Wednesday, February 15, 2017

Unwanted commercial faxes can violate the law

If you own a fax machine, you've received junk faxes. Did you know you can sue over unwanted junk faxes?

The case is Physicians Healthsource, Inc. v. Boehringer Pharmaceuticals, decided on February 3. The Junk Fax Protection Act of 2005 makes it illegal for anyone in the United States to send an unsolicited fax advertisement unless the fax has an opt-out notice. The penalty is $500 for each unwanted fax, with treble damages. In this class action, a pharmaceutical company sent out faxes for a female sexual enhancement drug that the FDA had not yet approved. The fax promoted a free "dinner meeting" and discussion about the product.

As it happened, since the FDA had not yet approved this drug, the pharmaceutical company was forbidden to promote it. The district court rejected the case because the fax was not "a pretext for pitching a ... product or service" and that "the hypothetical future economic benefit that the ... defendants might receive someday does not transform the fax into an advertisement." This is interesting reasoning. The company was forbidden to promote the product, since the FDA had not yet approved it, so the unwanted fax cannot economically benefit the company.

The Second Circuit is not buying it. The statute defines offending advertisements as those promoting "the commercial availability or quality of the firm's property, goods, or services." At this stage of the case (it was dismissed for failure to state a claim under Rule 12), "there is a plausible conclusion that the fax had the commercial purpose of promoting those products or services. Businesses are always eager to promote their wares and usually do not fund presentations for no business purpose. The defendant can rebut such an inference by showing that it did not or would not advertise its products or services at the seminar, but only after discovery." So long as the unsolicited fax has a commercial nexus to a firm's business, it will violate the statute unless the recipient can opt-out of its receipt. Judge Winter gives us an example of how the law works:

Two fanciful examples illustrate the distinction. If a complaint alleged that the Handy Widget Company funded a professorship at a local law school in the name of its deceased founder and faxed invitations on its letterhead to an inaugural lecture entitled “The Relevance of Greek Philosophers to Deconstructionism,” the complaint would not state a claim under the [Telephone Consumer Protection Act of 1991] because the Handy Widget Company is not in the business of philosophical musings. In contrast, if the Handy Widget Company faxed invitations to a free seminar on increasing widgets’ usefulness and productivity, a claim under the TCPA would be validly alleged. Of course, the Handy Widget Company could rebut at the summary judgment stage with evidence showing that it did not feature its products or services at the seminar.

Tuesday, February 14, 2017

Prisoner wins due process solitary confinement appeal

This inmate has been in the slammer for a long time. He sues the Department of Corrections over his 22 straight years of solitary confinement. The argument is that the state has denied him due process in failing to properly review his eligibility to return to general population. The Court of Appeals says a jury must decide if the state violated his due process rights.

The case is Proctor v. LeClaire, decided on January 24. The Court of Appeals (Wesley, Katzmann and Hall) recounts Proctor's prison record, which was positively awful in the early years but got a little better over time. You don't even want to know what this guy was up to in his early days in the 1980s and early 1990s. While his behavior "has remained positive" in recent years, there have been some isolated problems. The state keeps him solitary confinement, however, and it must follow certain procedures along the way if it wants to keep him htere. That process includes a report from the Facility Committee (at the jail) from the Central Office Committee in Albany, before the deputy commissioner makes the final decision.

The Second Circuit sets out some guidelines for cases like this. First, "the reviewing prison officials must actually evaluate whether the inmate's continued Ad Seg confinement is justified," and it cannot just go through the motions or phone it in. Second, reviewing officials must determine whether the justification for Ad Seg exists at the time of review or will exist in the future. Third, they must maintain institutional safety and security as their guiding principles in reviewing these cases. The extensive discussion guiding this process makes this case the leading Second Circuit opinion on the due process rights of prisoners who are locked away in solitary confinement.

The Court of Appeals says plaintiff may have a case. It appears the periodic review process results in a pre-ordained result: plaintiff remains in solitary. State witnesses said in deposition that under standard practice, inmates "never" get out of Ad Seg. As the Second Circuit sees it, the process involves hollow formalities, as one official says the prisoner's criminal history can support continued solitary confinement. As that would obviate the need to conduct periodic reviews, there is no real due process, which requires fair consideration of the prisoner's right to possibly return to general population, where he can make friends and walk among the living. Other witnesses suggested that no real standards guide these decisions. This excerpt from the decision sums it up:


One comes away from these depositions with nagging skepticism about whether there is anything Proctor could ever do to be released from Ad Seg. And indeed when Proctor’s counsel asked DeLutis that very question, DeLutis made clear that the answer is no, stating that there is nothing that Proctor can do that would convince DOCCS officials to release him. DeLutis affirmed that he disregards evidence of Proctor’s recent behavior when conducting section 301.4(d) reviews because that information has no effect given Proctor’s two‐decade‐old escape. officials are not just moving the goalposts on Ad Seg inmates like Proctor—there are no goalposts at all.

While the Court points out that "some of the evidence could lead a reasonable jury to conclude ... that DOCCS officials have analyzed Proctor's good behavior in their [periodic] reviews and found it to be outweighed by other facts, specifically Proctor's multiple escape attempts and violent acts toward other prisoners," the state can still win the case at trial. But there will in fact be a trial.

Friday, February 10, 2017

FMLA leave is required if sick grandparent raised you as a child

There are some cases where you think to yourself that, morally, one party must lose the case. This is probably one of them. The employer denied FMLA leave to an employee who needed to miss work to care for his seriously ill grandfather who had been his father figure. The district court rejected that claim, but the Court of Appeals brings it back.

The case is Coutard v.  Municipal Credit Union, decided on February 9. The Family and Medical Leave Act grants certain employees up to 12 weeks of unpaid leave to care for certain ill family members, including parents and even grandparents who stood in as in loco parentis. As the Court of Appeals notes,

The very reason that Congress in the FMLA defined "parent" and "son or daughter" to include, respectively, "an individual who stood in loco parentis to an employee when the employee" was "under 18 years of age," and "a child of a person standing in loco parentis," was to "reflect the reality that many children in the United States today do not live in traditional 'nuclear' families with their biological father and mother," and are increasingly raised by others including "their grandparents."
When plaintiff sought FMLA leave, he said it was for his grandfather, who was seriously ill. The employer argues that plaintiff was not entitled this leave because he did not tell management that his grandfather stood in as in loco parentis after his father died when plaintiff was a kid. The Court of Appeals runs through the many regulations governing the FMLA before deciding that this case has to go to trial. Judge Kearse reasons:

the obligation of an employee to give notice of his need for FMLA leave is not the obligation, imposed by the district court on Coutard, to provide the employer with all of the necessary details to permit a definitive determination of the FMLA's applicability at or before the time of the request. Rather, in the absence of a request for additional information, an employee has provided sufficient notice to his employer if that notice indicates reasonably that the FMLA may apply.
In other words, if it thinks the FMLA may apply, the employer has to follow up with the employee to see if the employee in a case like this (involving a grandfather) is covered under the FMLA. Defendant did not so inquire about plaintiff's relationship with his grandfather, so it was not plaintiff's fault that he did not provide that information. "We conclude that the district court erred in ruling that Coutard was required, at the time of his request, to provide MCU with all of the information it needed to determine with certainty that his requested leave was within the FMLA."

Thursday, February 9, 2017

Younger than yesterday

The federal courts have to hear and decide cases over which they have jurisdiction, whether they like it or not. But there are exceptions to that rule, usually when there are countervailing state interests at stake. Even then, the federal court cannot just walk away from the case. It has to abstain from deciding it until the state courts can do their thing. One of the abstention doctrines is Younger abstention.

The case is Jones v. County of Westchester, a summary order decided on February 7. I briefed the appeal. Younger abstention is named after a Supreme Court case from many moons ago. Here is how Younger abstention works. If your lawsuit in federal court will interfere with on-going proceedings in state court or in the state administrative system, the federal court will hold off on resolving your case until the state tribunal can decide the issues first. By way of example, more than a decade ago, I represented a guy who was cited by his town for posting political signs on his property without a permit. While his case was pending in town court, I filed a federal lawsuit to enjoin enforcement of the town law, which I thought was unconstitutional. The federal judge said our case would interfere with the proceedings in town court (since a finding that the law was unconstitutional would affect the town court case), so she stayed the federal action until the town court proceeding was resolved.

In this case, plaintiff is a minor who is suing the Westchester County social services department over her poor treatment in foster care. Several times a year, the family court has permanency hearings to see how the child is doing. The county moved to stay the federal case under the Younger abstention doctrine on the theory that the girl's issues are being addressed in the permanency hearings. The trial court agreed, and the federal case was stayed.

The Court of Appeals (Hall, Droney and Nathan [D.J.]) reverses and puts the case back on the district court's docket. The case should not have been stayed because the minor plaintiff is not trying to enjoin any state proceedings. She is only suing for damages against the county for her poor treatment and care while in county custody. Her permanency hearings and the federal case can proceed simultaneously without one proceeding affecting the other. While the Supreme Court has not addressed this issue, the Second Circuit has long held that only federal claims for injunctive relief are candidates for Younger abstention, since the federal injunction will most likely actively interfere with the state proceeding. There is no such risk when the federal proceeding only seeks damages for past conduct that might have been the subject of prior state proceedings.

This appeal raised other issues besides Younger abstention. The parties also briefed whether the plaintiff stated a claim under the Constitution for her ill-treatment. This further briefing happened because the Court of Appeals can rule on issues other than those addressed by the district court. The Second Circuit noted this debate but declined to address it affirmatively, noting that it is not the "Oxford Union." Good one.

Wednesday, February 8, 2017

Some guidance on the interactive process under the Americans with Disabilities Act

The Americans with Disabilities Act requires employers to work interactively with disabled employees to see if a reasonable accommodation exists that will allow the worker to keep his job despite his disability. We call this the "interactive process." What if the employer does not engage in the interactive process? Is that by itself a basis to hold the employer liable?

The case is Sheng v. M&T Bank, decided on February 2. I wrote about this case in the context of the admissibility of offers to settle the case under Federal Rule of Evidence 408. The Court of Appeals (Winter, Kearse and Cabranes) granted plaintiff a new trial because the trial court had improperly allowed the jury to know that plaintiff had rejected an offer to return to work under certain conditions. That was good for plaintiff. But plaintiff also argued on appeal that the trial court got it wrong in refusing to charge the jury that the employer's failure to engage in the interactive process by itself is enough for plaintiff to win the case. The Court of Appeals disagrees.

The Court of Appeals had previously held in McBride v. BIC Consumer Products, 583 F.3d 92 (2d Cir. 2009), that "failure to engage in an interactive process does not form the basis of an ADA claim in the absence of evidence that accommodation was possible." In other words, if management blows of the interactive process and there was no way to reasonably accommodate the plaintiff in any event, then it's a harmless error. No harm, no foul. But the Second Circuit this time around clarifies that "an employer's failure to engage in a good faith interactive process can be introduced as evidence tending to show disability discrimination and that the employer has refused to make a reasonable accommodation." 

Tuesday, February 7, 2017

Equal Pay Act claim fails

We don't see too many Equal Pay Act claims in the Second Circuit. This case raises the issue of when plaintiff is able to compare herself to co-workers who earned more money. We see why these cases are so hard to win.

The case is Chiaramonte v. The Animal Medical Center, a summary order issued on January 26. Equal pay for equal work is a laudable concept, but it's hard to prove in court. Here is the legal standard:

“[T]o prove a violation of the EPA, a plaintiff must demonstrate that (1) the employer pays different wages to employees of the opposite sex; (2) the employees perform equal work on jobs requiring equal skill, effort, and responsibility; and (3) the jobs are performed under similar working conditions.” Critical to an EPA claim is the equal work inquiry, which requires evidence “that the jobs compared are ‘substantially equal.’” “Substantially equal” does not mean “identical.” “To satisfy this standard, a plaintiff must establish that the jobs compared entail common duties or content, and do not simply overlap in titles or classifications.” “[A] successful EPA claim depends on the comparison of actual job content; broad generalizations drawn from job titles, classifications, or divisions, and conclusory assertions of sex discrimination, cannot suffice.”
The Second Circuit (Livingston, Hall and Droney) says plaintiff cannot make out an EPA claim. While she says her better-paid male colleagues performed substantially similar work and had similar credentials and responsibilities, the Court of Appeals says that although "her position as Director of The President's Council and Rehabilitation Center shared some common characteristics,such as administrative responsibilities, with the positions of her male co-workers," there were "material differences in the congruity of job content."

Are any two jobs alike? Maybe so in some job contexts. The Court of Appeals finds that plaintiff took on different duties from her colleagues. Here is the reasoning:

Chiraramonte’s responsibilities as the Director of the President’s Council entailed primarily public-relations-type duties as well as primary care. ... Unlike the alleged comparators, Chiaramonte was not responsible for supervising interns or other veterinarians, and she contributed little if any scholarly research. Moreover, Chiaramonte carried a low patient load, seeing only one to three patients a day. Although she did perform some rehabilitation treatments at the Rehabilitation Center, she could go months without treating patients. Some of her better-paid male colleagues, on the other hand, treated up to 15 patients a day.

As aptly noted by the district court, Chiaramonte’s efforts to draw comparisons between her positions and those of her five co-workers “miss the mark because they essentially require the [c]ourt to embrace the principle that the work of all veterinarians is equivalent, thereby ignoring distinctions among the different specialties in veterinarian medicine.” That basis for demonstrating equal work has been expressly foreclosed by this Court.

Monday, February 6, 2017

Offers to settle the case cannot go before the jury

In this disability discrimination case, the plaintiff was unable to work because of complications with her pregnancy. Her employer, M&T Bank, wanted her to fly from the west coast to its Buffalo headquarters, but she was unable to do so on doctor's orders. Management denied her request to telecommute, and she was fired. The case went to trial, and the plaintiff lost. She gets a new trial, in part, because the trial court blew it on an evidentiary issue.

The case is Sheng v. M&T Bank Corporation, decided on February 2. (The case was argued in October 2015). After plaintiff told the bank that health reasons prevented her from flying, she retained a lawyer who tried to work things out with management. Counsel wrote the bank a letter that offered it a chance to "avoid a costly legal action that will result in substantial liability and adverse publicity for the Company and its executives." He wanted $200,000 for plaintiff. When the lawyers spoke on the phone, they agreed that Rule 408 of the Federal Rules of Evidence would govern their conversation. That rule says that offers of settlement are inadmissible at trial. The bank's lawyer suggested that plaintiff return to work and work remotely from Los Angeles for the remainder of her pregnancy. The bank's lawyer did not make an explicit statement that the reinstatement offer was conditioned upon the execution of a release of plaintiff's claims for monetary damages. The offer was rejected.

At trial, the bank wanted the bank's reinstatement offer admitted at trial to show that plaintiff had not mitigated her damages. The judge allowed it to go before the jury. This was error. In Pierce v. F.R. Tripler & Co., 955 F.2d 820 (2d Cir. 1992), the Court of Appeals said that "where a party is represented by counsel, threatens litigation and has initiated the first administrative steps in that litigation, any offer made between attorneys will be presumed to be an offer within the scope of Rule 408." That presumption can only be rebutted if "the party seeking admission of the offer ... demonstrates convincingly that the offer was not an attempt to compromise the claim."  Pierce is still good law, the Court of Appeals (Winter, Kearse and Cabranes) holds, which means plaintiff gets a new trial.

To the uninitiated, offers to settle would constitute great evidence that the person making the offer is throwing in the town and admits he's got a bad case. But the courts do not want these offers going before the jury because that would prevent anyone from discussing settlement. The court system would grind to a halt without settlement. There are too many lawsuits. Everyone is suing everybody else. Without settlements, the courthouse would be as high as the Empire State Building.