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    The Lawletter Blog

    Steven G. Friedman

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    CIVIL RIGHTS: The ADEA's Numerosity Requirement Does Not Apply to Governmental Defendants

    Posted by Steven G. Friedman on Thu, Aug 1, 2019 @ 10:08 AM

    The Lawletter Vol 44 No 5

    Steve Friedman—Senior Attorney, National Legal Research Group

                The Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. §§ 621-634, is federal legislation intended "to prohibit arbitrary age discrimination in employment."  29 U.S.C. § 621(b). In relevant part, the ADEA provides that "[i]t shall be unlawful for an employer . . . to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." Id. § 623(a)(1).

                A threshold determination for implicating the ADEA is whether a potential defendant is an "employer" within the meaning of the ADEA. The ADEA defines "employer," in part, as "a person engaged in an industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year."  Id. § 630(b). One notable qualifier for "employer" is having a minimum of 20 employees.

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    Topics: civil rights, Steven G. Friedman, ADEA, numerosity requirement, exemption of state entities

    PROPERTY/LANDLORD TENANT: Can a Tenant Use the Exclusionary Rule When Fighting an Eviction?

    Posted by Steven G. Friedman on Fri, Jun 15, 2018 @ 12:06 PM

    The Lawletter Vol 43 No 3

    Steven G. Friedman—Senior Attorney, National Legal Research Group

         The Fourth Amendment to the United States Constitution protects citizens from unreasonable searches and seizures of their persons or property. See U.S. Const. amend. IV. The exclusionary rule prohibits the use of evidence obtained in violation of the Fourth Amendment. See United States v. Calandra, 414 U.S. 338, 347 (1974). However, the exclusionary rule does not apply to all proceedings or against all persons and is generally restricted to areas in which the goal of deterring unlawful police conduct is "most efficaciously served." Id. at 348. In determining whether the exclusionary rule applies, the U.S. Supreme Court has developed a balancing test whereby courts weigh the likely social benefits of excluding unlawfully obtained evidence against the possible costs. See INS v. Lopez Mendoza, 468 U.S. 1032, 1041 (1984).

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    Topics: Fourth Amendment, property law, landlord-tenant, exclusionary rule, eviction

    PROPERTY: Expansion of Easements by Necessity in Virginia

    Posted by Steven G. Friedman on Fri, Dec 15, 2017 @ 11:12 AM

    The Lawletter Vol 42 No 9

    Steve Friedman, Senior Attorney, National Legal Research Group

                "An easement is the privilege to use the land of another in a particular manner and for a particular purpose, but it does not give the owner of the dominant estate an ownership interest in the servient tract." Beach v. Turim, 287 Va. 223, 228, 754 S.E.2d 295, 297 (2014) (internal quotation marks omitted). "Easements may be created by express grant or reservation, by implication, by estoppel or by prescription." Id.

                Each type of easement is established (and sometimes governed) by a different set of rules. See Palmer v. R.A. Yancey Lumber Corp., 294 Va. 140, 803 S.E.2d 742, 749 (2017) (noting that "express easements and easements by prescription . . . have their own set of rules separate and apart from the rules governing easements by necessity").

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    Topics: property, expansion of easement, easements by necessity, enjoyment of dominant estate

    TORTS/SOVEREIGN IMMUNITY: Foreign-Country Exception to the Federal Tort Claims Act

    Posted by Steven G. Friedman on Mon, Jul 17, 2017 @ 10:07 AM

    The Lawletter Vol 42 No 5

    Steven Friedman, Senior Attorney,National Legal Research Group

                The Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671–2680, "was designed primarily to remove the sovereign immunity of the United States from suits in tort and, with certain specific exceptions, to render the Government liable in tort as a private individual would be under like circumstances." Richards v. United States, 369 U.S. 1, 6 (1962). Absent a waiver of immunity, the district courts are deprived of subject-matter jurisdiction for tort claims against the United States. See 28 U.S.C. § 1346(b)(1).

                The FTCA's foreign-country exception provides that there is no waiver of immunity for "[a]ny claim arising in a foreign country." 28 U.S.C. § 2680(k). In Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), the Supreme Court held that the foreign-country exception "bars all claims based on any injury suffered in a foreign country." Id. at 712. Yet the Sosa Court left unanswered the question of how to determine where an injury is "suffered" for purposes of the foreign-country exception. See S.H. ex rel. Holt v. United States, 853 F.3d 1056, 1057–58 (9th Cir. 2017).  

                This question was directly addressed in a recently published decision by a unanimous panel of the Ninth Circuit. See id. at 1060. In S.H., the Holts' daughter was born prematurely while the family was stationed at a United States Air Force ("USAF") base in Spain. See id. at 1058. As a consequence of her premature birth, S.H. sustained a permanent injury to the white matter of her brain but was not diagnosed as suffering from cerebral palsy until after the family had returned to the United States. See id.

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    Topics: tort law, sovereign immunity, foreign-country exception, FTCA

    CIVIL PROCEDURE: Strictly Construing Service of Process Rules to Devastating Effect

    Posted by Steven G. Friedman on Tue, Jan 3, 2017 @ 13:01 PM

    The Lawletter Vol 41 No 11

    Steve Friedman, Senior Attorney, Senior Attorney

         "Without proper service of process, consent, waiver, or forfeiture, a court may not exercise personal jurisdiction over a named defendant." 36 C.J.S. Federal Courts § 31 (Westlaw database updated Sept. 2016). "Personal jurisdiction usually is obtained over a defendant by service of process." Id. Thus, untimely or ineffective service of process can stop a case dead in its tracks. The means of serving process is typically set forth by statute or court rule, the terms of which are often strictly construed. Below are two cautionary tales to illustrate the point.

         In New York, service of process is governed by Rule 2013 of the Civil Practice Law and Rules ("C.P.L.R."). Typically, service can be accomplished "by mailing the paper to  . . . the address designated by that attorney for that purpose or, if none is designated, at the attorney's last known address." The statute further notes that "service by mail shall be complete upon mailing." C.P.L.R. 2013(b)(2) (service upon attorneys); accord C.P.L.R. 2013(c) (incorporating C.P.L.R. 2013(b)(2) for service upon a party). In turn, the statute defines "mailing" as

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    Topics: service of process, civil procedure, governed by statute or court rule

    MORTGAGES: A 2009 Amendment to the Truth in Lending Act, 15 U.S.C. § 1641(g), Is Not Retroactive

    Posted by Steven G. Friedman on Wed, Feb 17, 2016 @ 13:02 PM

    The Lawletter Vol. 41, No. 2

    Steve Friedman, Senior Attorney, National Legal Research Group

         The federal Truth in Lending Act ("TILA"), 15 U.S.C. §§ 1601–1667f, was enacted to, among other things, "protect the consumer against inaccurate and unfair credit billing and credit card practices." Id. § 1601(a). Prior to 2009, TILA required that borrowers be informed if the servicer of their mortgage loan changed, but there was no such notice requirement if the owner of their mortgage loan changed. To impose the latter requirement, Congress enacted Public Law No. 111-22, 123 Stat. 1632 (2009).

         Specifically, the following new text was added to TILA: "[N]ot later than 30 days after the date on which a mortgage loan is sold or otherwise transferred or assigned to a third party, the creditor that is the new owner or assignee of the debt shall notify the borrower in writing of such transfer[.]" 15 U.S.C. § 1641(g)(1). Notably, if the new creditor does not comply, the borrower may bring suit to recover actual damages, a statutory penalty of up to $4,000 for individual claims ($1 million for a class action), plus costs and attorney's fees. See id. § 1640(a).

         In a recent case out of the U.S. Court of Appeals for the Ninth Circuit, the appellate court was presented with an issue of first impression: Is the new requirement in § 1641(g) retroactive? See Talaie v. Wells Fargo Bank, 808 F.3d 410 (9th Cir. 2015).

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    Topics: Truth in Lending Act, mortgages, Steven G. Friedman, retroactive application, § 1641, The Lawletter Vol 41 No 2

    CIVIL RIGHTS: A Civil Rights Civil War: Religious Observance and Educational Rights of the Disabled

    Posted by Steven G. Friedman on Mon, Oct 19, 2015 @ 17:10 PM

    The Lawletter Vol 40 No 9

    Steve Friedman, Senior Attorney, National Legal Research Group

         One of the bedrock principles of American jurisprudence is the freedom of religion guaranteed by the First Amendment. See U.S. Const. amend. I. More recently, the law had mandated that disabled students are to receive certain minimum educational benefits at public expense. See 20 U.S.C. §§ 1400–1491o (Individuals with Disabilities Education Act ("IDEA")); 29 U.S.C. § 794 (Rehabilitation Act of 1973 ("RA")). At times, these two distinct rights may overlap and conflict with one another. As illustrated by two fairly recent cases, however, public schools need not accommodate the student's (or the parents') religious beliefs in providing a free appropriate public education ("FAPE") as required by the IDEA and the RA.

          In M.L. ex rel. Leiman v. Starr, No. PWG-14-1679, 2015 WL 4639569 (D. Md. filed Aug. 3, 2015), appeal filed, No. 15-1977 (4th Cir. Aug. 27, 2015), the parents of a child with an intellectual disability brought suit against Maryland's Montgomery County Board of Education, alleging that the Board had failed to provide the student with a FAPE as required by the IDEA. The student is part of the Orthodox Jewish community, and, thus, it is very important to his parents that he learn the rules and customs of Orthodox Jewish life. Consequently, the parents sought an individualized education program ("IEP") that placed the student at a private school where the basics of Orthodox Jewish life are a part of the curriculum. Instead, the school district proposed an IEP that placed the student at a public school that did not include instruction on Orthodox Jewish life.

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    Topics: civil rights, Steven G. Friedman, The Lawletter Vol 40 No 9, religious observance, educational rights

    PUBLIC LAW: Ability to Obtain Shelter Is a Major Life Activity

    Posted by Steven G. Friedman on Thu, Jul 9, 2015 @ 11:07 AM

    The Lawletter Vol 40 No 5

    Steve Friedman, Senior Attorney, National Legal Research Group

         The Fair Housing Act ("FHA"), 42 U.S.C. §§ 3601–3631, the Americans with Disabilities Act ("ADA"), id. §§ 12101–12213, and the Rehabilitation Act ("RA"), 29 U.S.C. §§ 701–796l, each prohibit certain forms of discrimination based on physical impairments. See 42 U.S.C. § 3604(f)(1) (making it unlawful "[t]o discriminate in the sale or rental [of], or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap"); id. § 12112(a) (making it unlawful to discriminate against disabled persons in employment); id. § 12132 (same regarding public services); id. § 12182(a) (same regarding public accommodations); id. § 594(a) (same regarding "any program or activity receiving Federal financial assistance").

          "The relevant portions of the FHA, ADA, and [RA] offer the same guarantee that a covered entity . . . must . . . make the entity's benefits and programs accessible to people with disabilities," and, thus, the analysis "under the three statutes is treated the same." Sinisgallo v. Town of Islip Hous. Auth., 865 F. Supp. 2d 307, 337 (E.D.N.Y. 2012) (internal quotation marks omitted). A person is considered to have a disability under the FHA, ADA, and RA if that person has, in fact, a record of, or is merely regarded as having, "a physical or mental impairment that substantially limits one or more of the major life activities of such individual." 42 U.S.C. § 12102(2) (ADA); id. § 3602(h) (FHA). "[M]ajor life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working." Id. § 12102(2)(A) (emphasis added).

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    Topics: Rehabilitation Act, Fair Housing Act, Americans with Disabilities Act, Steven G. Friedman, The Lawletter Vol 40 No 5, housing/shelter, major life activity

    MORTGAGES: Notice of the Truth Shall Set You Free: Timely Assertion of the Right of Rescission Under the Truth in Lending Act

    Posted by Steven G. Friedman on Thu, Mar 19, 2015 @ 10:03 AM

    The Lawletter Vol 40 No 1

    Steve Friedman, Senior Attorney, National Legal Research Group

         The federal Truth in Lending Act ("TILA"), 15 U.S.C. §§ 1601–1677, was enacted to ensure "a meaningful disclosure of credit terms" to give consumers the opportunity to make informed credit decisions. Id. § 1601(a). In relevant part, TILA grants consumers a right to rescission, no questions asked, under certain circumstances. See id. § 1635(a); 12 C.F.R. § 226.15(a)(3). Once a consumer validly exercises the right to rescind, the entire transaction is voided without any liability or encumbrances. See 15 U.S.C. § 1635(b); 12 C.F.R. § 226.15(d)(1).

         To effectively rescind, however, consumers must timely do so. Specifically, consumers must notify the lender prior to the later of "midnight of the third business day following the consummation of the transaction or the delivery of the [requisite disclosures under the Act]." 15 U.S.C. § 1635(a). Although the second alternative seems open-ended, the Act further states that in no event shall the right of rescission extend beyond "three years after the date of consummation of the transaction or upon the sale of the property, whichever comes first." Id. § 1635(f). But what exactly must be exercised no later than three years after the transaction—the notice of intent to rescind, or the lawsuit seeking rescission? Abrogating the law of the Eighth Circuit Court of Appeals and applying the plain language of TILA, the U.S. Supreme Court held that it was the former. See Jesinoski v. Countrywide Home Loans, Inc., 135 S. Ct. 790 (2015), rev'g 729 F.3d 1092 (8th Cir. 2013).

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    Topics: Truth in Lending Act, mortgages, property, right of rescission

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