Class action defendants sanctioned $35,000 for litigation abuses

A class action in the Southern District of New York alleges that a private mental health facility in Rockland County physically and mentally abused patients in violation of New York law. Judge Robinson certified the case as a class action, which means that potential class plaintiffs have the option to opt out of the class. That's when things got ugly.

The case is Romano v. SLS Residential, Inc., 07 Civ. 2034 (SCR), issued on September 23. Judge Robinson found that SLS Residential went out of its way to contact class members to falsely advise that their mental health records would be made public if they did not opt out of the class. A therapist employed by defendants contacted some of the class plaintiffs to personally advise them of these adverse consequences. Of course, no one wants their mental health records publicized, so all hell broke loose, as plaintiffs began calling their lawyer and the court to complain.

In finding that defendant engaged in sanctionable conduct, the district court held that defendants schemed to mislead class plaintiffs to persuade them to quit the lawsuit and also to lose confidence in their attorney. Making matters worse, defendants used plaintiffs' therapist to impart this false information, taking advantage of the trust that these plaintiffs had in their therapist. The court further noted that defendants took advantage of vulnerable mental health patients in trying to minimize liability in this action.

Judge Robinson entered the following relief: all opt-out notices are void, and corrective notices will be sent to the class plaintiffs. Defendants and their agents cannot have any more contact with the plaintiffs without court order. And they must pay $35,000 in sanctions plus attorneys' fees.

ACLU wins Freedom of Information battle over war records

The American Civil Liberties Union sued the Department of Defense which would not turn over photographs of the abusive treatment of prisoners in Iraq and Afghanistan, along with those "rendered" to other countries that use torture. The Second Circuit has agreed with the ACLU that these photographs are not exempt from the Freedom of Information Act.

The case is ACLU v. Department of Defense, decided on September 22. The Iraq war has been fertile ground for litigation. This time around, it concerns controversial pictures which raised outrage when American soldiers were photographed abusing Iraqi prisoners. But, since we're at war, the government raises the defense that releasing these photographs would endanger soldiers and civilians in Iraq and Afghanistan. True, the Freedom of Information Law contains an exemption, § 552(b)(7)(F) for law enforcement records that could reasonably be expected to endanger “any individual.” The government is using that defense here, as well as the argument that FOIL protects the privacy of the prisoners depicted in the photographs. The Court of Appeals is not buying it.

The Court has to weigh the open-government philosophy of FOIL with the exceptions outlined in that statute. The notes that "Exemption 7(F) justifies withholding any law enforcement records that 'could reasonably be expected to endanger the life or physical safety of any individual.'” What does "any individual" mean under the statute? Does it include soldiers and civilians? Can it include a large class of people that cannot be identified, or specific individuals? The government argues for the "large class of people" interpretation, but the Second Circuit disagrees, reasoning:

The plain language of the phrase “endanger the life or physical safety of any individual” connotes a degree of specificity above and beyond that conveyed by alternative phrases such as “endanger life or physical safety.” It is true that the statute does not read “any named individual,” and we thus understand it to include individuals identified in some way other than by name -- such as, for example, being identified as family members or coworkers of a named individual, or some similarly small and specific group. This does not, however, mean that the “individual” contemplated by exemption 7(F) need not be identified at all, or may be identified only as a member of a vast population. To the contrary, the legislature’s choice to condition the exemption’s availability on danger to an individual, rather than danger in general, indicates a requirement that the subject of the danger be identified with at least reasonable specificity.

Accordingly, the Court holds that to justify withholding documents under this exemption, the government must identify at least one individual with reasonable specificity and establish that disclosure of the documents could reasonably be expected to endanger that individual." The government does not meet that burden in this case.

Circuit clarifies when building renovations must be ADA compliant

Disabled people sued a Montauk resort complex because it was not wheelchair accessible. Easy case, right? Not really. The Americans with Disabilities Act contains specific and complicated rules governing when these defendants are liable for disability discrimination. The Court of Appeals has untangled these rules in a lengthy opinion, Roberts v. Royal Atlantic Corp., issued on September 18.

The issue concerns when a property owner has to make the building accessible for disabled people once they make building alterations that could affect its usability. When these alterations are made, the altered portions of the building must be accessible, to the maximum extent feasible. But the property owner has a defense: the accommodations do not have to be disproportionate to the overall alterations in terms of cost and scope.

In this case, the district court dismissed the complaint after a hearing. On appeal, the Court of Appeals rules in favor of the plaintiffs. This case is unique in that, over the course of 35 pages, the Court cites very few precedents (about three or four), relying solely on the statute and regulations. That's rare for any Court of Appeals. Relying strictly on the written rules governing these disputes, the Second Circuit (Sack, Jacobs and Pooler) makes the following rulings:

First, under the law, a building is "altered" requiring the property owner to accommodate the disabled when the alterations affect the overall usability of the building. Normal maintenance doesn't count. More extensive remodeling and renovations do count. "The greater the change made by a modification to a facility or portion of the facility, the closer it is, in effect, to new construction," the Second Circuit says.

Accordingly, the Court tells us, considerations for determining whether the modifications in this case are alterations under the ADA can (but need not) include factors such as:

1. The overall cost of the modification relative to the size (physical and financial) of the facility or relevant part thereof.

2. The scope of the modification (including what portion of the facility or relevant part thereof was modified).

3. The reason for the modification (including whether the goal is maintenance or improvement, and whether it is to change the purpose or function of the facility).

4. Whether the modification affects only the facility's surfaces or also structural attachments and fixtures that are part of the realty.

Under the rules, facilities must be made accessible even if the costs of doing so are high. The property owner can get around this if handicap accessibility is "virtually impossible." In other words, "the proportionality requirement limits the extent to which supporting areas must be made accessible," the Court says.

In this case, renovations to the resort in 2000-01 were significant, requiring disabilities accommodations. Bathrooms and kitchens were remodeled, rooms were gutted and floors were replaced. Most of the rooms were so renovated, and the property owner desired to renovate rather than merely maintain the place. As defendants changed the usability of the units, they had to make them accessible for people with disabilities. On remand, the defendants have to show that they made the necessary accommodations to the maximum extent feasible. Defendants can win only if the accommodations are "virtually impossible." Excessive cost is no defense to a case like this.

As for the parking area, the issue is whether the renovations were significant enough to trigger ADA accessibility requirements. Even if the lots were not "altered" under the law, they still have to be accessible if they are within the "path of travel" to the rooms, as the law defines that phrase. They are. The parking areas connect to the public street. But the parking areas do not have to be made accessible as a whole, as the path of travel for the person traveling by car begins at the parking space.

Waterbury cannot be sued for Mayor's illegal sex acts

The Mayor of the City of Waterbury, Connecticut, forced minors to have sex in his office after he threatened to send their mother to jail. After Mayor Giordano was convicted in Federal court for these crimes, his victims sued the City for civil rights violations under 42 USC 1983. To the uninitiated, this case would be a slam dunk. But nothing is that simple.

The case is Doe v. Giordano, decided on September 11. You cannot simply sue the City when one of its employees violates your civil rights. We call this Monell liability. The employee has to be a policymaker, a legal term of art. Even a single act by a policymaker is binding on the municipality. Generally speaking, the Mayor is a policymaker. In fact, he is the chief operating officer of the municipality. Plaintiffs win, right? Wrong.

"Policymaker" carries a complicated definition. While Giordano was responsible for law enforcement and other matters relevant to the City, the plaintiffs have to show that he is an official policymaker with respect to the area of policy that encompassed his illegal acts. So, when government employees sue the City after the Mayor fires them for whistleblowing, the City is liable because the Mayor is usually the policymaker when it comes to personnel and he makes those decisions in his official capacity. That scenario happens all the time, but this case is quite different. The Mayor was acting in his personal capacity when he had unlawful sex in his office. Rather than furthering the City's business, the Mayor was advancing a purely personal agenda. There is no Monell liability here, and the plaintiffs cannot recover damages from the City.

Court dismisses more Borat claims

The Borat movie was good for a few laughs, but it also spurred many lawsuits. Bystanders who were humiliated in the fake documentary when its star, Sacha Cohen, pretended to be a foreigner studying American culture have mostly lost their cases for invasion of privacy and other torts. The latest round of cases, also alleging humiliation, have also been decided in Borat's favor.

On September 3, Judge Preska of the Southern District of New York dismissed three cases filed by seven people. The decision can be found here. Judge Preska does not seem to be a fan of the movie, which became a big hit as Borat/Cohen made an ass of himself in trying to make fun of American culture using unsuspecting civilians as props for his juvenile antics. The court wrote in an earlier Borat decision "The movie employs as its chief medium a brand of humor that appeals to the most childish and vulgar in its viewers." Having seen it, I can say that Judge Preska accurately summarizes the movie.

Not everyone thought the movie was funny. The plaintiffs certainly did not. One plaintiff, a driving instructor, was shocked when Borat began driving like a lunatic "while engaging in conversations with strangers and making derogatory and offensive remarks about sexual intercourse, Jews, women and African-Americans." An etiquette trainer was horrified when Borat humiliated them and their friends at a dinner party by insulting other guests in a locker-room kind of way. The most disgusting scenes were not described in the court ruling, I can assure you.

But the plaintiffs have a problem in suing Borat/Cohen for fraud and humiliation: they signed a release that says they can't sue him. Borat had a good lawyer advise him that you can't use people this way without having them sign a waiver. The driving instructor signed it without reading the contract because he did not bring his reading glasses. No matter. Judge Preska says the agreements are clear in warning the bystanders that they will appear in a "documentary-style film" intended "to reach a young adult audience" in a humerous way. While the plaintiffs' lawyers tried to argue that the contract was misleading, Judge Preska disagreed: "There can be no reasonable debate . . . that Borat is a film 'displaying the characteristics of a film that provides a 'factual record or report,'" albeit one of a fictional character's journey across the country. Since the fictional story is told in the style of a real one, there is nothing misleading about the contract.

The plaintiffs also argued that the agreement was a fraud because it did not alert them to the true nature of the movie. This claim dies, also. The plaintiffs signed away their right to challenge any promises about the nature of the film or the true identity of the participants in the movie.

The success of Borat suggests that others will try to replicate its success with gotcha movies of their own. Cases like this will provide guidance for lawyers hoping to prevent the movie-makers from getting sued. Judge Preska does us a favor in summarizing the terms of the agreements. There is no greater peace of mind then using the very language in your own contracts for which the courts have already given their stamp of approval.

How do you count the people in Congressional districts?

A savvy registered voter in New York brought a lawsuit challenging the constitutionality of the congressional districts in this state. His argument is that while the constitution requires that each congressional district have the same number of people, the districts are illegal because they do not have have the same number of people eligible to vote.

The case is Kalson v. Paterson, decided on September 9. As the Court of Appeals notes, "congressional districts within a state must have the same population." That way, the congressman in Manhattan wields the same power as the congresswoman in Buffalo (at least in theory, anyway). But, Judge Calabresi points out,

The Supreme Court . . . has never precisely defined what is the relevant “population” for the purposes of apportioning congressional representation. And, behind this case there lies a theoretically difficult question, whether congressional districts must be of the same total population — the number of residents within each district — or some different population that represents the number of votes cast in each district. Put differently, this is a choice between two conceptions of democratic equality, "electoral equality” and “equal representation.”

In other words, how do we classify "population": by the number of people in the congressional district, or by the number of people who are eligible to vote? The question is important, because the plaintiffs says that, since other districts have fewer registered voters, his vote actually has less weight than those cast in other districts.

A judge in the district court dismissed the case, hence this appeal. The Court of Appeals deems this an interesting case, and it is, although the Supreme Court hinted in 1969 that the plaintiff is probably wrong. At best, the Second Circuit says, this case is not obviously frivolous. Before the Court can deal with this issue, though, it has to resolve a procedural problem: cases like this should be handled by three district court judges before they reach the Court of Appeals, unlike 99 percent of all other cases which go before one district court judge. No one asked for a three-judge panel, and that normally prevents the Second Circuit from even hearing the case if, and only if, the case has a substantial basis in law. Put another way, if the case is weak, it does not matter that no three-judge panel was convened.

So the Second Circuit is tasked with determining whether this case is substantial or not, as opposed to determining whether the plaintiff should win the case and on what legal basis. The Court says this case is not substantial, however, excusing the lack of a three-judge panel in the district court and ruling against the plaintiff on the merits. Judge Calabresi reaches this conclusion because "Plaintiff does not assert that voting age is the best available proxy for actually equal voting power." The Court adds,

Even assuming, arguendo, that districts must be apportioned to create, or even just to approximate an equal number of voters, it does not follow at all that districts should be apportioned by voting-age population. Were it true, as Plaintiff argues, that [the Constitution] creates an individual right to an equally weighted vote, that right is not vindicated by having districts of equal voting-age population. Many persons of voting age cannot vote, such as felons, ex-felons, and noncitizens, and many eligible voters choose not to vote.

Due process satisfied in property foreclosure

What does "due process" mean? Questions like that are being asked this week as law schools begin yet another semester. The point is that a very brief reference to due process of law in the Fourteenth Amendment can give rise to volumes of case law, as due process very often is in the eye of the beholder. The Second Circuit further defines due process in holding what prior notice is required when the County wants to foreclose on a home.

The case is Miner v. Clinton County, decided on September 5. The County wanted to proceed with foreclosure against a homeowner who allegedly did pay property taxes. There is no dispute that the home is a property interest which requires some due process before the government can take it away. The question is what pre-deprivation notice is required before the County can seize the property?

The Second Circuit holds that the homeowner does not have a right to actual notice of foreclosure. Instead, "they are entitled to notice that is reasonably calculated under the circumstances to reach the intended recipients, alert them to a pending foreclosure, and advise them of an opportunity to be heard." In this case, the notice of foreclosure was sent to the plaintiff's house in Staten Island (the foreclosure property is in Clinton County, upstate New York), and someone signed for the letter, though the signature was illegible. The County Clerk's office assumed that the plaintiff received notice, but when the taxes were not paid, the County foreclosed on the property.

The County acted reasonably, the Court of Appeals held. Prior letters sent to the Staten Island address were never returned, and the Clerk's office relied on the Post Office's representation that the foreclosure letter was actually delivered.

The law in this area is always a little fuzzy. Citing Supreme Court case law, the Court of Appeals states that "In the context of real estate foreclosures, due process does not require actual notice. Rather, the government must provide notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections."

But the plaintiff's lawyer was resourceful, finding a case from 1956 that gives the plaintiff some wiggle room. The Second Circuit is not buying it: "Although some courts have held the absence of a signature on a delivery receipt may defeat a presumption of delivery, see, e.g., Moore v. Dunham, 240 F.2d 198, 199 (10th Cir. 1956) (holding that, under Oklahoma law, an unsigned return receipt was insufficient to establish valid service), we can find no support for the proposition that the signature must be identifiable."