granted summary judgment for the defendants, Judge Williams rejected the assertion that the operators own actions were the sole proximate cause of his injury. Rather, the court found that a jury could find that the mower was both defective and the proximate cause of Malen’s injury.


In 2004, Donald Malen slipped while getting off his reconditioned riding lawn mower and severely injured his foot on the rotating blade, having raised the cutting deck and removed his foot from the pedal that engaged the blade. He and his wife sued the manufacturer and seller, claiming that the mower was defective in design and construction. The district court granted summary judgment for the defendants, because undisputed evidence established that Malen’s own actions were the sole proximate cause of his injury.


The mower was designed with a safety interlock system. One component of that system was an operator presence control (OPC), a device that kills the engine if the operator rises from the seat without first disengaging the cutting blade and setting the parking brake. A second component was the “no cut in reverse” switch (NCR), which kills the engine if the operator shifts into reverse without first disengaging the blade. It is undisputed that neither the OPC nor the NCR functioned when the accident occurred.


The Malens contended that the lawnmower manufactured by MTD Products and sold by Home Depot was negligently manufactured and unreasonably dangerous because its OPC was not connected and thus inoperable. They also contended that the mower was negligently designed because MTD Products had shunned a “fail safe” system that would have made the cutting blade unusable even without the OPC connected. According to the district court, since Malen was at fault, it was unnecessary to decide whether the mower was defective.


The court, made clear that manufacturers and sellers are strictly liable for injuries caused by unreasonably dangerous products unless an unforeseen alteration by a third party introduced the unsafe condition. The court found that the plaintiffs had adduced more than sufficient evidence to show Malen’s mower was unreasonably dangerous and that the mower was further defective in design because its OPC was not “fail safe.” On both questions, there was, according to Judge Williams, sufficient evidence for a jury to find for the plaintiffs.


Even if the defendants are correct that Malen was himself negligent and that it mattered, accidents are natural, foreseeable consequences of using certain products. This principle is known as the "crashworthiness doctrine" (or the “enhanced injury” or “second collision” doctrine), which Illinois has adopted. Applicable to strict liability and negligence, the premise underlying the crashworthiness doctrine is that some products, although not made for certain purposes—such as accidents—should nevertheless be reasonably designed to minimize the injury-producing effect of an accident. This includes a failure to provide the consumer with reasonable protection under the circumstances surrounding a particular accident. A reasonably foreseeable intervening act, such as an accident, does not relieve the defendant of liability as defendant was required to foresee certain accidents in the use of the mower.


Judge Williams noted that the Restatement (Third) of Torts recognizes that the crashworthiness doctrine applies outside the automobile context, and other jurisdictions have variously applied it to motorcycles, airplanes, boat engines, fork lifts, tractors, and indeed mowers. In extending the doctrine to mowers in this jurisdiction, she explained accidents on riding mowers are foreseeable just as accidents on roadways are, and while Malen may not have been a model user, such consideration was not a concern of the crashworthiness doctrine. Therefore Malen’s disregard of an explicit warning was not dispositive to that doctrine, as adopted in Illinois. In reversing and remanding, the court made clear a jury could still conclude that the mower was unreasonably dangerous and that the absence of functional safety mechanisms was the proximate cause of Malen’s injury.


Karen Munoz, Dolan Law Offices, P.C., Chicago, IL


 

February 10, 2011

Supreme Court Hears Argument on Arizona Immigration Law Employer Sanctions Case


On December 8, 2010, the Supreme Court heard oral argument in the matter of Chamber of Commerce v. Whiting (09-115), a case centered on the hot-button topic of Arizona's immigration laws. In the case, businesses and civil liberties groups (backed by the Obama administration) are challenging an Arizona law signed in 2007 that threatens to revoke the licenses of businesses that knowingly hire undocumented workers. The law has only been used three times in the past three years and was previously upheld by the Ninth Circuit Court of Appeals in San Francisco. While immigration law is generally a focus of the federal government, Arizona has argued that the state has been forced to act due to the federal government's failure to meaningful enforce immigration law. A decision is expected by summer 2011.


Joseph Hanna, Goldberg and Segalla, Buffalo, New York



 

February 10, 2011

New Census Data Reveals Substantial Progress in Desegregation


Racial segregation levels in the United States have dropped to some of the lowest levels in more than a century, according to census numbers released on December 14, 2010. The Census Bureau's American Community Survey (ACS) is based on a survey of over 10 million Americans and is the largest demographic survey conducted in the country. Neighborhood segregation levels dropped in 70 percent of the 100 largest U.S. metro areas. Several Southern and Western cities showed a noticeable trend toward integration in the past five years, while parts of the Northeast and Midwest remain the most segregated. These changing numbers will play heavily into the upcoming congressional redistricting battles.


Joseph Hanna, Goldberg and Segalla, Buffalo, New York



 

February 10, 2011

Fourth Amendment Protects Privacy in Email Stored with Internet Service Provider


In United States v. Warshak, al. Case Nos. 08-3997/4085/4087/4212/4429; 09-3176 (Dec. 14, 2010), a case with broad implications for an increasingly digital world, the Sixth Circuit Court of Appeals held that the Fourth Amendment applies to emails stored by individuals on the servers of Internet service providers and that government agents may not search email contents without a valid warrant. This case creates an important precedent in an area of law that had previously been somewhat unsettled and holds that the provisions of the Stored Communications Act authorizing government agents to subpoena emails from Internet service providers are unconstitutional. The Sixth Circuit determined that email maintained on the servers of Internet services providers is akin to regular mail held by the post office or phone calls routed through the phone company and is not similar to records maintained by a bank (which may be searched without a warrant). Importantly, pursuant to the Supreme Court’s recent decision in Pearson v. Callahan, 129 S. Ct. 808 (2009), the Warshak court declined to apply the exclusionary rule to the emails, finding that the government agents had relied on the Stored Communications Act in good faith, thus avoiding the exclusionary remedy.


Brian Josias, Cotsirilos, Tighe & Streicker, Chicago, Illinois.


 

February 10, 2011

Even with Repeal Bill Signed, Legal Battles over "Don't Ask, Don't Tell" Continue


While President Obama signed the "Don't Ask, Don't Tell" Repeal Bill into law on December 22, 2010, the legal challenges surrounding the policy are not yet over. The Justice Department is now seeking a stay of the long-standing federal lawsuit filed over the policy by Log Cabin Republicans (LCRs). The Justice Department argues that the repeal bill establishes a process for ending the DADT policy. However, under the bill, the repeal will not go into effect until 60 days after the certification process is complete. LCRs argue that until the repeal takes effect, service members are still in danger of falling victim to the policy and will continue their appeal to have the stay current blocking a worldwide injunction against enforcement of the DADT policy lifted.


Joseph Hanna, Goldberg and Segalla, Buffalo, New York



 

November 3, 2010

Native American Farmers Celebrate $760 Million Settlement


Native American farmers and ranchers and the U.S. Department of Agriculture (USDA) announced an historic agreement to settle a nationwide class action lawsuit (Keepseagle v. Vilsack) that alleged discrimination in USDA’s farm loan program dating back to 1981.


The agreement brings to an end 11 years of litigation, and marks the beginning of what is expected to be a new partnership between USDA and the Native American community.


Under the agreement, which was unveiled in the U.S. District Court in Washington, D.C. before Judge Emmet Sullivan, USDA will pay $680 million in damages to thousands of Native American farmers and ranchers and forgive up to $80 million worth of outstanding farm loan debt.


The settlement also provides for a host of initiatives that will improve USDA’s farm loan services for Native Americans.



 

November 1, 2010

Judge Orders Firm to Add Diversity to Case


A federal judge is taking steps to promote diversity in his Manhattan courtroom. Judge Harold Baer of the United States District Court for the Southern District of New York recently issued an order in a class action suit (In re: Gildan Activewear Inc. Securities Litigation; 08-cv-5048) directing the two co-lead firms serving as plaintiffs' counsel to assign at least one woman and one minority to the case in order to reflect the diversity of class members they are representing.



 

Call for Diversity in the Profession


Nearly 100 Chief Legal Officers / General Counsel have signed on to Sara Lee General Counsel Roderick Palmore’s “Call to Action: Diversity in the Legal Profession,” which states:


As Chief Legal Officers, we hereby reaffirm our commitment to diversity in the legal profession. Our action is based on the need to enhance opportunity in the legal profession and our recognition that the legal and business interests of our clients require legal representation that reflects the diversity of our employees, customers and the communities where we do business. In furtherance of this renewed commitment, this is intended to be a Call to Action for the profession generally, in particular for our law departments, and for the law firms with which our companies do business.


In an effort to realize a truly diverse profession and to promote diversity in law firms, we commit to taking action consistent with the referenced Call to Action. To that end, we pledge that we will make decisions regarding which law firms represent our companies based in significant part on the diversity performance of the firms. We intend to look for opportunities for firms we regularly use which positively distinguish themselves in this area. We further intend to end or limit our relationships with firms whose performance consistently evidences a lack of meaningful interest in being diverse.