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    The Lawletter Blog

    EMPLOYMENT: Disparate-Impact Cases Under the ADEA Are Not for the Faint of Heart

    Posted by Nadine Roddy on Mon, May 22, 2023 @ 13:05 PM

    The Lawletter Vol 48 No 2

    Nadine Roddy, Senior Attorney, National Legal Research Group, Inc.

           In a most unusual case recently before the federal district court sitting in Nevada, Barnes v. Kijakazi, No. 3:18-cv-00199-MMD-WGC, 2023 WL 3007904 (D. Nev. Apr. 19, 2023), a pro se plaintiff asserted a claim of disparate-impact discrimination against the Social Security Administration (SSA) under the Age Discrimination in Employment Act (ADEA). It has been less than 20 years since the Supreme Court held in Smith v. City of Jackson, 544 U.S. 228 (2005), that disparate-impact claims are cognizable under the ADEA. The scope of disparate-impact liability is narrower under the ADEA than under Title VII, and the general requirement of statistical evidence to prove the elements of a disparate-impact case still applies. Thus, it is unusual for a pro se plaintiff to bring such a suit under the ADEA—even an attorney plaintiff.

             The plaintiff in Barnes was a lawyer who had applied unsuccessfully for the position of attorney advisor in a soon-to-be-opened SSA hearing office in Reno, Nevada. She sued the agency through its Acting Commissioner and the hiring official who handled her application. She alleged that the official had recruited and hired five attorneys for the new office in a manner that had a disparate impact on older applicants such as herself. As part of his recruitment process, the official advertised the positions externally with an online job board maintained by the University of Nevada’s law school. He also recruited from the alumni branch of the Peace Corps.

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    BANKRUPTCY: Eleventh Circuit Addresses Nuances in Preference Litigation

    Posted by Charlene J. Hicks on Mon, May 22, 2023 @ 13:05 PM

    The Lawletter Vol 48 No 2

    Charlene Hicks, Senior Attorney, National Legal Research Group, Inc.

                 Bankruptcy preference litigation involves situations in which the plaintiff (normally the trustee) tries to claw back substantial monetary payments debtors make to creditors within 90 days of filing for bankruptcy. Preference cases are deceptively simple in form. However, complications often arise, particularly in cases involving creditors that regularly do business with the debtor. Such creditors may invoke diverse sections of the Bankruptcy Code in an attempt to negate the trustee’s reimbursement claim against them.

                In Auriga Polymers Inc. v. PMCM2, LLC, 40 F.4th 1273, 1277 (11th Cir. 2022), the Eleventh Circuit Court of Appeals recently analyzed the interplay between two such sections of the Bankruptcy Code. One of the eight preference defenses a creditor may raise is known as the subsequent new value defense and is set forth in 11 U.S.C. § 547(c)(4). Section 503(b)(9), in turn, contains an administrator expense claim that a creditor may obtain for payment in full for the value of goods sold to the debtor in the ordinary course of business within 20 days before the debtor files for bankruptcy. 11 U.S.C. § 503(b)(9). In an issue of first impression in the Eleventh Circuit and one which is unsettled in other circuits, the Auriga Polymers court addressed “whether post-petition transfers made under a 11 U.S.C. § 503(b)(9) request will reduce the creditor’s new value defense” under 11 U.S.C. § 547(c)(4). The trustee claimed that Auriga would effectively receive a “double payment” if it were allowed to obtain payment for its administrator expense claim and also to avoid repayment to the trustee under the preference defense of subsequent new value. Auriga Polymers, 40 F.4th at 1288.

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    BANKRUPTCY:   The Bankruptcy Court's Discretionary Authority Under Rule 1016 to Allow Further Administration of a Chapter 13 Case

    Posted by Anne B. Hemenway on Mon, May 1, 2023 @ 14:05 PM

    The Lawletter Vol. 48 No. 1

    Anne Hemenway, Senior Attorney, National Legal Research Group, Inc.

            It is not uncommon for a debtor who filed a Chapter 11 or 13 bankruptcy case to die or become incapacitated during the life of the bankruptcy proceeding. Under Fed. R. Bankr. P. 1016:

    If a reorganization, family farmer's debt adjustment, or individual's debt adjustment case is pending under chapter 11, chapter 12, or chapter 13, the case may be dismissed; or if further administration is possible and in the best interest of the parties, the case may proceed and be concluded in the same manner, so far as possible, as though the death or incompetency had not occurred.

                Interestingly, the rule is different where the debtor filed under Chapter 7. The death or incompetency of the debtor "shall not abate a liquidation case under chapter 7 of the Code." This is because the death of the debtor has no practical effect on the administration of a Chapter 7 which is in the hands of the Chapter 7 Trustee. See Hawkins v. Eads, 135 B.R. 380 (Bankr. E.D. Cal. 1991).

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    Topics: bankruptcy, bankruptcy court, Rule 1016, Lawletter Vol. 48 No. 1

    CIVIL RIGHTS:   SCOTUS: Use of Un-Mirandized Statement Does Not Serve as Basis for § 1983 Claim

    Posted by Jason Holder on Mon, May 1, 2023 @ 14:05 PM

    The Lawletter Vol. 48 No. 1

    Jason Holder, Senior Attorney, National Legal Research Group, Inc.

              Accused of sexually assaulting a patient while working as a certified nursing assistant, Terence Tekoh was interrogated “at length” by a Los Angeles County Sheriff’s Department Deputy. Vega v. Tekoh, 142 S. Ct. 2095, 2099, 213 L. Ed. 2d 479, 485 (2022). While the Deputy ultimately secured a written statement from Tekoh apologizing for inappropriate touching of a patient, the Deputy had failed to inform Tekoh of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Vega, 142 S. Ct. at 2099-2100. Following a mistrial, Tekoh was acquitted at the conclusion of his second trial. Id. at 2100. In both criminal trials, judges refused to suppress the un-Mirandized statement. Id.

            Following his acquittal, Tekoh brought suit against the Deputy and other defendants pursuant to 42 U.S.C. § 1983, alleging violation of his Fifth Amendment right against self-incrimination. Id. An improper jury instruction led to a second trial in the civil action at which Tekoh requested the jury be instructed that it was “required to find that Vega violated the Fifth Amendment right against compelled self-incrimination if it determined that he took a statement from Tekoh in violation of Miranda and that the statement was then improperly used against Tekoh at his criminal trial.” Id. The trial court refused the request, holding that Miranda establishes a mere prophylactic rule that could not, standing alone, provide a ground for § 1983 liability. Id. A panel of the Ninth Circuit reversed, holding that “Dickerson [v. United States, 530 U.S. 428, 120 S. Ct. 2326, 147 L. Ed. 2d 405 (2000)] made clear that the right of a criminal defendant against having an un-Mirandized statement introduced in the prosecution's case in chief is indeed a right secured by the Constitution.” Tekoh v. County of Los Angeles, 985 F.3d 713, 720 (9th Cir. 2021).

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    Topics: civil rights law, criminal law, Lawletter Vol. 48 No. 1, SCOTUS

    CIVIL PROCEDURE:   Rule 60(b)(1) “Mistake” Includes a Judicial Error of Law

    Posted by Paul A. Ferrer on Mon, May 1, 2023 @ 14:05 PM

    The Lawletter Vol. 48 No. 1

    Paul Ferrer, Senior Attorney, National Legal Research Group, Inc.

                Rule 60(b) of the Federal Rules of Civil Procedure authorizes a court to relieve a party from a final judgment, order, or proceeding for various reasons, including “mistake, inadvertence, surprise, or excusable neglect.” Fed. R. Civ. P. 60(b)(1). The U.S. Circuit Courts of Appeal have had a “longstanding disagreement whether ‘mistake’ in Rule 60(b)(1) includes a judge’s errors of law.” Kemp v. United States, 142 S. Ct. 1856, 1861 & n.1, 213 L. Ed. 2d 90 (2022). Resolving that question in Kemp, the U.S. Supreme Court held, based on the text, structure, and history of Rule 60(b), that “a judge’s errors of law are indeed ‘mistake[s]’ under Rule 60(b)(1).” Id. at 1860. In so holding, the Supreme Court indicated that the term “mistake” in Rule 60(b)(1) should be given its broadest possible interpretation to include any mistake, including “all mistakes of law made by a judge.” Id. at 1862.

                The Supreme Court specifically rejected the Government’s narrower reading of Rule 60(b)(1) in Kemp that the term “mistake” includes “only so-called ‘obvious’ legal errors.” Id. The Supreme Court’s decision sensibly spared the federal district courts from having “to decide not only whether there was a ‘mistake’ but also whether that mistake was sufficiently ‘obvious,’” since the plain language of Rule 60(b)(1) “does not support—let alone require—that judges engage in this sort of complex line-drawing.” Id. at 1863. Thus, the rule going forward could not be any simpler: relief from a final judgment or order may be granted under Rule 60(b)(1) based on a judge’s “mistakes,” including legal errors.

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    Topics: civil procedure, Rule60(b)(1), error of law, Lawletter Vol. 48 No. 1

    FAMILY LAW:  Prejudgment Attachment and Child Support

    Posted by Brett R. Turner on Mon, May 1, 2023 @ 13:05 PM

    The Lawletter Vol. 48 No. 1

    Brett Turner, Senior Attorney, National Legal Research Group, Inc.

              Mother and Father married in 1996 and had two children. Mother filed for divorce in 2019, and the divorce was granted in July of 2021. Father was ordered to pay child support.

                In October 2021, three months after the divorce, Father filed to reduce child support, alleging that he had been terminated from his job. He then failed to make his October and November child support payments and was also not in compliance with the property division terms of the decree.

                Father was in the process of selling a piece of real estate, the Carpentersville property, awarded him in the decree. In mid-November, Mother moved the court to order the proceeds from that sale be placed in escrow, with the proceeds used to satisfy Father's child support and other obligations under the decree. The trial court granted the motion to the extent of holding the sale proceeds in escrow, and Father appealed.

                Father argued that the escrow order was an impermissible prejudgment attachment of funds in which Mother had no interest. The appellate court rejected the premise that the trial court issued a prejudgment attachment at all. "Instead, the trial court was exercising its equitable power to protect the two minor children and their right to support." In re Patel, 2022 IL App (1st) 211650, ¶ 23. "Hence, the trial court may order an injunction of proceeds to prevent the dissipation of assets that may be used to satisfy court-ordered child support and maintenance." Id.

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    Topics: family law, division of marital property, child support obligation, Lawletter Vol. 48 No. 1

    ATTORNEY AND CLIENT—LEGAL ETHICS “Reply All” Only When You Mean It

    Posted by Amy Gore on Mon, May 1, 2023 @ 13:05 PM

    The Lawletter Vol. 48 No. 1

    Amy Gore, Senior Attorney, National Legal Research Group Inc.

         Like so many others in today’s society, lawyers are dependent upon electronic forms of communication, including email. The use of electronic communications has raised a plethora of ethical concerns for practitioners. Now, in addition to the previous ethical concerns, the dreaded “Reply All” is added to the list that practitioners must oversee.

         In Formal Opinion 503 (2023), the ABA Standing Committee on Ethics and Professional Responsibility cautions lawyers to not copy their clients on electronic communications to opposing counsel, unless the intended result is a “reply all” response. The Committee cited Model Rule 4.2 which cautions that an attorney, in representing a client, may not “communicate” about the subject of the representation with a represented person absent the consent of that person’s lawyer, unless the law or court order authorizes the communication. When an attorney sends a communication to opposing counsel and includes the client on the email communication, the receiving attorney is likely going to reply all. This would result in opposing counsel communicating with a represented person, and possibly without the consent of the client’s attorney.

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    Topics: attorney-client, legal ethics, Lawletter Vol. 48 No. 1, email

    TORTS:  Claims for Both Direct Negligence and Vicarious Liability

    Posted by Alfred C. Shackelford III on Tue, Dec 6, 2022 @ 11:12 AM

    The Lawletter Vol 47 No 4

    Fred Shackelford—Senior Attorney, National Legal Research Group

           Can a plaintiff pursue claims of direct negligence against an employer when the employer admits that its employee was acting within the scope of employment at the time a tort occurs? The Louisiana Supreme Court addressed this issue of first impression in Martin v. Thomas, 2021-01490 (La. 6/1/22); 346 So. 3d 238. In the Martin case, the plaintiff (Reginald Martin) alleged that a truck driver (Rodney Thomas) caused an accident while operating a tractor truck owned by his employer (Greer Logging, LLC). After the employer admitted that its driver was acting within the scope of his employment, the plaintiff amended his complaint to add claims of direct negligence against the employer, including allegations of negligent hiring, supervision, training, retention, and negligent entrustment.

           The trial court dismissed the direct negligence claims, agreeing with defense counsel that a plaintiff cannot pursue both direct negligence and vicarious liability claims after the course and scope of employment have been admitted. The Martin court reversed on appeal, holding that Louisiana’s pure comparative fault system allows a jury to consider the degree of fault of both an employer and an employee.

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    Topics: torts, Alfred C. Shackelford III, comparative fault, vicarious liability, direct negligence

    BANKRUPTCY:  Exceptions to Bankruptcy Discharge for Fraudulently Incurred Debts

    Posted by Lee P. Dunham on Tue, Dec 6, 2022 @ 11:12 AM

    The Lawletter Vol 47 No 4

    Lee Dunham—Senior Attorney, National Legal Research Group

     

           It can be frustrating for creditors when a debtor files for bankruptcy, especially when the creditor has put time and expense into successfully litigating a claim in court and obtaining a judgment. Nonetheless, with limited exceptions, even judgment debts are dischargeable in bankruptcy. Among these exceptions to discharge are exceptions that apply to certain fraudulently incurred debts. To claim the benefit of these exceptions, the creditor must bring a timely filed “adversary proceeding” (a suit filed in the Bankruptcy Court, under a separate case number but under the umbrella of the larger bankruptcy case) and plead and prove that a particular debt is nondischargeable under 11 U.S.C. § 523(a)(2)(A) or (B).

     

           In nondischargeability actions brought pursuant to § 523(a)(2)(A), the plaintiff bears the burden of proving the elements of the claim by a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 291 (1991); In re Ricker, 475 B.R. 445, 455 (Bankr. E.D. Pa. 2012); In re Witmer, 541 B.R. 769, 777 (Bankr. M.D. Pa. 2015).

     

           A claim is nondischargeable under § 523(a)(2)(A) where the creditor proves each of the following: (1) the debtor obtained money through a material misrepresentation that, at the time, the debtor knew was false or was made with gross recklessness as to its truth; (2) the debtor intended to deceive the creditor; (3) the creditor justifiably relied on the false representation; and (4) its reliance was the proximate cause of loss. In re Rembert, 141 F.3d 277, 280-81 (6th Cir. 1998). Section 523(a)(2)(A) applies only to statements other than statements “respecting the debtor’s or an insider’s financial condition,” which fall under the narrower exception defined under § 523(a)(2)(B).

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    Topics: bankruptcy, Lee Dunham, adversary proceeding, fraudulently incurred debts

    ESTATES:  Is It Legal to Inherit Objects Made from Endangered Species Parts?

    Posted by Matthew T. McDavitt on Tue, Dec 6, 2022 @ 11:12 AM

    The Lawletter Vol 47 No 4

    Matthew McDavitt—Senior Attorney, National Legal Research Group

         It is not uncommon for the estates of individuals at death to possess one or more souvenirs, pieces of jewelry, trophies, collectibles, or artworks made from animal parts, such as carved ivory, fur rugs, tortoise-shell ornaments, crocodile skin leather, and the like. What legal issues might an estate or beneficiary face if he were bequeathed animal parts listed in Endangered Species Act?

         The U.S. Congress enacted the Endangered Species Act (“ESA” or the “Act”) (currently codified at 16 U.S.C. §§ 1531-1544) on December 28, 1973, with the aim of barring commerce in the endangered and threatened species listed in the Act, as such financial value contributes to the continuing depletion of such species and the contraction of their populations and range.

         Importantly, among the acts prohibited under the ESA, it is forbidden for an individual to “possess, sell, deliver, carry, transport, or ship, by any means whatsoever, any such species taken in violation [of the Act].” Id. § 1538(a)(1)(D) (emphasis added). However, this statutory language barring possession of an ESA-regulated species part applies solely to animals “taken in violation” of the Act, i.e., the animal was captured and/or killed and transformed into a commercial product after such species had been listed to the ESA.

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    Topics: Matthew T. McDavitt, estates law, Endangered Species Act regulations, bequeathed animal parts, noncommercial possession

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