Paid Family Leave Without Worries?

–by Nicole Macris

Citations: Family Medical Leave Act of 1993, 29 U.S.C. § 2601, et seq. (2017); FAMILY Act, S.337, 115th Cong. (2017), https://www.congress.gov/bill/115th-congress/senate-bill/337; Wendy McElroy, The FAMILY Act is Smart Politics, but Bad for Business, The Hill (Oct. 14, 2014, 6:00 AM), http://thehill.com/blogs/pundits-blog/healthcare/219766-the-family-act-is-smart-politics-but-bad-for-the-economy; Claire Zillman, Kirsten Gillibrand is Giving Her Paid Family Leave Proposal its First Trump-Era Test, Fortune (Feb. 7, 2017), http://fortune.com/2017/02/07/trump-paid-family-leave-gillibrand/.

Abstract: United States Senator Kirsten Gillibrand (D-NY) introduced a bill that would revise the paid-leave system developed under the Family Medical Leave Act. It establishes an insurance-based program for paid-leave. There are concerns regarding how this legislation, if enacted, would affect employees, employers, and the federal government.

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Enacting the Family Medical Leave Act (“FMLA”) in 1993 provided up to 12 weeks of unpaid leave to those in need of an excused leave of absence. However, under FMLA, many employees were unable to afford leave without pay, and unable to take the full leave. The FAMILY Act will work in conjunction with FMLA to construct an affordable safety net for employees who need to care for themselves or family members.

United States Senator Kirsten Gillibrand (D-NY) introduced multiple bills to revise the FMLA. Her latest attempt began by introducing the FAMILY Act, her first try during the Trump Administration and 115th Congress in Senate Bill 337, on February 7, 2017. The FAMILY Act is modeled after the paid family leave statutes in California, New Jersey, and Rhode Island, which increased the number of people in the workforce who were eligible for paid leave insurance based on a particular set of standards. Senator Gillibrand’s bill sets forth eight objectives:

  1. centralize the policies within FMLA to the federal government and, subsequently, establish a new division within the Social Security Administration (“SSA”): Office of Paid Family and Medical Leave, to oversee the entirety of the insurance program;
  2. set forth the criteria by which individuals are eligible for benefits of the program, prohibitions, and violations;
  3. entitle individuals to the insurance if the person (a) is insured for disability insurance under SSA when the application is filed, (b) earned twelve (12) months of income from employment, (c) filed an insurance application pursuant to the bill, and (d) is engaged in either caring for or anticipates to be engaged during a 90-day period, either before filing the application or within 30 days of filing;
  4. create a formulaic determination of the benefit which the individual will receive monthly, including the maximum and minimum amounts per month;
  5. coordinate the Family and Medical Leave Insurance benefits with any benefits received from other insurance programs via state law, local government, or disability insurance or family leave insurance programs;
  6. create a fund, from which the payments will be made;
  7. protect SSA from the insurance being paid from other programs within the agency; and
  8. amend the Internal Revenue Code to finance the program by imposing taxes on individuals, employers, the self-employed, and all railroad employees, railroad representatives, and railroad employers.

Thus, the FAMILY Act develops a system similar to an unemployment insurance program, but on a federal level, which gives employees a fallback plan when they need to take on the role of caregiver.

There are concerns as to how this legislation will affect individuals, employers, and the government. Individuals will have to pay into the system; the amendments to the Internal Revenue Code will impose taxes on individuals in order to fund the program. This safeguard has both negative and positive effects. The amount taken from paychecks will increase, but, on the other hand, there is a safeguard set in place for those eligible for the program, and in need of assistance. Employers will also incur a tax expenditure, but will be held to minimum FMLA standards, and may actually benefit from the insurance program established by the FAMILY Act. However, the effects facing the government could be substantial. The FAMILY Act will require the federal government to allocate resources to the program, which, in turn, removes resources from other federally funded programs or agencies. Programs such as this also place further obligations on the federal government to protect the American people.

The objectives of the bill, and insurance program, are wonderful in theory. Having a safety net is comforting, especially for those with aging parents, sickly family members, etc., especially when financial security is of concern when determining how to care for family members. Previous bills, with little to no amendments between introductions, have been killed in Congress several times already. Furthermore, it is unlikely that a new office within the SSA will be established while there is a hiring freeze. There must be revisions to the bill in order to facilitate a smooth transition from the current to proposed programs, along with provisions as to how resources will be properly allocated.

“Total Amount Due” Means the Total Amount Due

–by Andriy Troyanovych

Source: Carlin v. Davidson Fink L.L.P., No. 15-3105-cv, 2017 WL 1160887 (2d Cir. Mar. 29, 2017)

Abstract: On March 29, 2017, the Second Circuit held that a letter to a consumer debtor providing a “Total Amount Due” and then following that with small print that states that the amount may include other fees was improper under the Fair Debt Collection Practices Act.

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Facts and Procedural History

Davidson Fink, a debt collection and foreclosure firm, instituted collection proceedings against Andrew Carlin, who had allegedly defaulted on a 2005 mortgage. Davidson Fink filed a Foreclosure Complaint against Carlin. Davidson Fink sent a copy of the letter to Carlin, along with a “Notice Required by the Fair Debt Collection Practices Act,” which essentially told Carlin that the debt is assumed valid, unless he disputes it within 30 days. However, the complaint did not state a total amount owed.

Carlin promptly notified Davidson Fink and disputed the validity of the debt by requesting a verification of the total dollar amount owed. Thereafter, in August 2013, Davidson Fink sent Carlin a letter containing a payoff statement including a “Total Amount Due” of $205,261.79. But, just below the payoff statement was small print that read “Total Amount Due may include estimated fees, costs, additional payments and/or escrow disbursements that will become due prior to the ‘Statement Void After’ date, but which are not yet due as of the date this Payment Statement is issued.” Carlin then initiated proceedings against Davidson Fink alleging that the firm violated the FDCPA, particularly the section that requires a debt collector to send the debtor a written notice containing “the amount of the debt.” After reconsideration by the district court led to a dismissal of Carlin’s complaint for failure to state a claim, he appealed that decision to the Second Circuit Court of Appeals.

Second Circuit Decision

The Second Circuit vacated and remanded. The court applied the “least sophisticated consumer” standard to find that “[b]ecause Carlin ha[d] adequately alleged that the August letter [was] an initial communication sent by a debt collector . . .  and that it does not clearly state the amount of the debt,” the lower court decision was vacated and remanded.

In assessing Carlin’s claim, the court looked to whether (1) any of his communications with Davidson Fink were “initial communications” within the meaning of 15 U.S.C. § 1692g(a); (2) any of the communications were “in connection with the collection of any debt”; and (3) whether Davidson Fink provided the amount of debt within five days of such communication.

The court found quite convincingly that the August letter was the initial communication, and also that it was in connection with the collection of a debt as shown by the letter’s unambiguous communication. The court then found that Davidson Fink did not adequately state the amount of the debt Carlin owed in the August letter. Because of the small print after the “Total Amount Due,” the “least sophisticated consumer” would not be likely to determine whether those amounts were properly part of the amount of the debt. The court went on to further reason that “[a]bsent fuller disclosure, an unsophisticated consumer may not understand how these fees are calculated, whether they may be disputed, or what provision of the note gives rise to them.”

The court did point out that it was not forbidding debt collectors to include such fees in their payment statements, however, in order to do so, a debt collector should take special care to include a separate “Total Amount Due” that would “clarify the actual amount due, the basis of the fees, or simply some information that would allow the least sophisticated consumer to deduce the amount she actually owes.” This would satisfy the requirements of the FDCPA, and also provide more clarity to the debtor.

United States Supreme Court Reverses and Remands Case of Alleged Racial Bias

–by Taylor J. Hoy

Citation: Pena Rodriguez v. Colorado, 580 U.S. ____ (2017); Pena-Rodriguez v. People, 350 P.3d 287 (Colo. 2015).

Abstract: Pena-Rodriguez examines Colorado’s interpretation of Colorado Rule of Evidence (“CRE”) 606(b) as it applies to affidavits that claim jurors made racially biased statements during deliberations.

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During trial, the jury found petitioner, Miguel Angel Pena-Rodriguez guilty on one count of sexual contact without consent and two counts of harassment. Two weeks following the conviction, two jurors informed petitioner’s counsel that “some of the other jurors expressed a bias towards [Petitioner] and the alibi witness because they were Hispanic.” In a motion for a new trial, Petitioner submitted affidavits from two jurors, M.M. and L.T., alleging that juror H.C. made several racially biased statements during deliberations. Ultimately, the trial court denied petitioner’s motion based on the contention that CRE 606(b) barred further inquiry into juror members’ bias during deliberations.

After receiving affirmation from both the Colorado State Court of Appeals and the Supreme Court of Colorado, the Supreme Court of the United States granted a petition for writ of certiorari in the matter.

In its decision on March 6, 2017, the Court focused on whether CRE 606(b) may bar evidence of racial bias to prove a violation of the Sixth Amendment right to an impartial jury. The majority held that “where a juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule give way in order to permit the trial court to consider the evidence of the juror’s statement and any resulting denial of the jury trial guarantee.” The no-impeachment rule assures “jurors that, once their verdict has been entered, it will not later be called into question based on the comments or conclusions they expressed during deliberations.” The Court said that trial courts must find a “showing that one or more jurors made statements exhibiting overt racial bias that cast serious doubt on the fairness and impartiality of the jury’s deliberations and resulting verdict.” Furthermore, to succeed, statements must show that the “racial animus was a significant motivating factor in the juror’s vote to convict.” Here, the statements made by juror H.C. were “egregious and unmistakable in their reliance on racial bias.”

Justice Kennedy, writing on behalf of the majority, focused the opinion on the importance of the jury as the central foundation of our justice system and democracy and the right to a fair and impartial jury. In ordering the decision, he highlighted the importance of confronting egregious cases, amplifying the need to make strides to overcome race-based discrimination as a nation and mature as a legal system, and understanding and implementing lessons of history.

Justice Thomas and Justice Alito wrote separate dissents. Justice Thomas dissented because the Court’s decision is incompatible with the text of the Amendment and the decision to curtail or abandon the no-impeachment rule should be left to the political process. Justice Alito’s dissent, also signed by Chief Justice Roberts and Justice Thomas, argued that the Court’s decision is well-intentioned, but feared that it would be difficult to limit the Court’s ruling. “Although the Court tries to limit the degree of intrusion, it is doubtful that there are principled grounds for preventing the expansion of today’s holding.”

Coachella Music Festival Sues Urban Outfitters

–by Irem Karacal

Sources:

Kat Greene, Coachella Hits Urban Outfitters, Free People with TM Suit, Law 360, (Mar. 14, 2017, 8:46 PM EDT), https://www.law360.com/articles/902025/coachella-hits-urban-outfitters-free-people-with-tm-suit.

Ryan Reed, Coachella Organizers Suing Urban Outfitters for Trademark Infringement, Rolling Stone, (Mar. 17, 2017), http://www.rollingstone.com/music/news/coachella-suing-urban-outfitters-for-trademark-infringement-w472583.

Cait Munro, Coachella Suing Urban Outfitters is the Most Hilarious Lawsuit of 2017 Thus Far, Bullet Media, (Mar. 17, 2017, 1: