Adjunct Law Prof Blog

New York Lawyers Sue Atty General and Comptroller Over Pension Probe

If you live in New York, you must be aware of the alleged pension scam where by several lawyers were put on the payroll of school districts in order to be eligible for a public pension. The only problem is that they did not work for the school district. New York Newsday has extensively reported on this issue. One such article is available here. 

Now, a May 16, 2008 New York Law Journal article entitled Lawyers Fight Back Over Pension Probe is reporting that some of the lawyers, in turn, have sued the AG and the Comptroller by claiming that they are acting in excess of their jurisdiction and that their pension plans vested under the NYS constitution. There 52 page complaint is available here. As the article states:

Their suit contends that the actions of Mr. Cuomo and Mr. DiNapoli "are contrary to the law, threaten to, and in some cases already have, improperly deprived or divest individuals of contract and property rights recognized and protected by the New York State Constitution and statute, and trammels the rights granted individuals by the Fifth and Fourteenth Amendments to the United States Constitution."

The action, Swergold v. Cuomo, 3897-08, seeks a declaratory judgment prohibiting Mr. Cuomo and Mr. DiNapoli from investigating the pension fund and striking the names of members they deem ineligible for benefits. It also asks that class action status be granted to the plaintiffs and other attorneys who may face a challenge to their public pension eligibility based on the part-time work they performed for government entities.

The suit was filed in Albany Supreme Court.

This lawsuit does not directly involve many of the named attorneys uncovered by Newsday. However, the underlying investigations were likely caused by those incidents which these plaintiffs complain of. Look for the suit to go no where.

Mitchell H. Rubinstein

[via google images, esl.vc.ca]

New York Judges Slowdown??

Recusals Could Lead to Discipline, Conduct Commission Forewarns is an interesting May 13, 2008 New York Law Journal article about a possible Judge, yes Judge slowdown.

As many New York lawyers know, New York Judges have not gotten a raise in years and the Chief Judge has filed suit over this. Apparently, some judges are recuses themselves from cases involving law firms where a member of the New York legislature practices.

Talk about concerted activity. Too bad, Judges are not subject to the NLRA because they do not work in the private sector. Additionally, even if they were private sector employees, slow downs are not protected activity. The judges also have something else to worry about. The Cannons of Judicial Ethics.

Mitchell H. Rubinstein 

Brooklyn Judge Files 10 Million Dollar Lawsuit Against Daily News and Attorney

The May 5, 2008 New York Law Journal is reporting that a Brooklyn State Judge has filed a 10 million dollar defamation law suit against an attorney and the Daily News. That article, which is not particularly well written, is available here.  I bring it to your attention because it is not every day that a sitting judge files a lawsuit.

Mitchell H. Rubinstein

7th Holds Veterans Are Not Required To Pay Filing Fees Under USERA

The Uniform Services Employment and Reemployment Rights Act (USERRA) prohibits discrimination againist  persons because of their service in the military. It is construed liberally in favor of the veteran plaintiff. Davis v. Advocate Health Center, ___F.3d___(7th Cir. April 28, 2008), reviews these principles and holds that veterans are not even required to pay court filing fees in order to initiate a lawsuit.

I bring this case to your attention because this was a relatively novel issue and because it demonstrates how liberally this statute is interpreted.

Mitchell H. Rubinstein

Breaking News California Supreme Court Holds Ban On Same Sex Marriage Is Unconstitutional Under State Law!

The California Supreme Court issued a 120 page ruling holding that the states ban on same sex marriages is violative of the California Constitution. Additionally, the court held that sexual orientation was a "supspect class" and therefore subject to strict scrutiny. This would apply to all types of state statutes, policies and services, not just marriages. 

The case is In re Marriage Cases, S147999, ___Cal. Rptr. ___(May 15, 2008). The court provides in part:

As discussed below, upon review of the numerous California decisions that
have examined the underlying bases and significance of the constitutional right to
marry (and that illuminate why this right has been recognized as one of the basic,
inalienable civil rights guaranteed to an individual by the California Constitution),
we conclude that, under this state’s Constitution, the constitutionally based right to
marry properly must be understood to encompass the core set of basic substantive
legal rights and attributes traditionally associated with marriage that are so integral
to an individual’s liberty and personal autonomy that they may not be eliminated
or abrogated by the Legislature or by the electorate through the statutory initiative
process. These core substantive rights include, most fundamentally, the
opportunity of an individual to establish — with the person with whom the
individual has chosen to share his or her life — an officially recognized and
protected family possessing mutual rights and responsibilities and entitled to the
same respect and dignity accorded a union traditionally designated as marriage.
As past cases establish, the substantive right of two adults who share a loving
relationship to join together to establish an officially recognized family of their
own — and, if the couple chooses, to raise children within that family —
constitutes a vitally important attribute of the fundamental interest in liberty and
personal autonomy that the California Constitution secures to all persons for the
benefit of both the individual and society.
Furthermore, in contrast to earlier times, our state now recognizes that an
individual’s capacity to establish a loving and long-term committed relationship
with another person and responsibly to care for and raise children does not depend
upon the individual’s sexual orientation, and, more generally, that an individual’s
sexual orientation — like a person’s race or gender — does not constitute a
legitimate basis upon which to deny or withhold legal rights. We therefore
conclude that in view of the substance and significance of the fundamental
constitutional right to form a family relationship, the California Constitution
properly must be interpreted to guarantee this basic civil right to all Californians,
whether gay or heterosexual, and to same-sex couples as well as to opposite-sex
couples.

A wonderful analysis is provided by New York Law School Professor Art Leonard here. CNN's coverage of this story is available here. Workplace Prof Blog, available here, characterizes this decision as "huge" with respect to labor and employment law. I would go even further and state that this is one of the most important state court decisions of our time and one of the most important decisions in at least a generation and ranks up their with decisions such as Brown v. Board of Education and Roe v. Wade.

After this decision, it appear that in California, marriaged gay couples are entitled to the same rights and responsibilies as non-gay marriage couples. This has huge implications for employee benefits and trust and estate matters at the very least. Additionally, if a gay couple marries in California, there is a serious argument that other states MUST, repeat MUST, recognize that marriage under the Full Faith and Credit Clause of the U.S. Constitution.

Look for this decision to become front and center stage in the up coming Presidential election.

Mitchell H. Rubinstein   

Federal District Court Enjoins Enforcement of FLSA Release

Allen v. SunBank Trust, __F. Supp. 2d ___, 2008 WL 1925082 (N.D. Ga. April 30, 2008)(registration required), is an important case. The court issued a TRO enjoining the enforcement of a FLSA release given in exchange of employees receiving severance benefits. What makes this case important is that there is a significant amount of wage and hour litigation occurring these days.

The case was an FLSA "collective action" involving 21 employees who signed the release. The underlying suit was over the denial of overtime pay. The court did, however, indicate that the release may have been valid if approved by the Department of Labor.

This is an important case to watch.

Mitchell H. Rubinstein   

3rd Issues Major Decision Holding That Parent Attorneys Are Not Entitled To Reimbursement For Attorneys Fees In Representing Their Child In IDEA Administrative And Federal Court Litigation

Pardini v. Allegheny Intermediate Unit, ___F.3d___, 2008 WL 2004471 (3rd Cir. May 12, 2008), is a major IDEA court blunder. The court holds that an attorney parent who successful represented his child in administrative and federal litigation was not entitled to recovery reasonable attorneys fees under the IDEA's attorney fee shifting provision.

The court basically followed its earlier decision in Woodside v. School Dist., 248 F.3d 129 (3d Cir. 2001) which held that parent attorneys are not entitled to recover attorneys fees because under Kay v. Ehrler, 499 U.S. 432 (1991)(a non-IDEA case), the purpose of an attorney fee shifting statute is to encourage independent counsel. Fair enough, but the decision should not have stopped here.

Woodside as well as the three other circuit court decisions in this area were all decided before Winkelman v. Parma City School Dist., 127 S.Ct. 1994 (2007), a case the Third Circuit does not even bother to cite. Winkelman held that parents are aggrieved parties under the IDEA and that they have enforceable rights under the IDEA. It is submitted that a very strong argument can be made that one such right should be reimbursement for attorney parent legal fees in representing their child. The least the court could have done would have been to analyze this important issue. The decision is also not particularly well reasoned and not up to par with other 3rd Circuit decisions. I hope that an application for en banc review will be filed.

Mitchell H. Rubinstein

 

NLRB Grants Special Permission To Appeal ALJ Ruling

CNN America, Inc., 352 NLRB No. 64 (May 9, 2008), is an important NLRB decision to be aware of. It concerns a "special permission to appeal." A little known Board procedure is that a litigant can appeal the ruling of an ALJ in a unfair labor practice case or of the Regional Director in a representation case to the full Board. In a sense, the special permission to appeal process is an interlocutory appeal by permission.

The case as issue concerned the issuance of a subpoena. Ultimtately, the Board granted the request for special permission to appeal, but denied it on the merits.

Mitchell H. Rubinstein

Burger King Employee Blogger Fired For Blog Posting

The Associated Press wrote an important employment law article dated May 14, 2008 entitled  Burger King Employees Fired Following Controversy Over Blog Posts.

A secretary secretly posted information on a blog where she reportedly slammed a farm workers advocacy group. Additionally, the president of a firm that Burger King did business with attempted to infiltrate this group. The secretary was fired and     Burger King stopped doing business with the firm in question. The article describes what happened as follows:

Following an investigation, Burger King Corporation has terminated two employees who participated in unauthorized activity on public Web sites which did not reflect the company's views and which were in violation of company policy," the company said in a statement.

The company owned by Burger King Holdings Inc. said Tuesday it hopes to meet with the Coalition of Immokalee Workers soon to find ways to ensure decent wages and working conditions for the region's harvesters.

Coalition co-founder Lucas Benitez said in a statement the group welcomed Burger King's actions but said more needed to be done "to clear the path toward a sincere partnership for more humane conditions in Burger King's tomato supply chain."

I bring this to your attention because it illustrates limitated rights many employees have who are employed at will, as presumably these individuals were. It is not even clear that the President was an employee. Employees who are employed at will can be fired without a hearing so long as their termination does not violate some other law such as Title VII. There is no First Amendment right to speak in the private sector workplace.

Workplace Prof Blog is also covering this story here.

Mitchell H. Rubinstein

[Image is from Google Imgages which picked it up from blogs.menupages.com] 

   

Bloggers Beware Copyright Law Applies To Us Too

IEE Spectrum has a light article reminding us bloggers that copyright law applies to us and the article summarizes the fair use defense as follows:

If you copy anything that is not yours, a potential copyright-infringement problem should raise a red flag. You already know you cannot copy songs, but what about text, pictures, and drawings? Copying these works and just crediting the author will not cut it. Copying only a little of the text matters in a fair-use defense, but that does not mean that copying only one picture or a single drawing from a Web site is fair use, since each picture or drawing is itself copyrighted. That’s not the end of the line, however, since fair use also requires an analysis of several other factors, including…

Why You Take It

Who You Are

What Technology You Use

Other Factors

To determine fair use, the effect on the market for or the value of the copied work are also considered.

Mitchell H. Rubinstein

Hat Tip: Law X.O

HAPPY BIRTHDAY ADJUNCT LAW PROFESSOR BLOG

  Today is a milestone. It marks our first birthday in the blogosphere. Sometime later today, we will pass    56, 000 visitors!!! That is amazing and speaks volumes about the strength of the Internet and blogs. When I started this, I had no idea what to expect. I was hoping for 25,000 visitors.  As you can see, we have more than doubled that.

I hope to significantly increase our readership. I need your help for that. Please pass my URL around to lawyers, professors and students whom you think might be interested. Additionally, if you have an idea about a story or want to publicize something of note, please send me an email at professorrubinstein@gmail.com. Some of our best posts have been from ideas that we have gotten from you.

I also wanted to thank our two wonderful contributing editors, Professor Eric Lustig of New England Law School and  Adjunct Professor Craig Estlinbaum who is also a Judge in Texas. Keep posting...

Thanks again for your support.

Mitchell H. Rubinstein

Union Has Standing To Arbitrate Retirees Grievances

The status of retirees is a difficult one in labor law. This is because the Supreme Court held long ago that retirees are not employees under the NLRA. The NLRA only applies to employees and employers as those terms are defined in Section 2 of the Act.

Having said that, it is very common for unions to negotiate retirement benefits and those retirement benefits may be set forth in the collective bargaining agreement. What happens if something goes wrong? Can these disputes be arbitrated?

Yes, says the Southern District of New York in Frontier Communications v. IBEW, ___F.Supp. 2d___, NYLJ May 14, 2008 (S.D.N.Y. May 6, 2008)(registration required).  In a brilliantly reasoned decision, the court draws a distinction between the right of unions to represent retirees and the right of the union to represent itself. The court hold that a union has the right to represent itself in order to enforce the terms of a collective bargaining agreement. As the court reasoned:

  Frontier's arguments are unavailing. First, the question of whether Local 503 has standing to litigate on behalf of retirees need not be reached because Local 503 has standing to litigate on its own behalf. It is "axiomatic" that a party to an agreement has standing to sue a counter-party who breaches that agreement, even where some or all of the benefits of that contract accrue to a third party. Highland Capital Management, L.P. v. Schneider, No. 02 Civ. 8098 (PKL), 2008 WL 282769, at *19 (S.D.N.Y. Jan. 31, 2008) (party to contract has standing to sue even though third-party beneficiary also has standing to sue).³ Where an employer has agreed by contract with a union to provide benefits to retirees, "then under accepted contract principles the union has a legitimate interest in protecting the rights of the retirees and is entitled to seek enforcement of the applicable contract provisions." United Steelworkers of America, AFL CIO v. Canron, Inc., 580 F.2d 77, 80-81 (3d Cir. 1978). Courts in the Second and Ninth Circuits have reached this same conclusion. See International Brotherhood of Elec. Workers AFL-CIO v. Citizens Telecommunications Co. of California, Inc., No. Civ S-06-0677, 2006 WL 1377102, at *4 (E.D. Cal. May 18, 2006), appeal docketed, No. 06-16189 (9th Cir. Jul. 3, 2006) ("[A]ccepted principles of contract law provide further support for [union] standing" to enforce retirement benefits provision.); Textile Workers of America, AFL CIO, Local 129 v. Columbia Mills, Inc., 471 F. Supp. 527, 531 (N.D.N.Y. 1978) (same).⁴ Frontier made contractual promises to Local 503 to pay certain benefits, in exchange for contract provisions desired by Frontier, and Frontier agreed to arbitrate disputes over the meaning of those promises. As a counterparty to the contract, Local 503 has a right to enforce it, and the way to enforce it is through arbitration.

Local 503's interest in enforcement is based not merely on the formality that Local 503 is a party to the contract, but also on the "undeniable" interest unions have "in assuring that negotiated retirement benefits are in fact paid and administered in accordance with the terms and intent of their contracts." Allied Chemical and Alkali Workers of America, Local Union No. 1 v. Pittsburgh Plate Glass Co., 404 U.S. 157, 176 n.17 (1971). Unions are empowered by the LMRA to negotiate retiree benefits on behalf of their workers. "To be sure, the future retirement benefits of active workers are part and parcel of their overall compensation and hence a well-established statutory subject of bargaining." Id. at 180. To say that a union may negotiate a term but is powerless to enforce it is to severely undermine one of the core reasons workers elect to organize in the first place. A "union's efforts in ensuring employer compliance with all of the terms of a collective bargaining agreement are a significant consideration for the active employees when choosing to retain the union as their exclusive bargaining representative." UAW v. Yard-Man, Inc., 716 F.2d 1476, 1486 (6th Cir. 1983). As the party that bargained for the CBA on its members' behalf, Local 503 has significant institutional interests in seeing that the terms of that agreement are enforced.

This is a major decision in this important area of law. Given the cost of retiree benefits and health care, this issue is not going to go away soon.

Mitchell H. Rubinstein

Fighting NYC Parking Tickets

A very interesting May 14, 2008 New York Times article about fighting NYC parking ticket is entitled Want to Fight a Parking Ticket? Log On First. As the article points out, parking tickets are big business in NYC-very big business. There are 40,000 tickets written PER DAY! Fines range from $35 to $165 depending upon the violation. Apparently, you do not have to be a lawyer to represent claimants.

Now there is a web site that promises it will reduce your fine or you pay nothing. What is the URL? www.parkingticket.com ,of course. As the article states:

Actually, the site, parkingticket.com, which was introduced in the Plaza Hotel in Midtown to a small conference room of reporters, is basically the same one he has offered since 2001, but it now boasts a new feature that assesses users’ chances of successfully challenging a ticket before enlisting Mr. Bolofsky to do it for them.

Users must answer about 50 questions on a series of screens; the site will then say if the ticket is beatable, and on how many grounds, in a five-minute turnaround, company officials said.

The site won’t, however, spell out how what those grounds are, so users just don’t take the information and run, they added.

If the user does continue on, and Mr. Bolofsky is ultimately successful — his tickets are dismissed or reduced 75 percent of the time, he said — users must fork over a payment

Mitchell H. Rubinstein

Autism Case Still Being Litigated

The May 13, 2008 New York Times has an interesting article entitled Court Hears More Claims of Vaccine-Autism Link about the litigation concerning the MMR vacine which some believe causes Autism. As the article states:

The United States Court of Federal Claims began another hearing on Monday to decide whether a vaccine additive led thousands of children to become autistic.

The hearing is the second in a series of three in which the court is considering whether the government should pay millions of dollars to the parents of some 4,800 autistic children. In this hearing, parents are claiming that thimerosal, a preservative that contains mercury, damaged their children’s brains. Thimerosal was removed from all routinely administered childhood vaccines by 2001.

Every major study and scientific organization to examine the issue has found no link between vaccination and autism, but the parents and their advocates have persisted.

The claims are being heard in a special court set up by Congress 20 years ago when a series of scares nearly crippled the vaccine industry. The hearing is expected to last two to three weeks, and a decision is not expected until next year.

For those interested, some helpful links are as follows:

• Omnibus Autism Proceeding (U.S. Court of Federal Claims)
• National Vaccine Injury Compensation Program (U.S. Dept. of Health and Human Services)
• Reuters: Court Hears Claim Linking Vaccines to Autism
• N.Y. Times: Court Hears More Claims of Vaccine-Autism Link
• Vaccines and Autism (Centers for Diseases Control and Prevention)

I do not pretend to know much about this litigation. But what I do know is that we never before had so many children with Autism. Something must be causing it and we must find out what that is.

Hat Tip: Autism-Vaccine Hearings in Federal Court via Findlaw

Mitchell H. Rubinstein

New Calif. Bar Exam Blog

The Cal Bar Blog is a new blog which offers information and tips about the California Bar exam. California bar exam takers may want to keep an eye on this blog.

Mitchell H. Rubinstein