All Bets Are Off – Daily Fantasy Sports Embroiled in Legal Battle in New York

— by Wes Gerrie

 

Case: People v. FanDuel Inc., DraftKings Inc., et al., No. 453056/15, 2015 N.Y. Misc. Lexis 4521 (S.D.N.Y. Dec. 11, 2015).

 

Abstract

The popular, yet controversial, activity of Daily Fantasy Sports faced its first legal test for illegal gambling operations in New York. The Supreme Court of New York heard both sides and deferred its ultimate decision. However, in the meantime the companies were enjoined from conducting business in the state.

 

Narrative

Introduction

            FanDuel and DraftKings are online Daily Fantasy Sports (“DFS”) companies that operate wagering websites. On these sites the customer selects a set number of professional athletes for their DFS team staying under a salary cap based on an athlete’s perceived value by the companies. The success of their wager is tallied by FanDuel and DraftKings who rely on individual real game performances of the athletes selected. DFS has two types of games: head-to-head (betting selected lineup will perform better than others), or guaranteed prize pools (contest where payout is based on standing).

In this case the People (plaintiff) allege this structure of is a contest of chance. On the contrary, FanDuel and DraftKings (defendants) argue the customer combinations, creation of user algorithms, and analysis of statistics make DFS a game of skill.

 

Procedural History

 

To begin, the complex history of this case began on October 6, 2015 when New York (“NY”) Attorney General (“A.G.”) Eric T. Schneiderman (“Schneiderman”) started an initial probe into DFS in NY, after complaints of insider information benefiting employees winning on the competing site. On November 10, as a result of the investigation Schniederman served a cease and desist letter to both parties, finding these sites are illegal gambling operations.

On November 13 both sites commenced an action for temporary restraining orders against Schniederman in the hopes of pre-emptively stopping action against them. In this action they cited full compliance with NY law as a game of skill, an arbitrary and capricious investigation, violation of Due Process, and tortious interference with their business; this action was denied. On November 17 Schniederman filed for an injunction to prevent FanDuel and DraftKings from operating in NY due to fraudulent conduct and illegal gambling practices.

Court Analysis and Rationale

 

Judge Manuel Mendez ordered an injunction restraining FanDuel and DraftKings from doing business in the State of New York and from accepting entry fees, wagers, or bets from New York consumers for any contest on their websites. The court held for A.G. Schneiderman on the basis of three key rationale.

First, Executive Law §63 permits the NY A.G. to bring action for injunctive relief to remedy a repeated fraud or illegality upon the finding of a prima facie case where the act complained of has the tendency to deceive or creates an atmosphere conducive to fraud. Under General Business Law §349 a prima facie case is established by the showing of injury resulting from defendant engaging in an act or practice materially misleading or deceptive. Additionally, General Business Law §350 permits a prima facie case when the defendant engages in false advertising with a showing of reliance on said advertisement. Here, the court found A.G. Schniederman established a likelihood of success warranting an injunction under the authority of §63 due to violations of both §349 and §350.

Second, New York State Constitution Article 1 §9 states “no lottery or sale of lottery tickets, pool-selling, book making or any other kind of gambling…shall hereafter be authorized or allowed within [New York]”. In NY, Penal Law §225 defines gambling as when a person stakes or risks anything of value upon the outcome of a contest of chance not under their control. Here, Judge Mendez specifically mentioned A.G. Schniederman has a greater likelihood of success on the merits of this illegal gambling and contest of chance allegation. In finding this Judge Mendez interpreted §225 broadly and determined DFS involves illegal gambling in some capacity. The court differentiated the case at hand from Humphrey v. Viacom by stating DFS is not a one-time fee, not seasonal, and has a percentage of every fee being paid directly to these companies who control almost every aspect of the wager. Judge Mendez wrote this reflects NY State’s policy against commercial gambling.

Lastly, the final rationale involved refuting FanDuel and DraftKing’s claims made in their November 16th action. Judge Mendez pointed out Due Process only requires notice and an opportunity to be heard which was properly complied with during A.G. Schniederman’s month long investigation. Additionally, the court found no showing of an arbitrary and capricious enforcement of illegal gambling laws because both FanDuel and DraftKings were named defendants and no “similarly situated” DFS websites were exempted from A.G. Schneiderman’s probe.

 

Conclusion

 

However, later in the day, after this decision was handed down, the Appellate Court of NY granted a temporary stay of the injunction.[1] Part of this stay led to the announcement a New York State Appellate Division five-judge panel will hear the case in full on January 4th, 2016. The appeals and memorandum[2] for this hearing have been filed in this landmark case, so place your bets!

 

 

 

[1]           Chris Grove, Daily Fantasy Sites Get Reprieve After Initial Loss in New York Court Battle; FanDuel Reenters NY, Legal Sports Report, December 11, 2015,  http://www.legalsportsreport.com/6690/dfs-sites-ny-court-battle/.

 

[2]           Recently, A.G. Schneiderman wrote an addendum to the case seeking a return of all profits earned by the sites to it’s fans.

Obama’s Executive Action for Gun Control

— by Hannah Lewis

 

Source: Press Release, Office of the Press Secretary, The White House, Fact Sheet: New Executive Actions to Reduce Gun Violence and Make Our Communities Safer (Jan. 4, 2016).

 

Abstract: President Barack Obama recently announced that taking executive action to increase gun control regulation and make the process of obtaining a gun more thorough. Obama is aiming to classify more gun sellers as gun dealers, which will require them to conduct background checks on potential buyers.

***

In light of all the incidents, fatalities, and mass shootings occurring around the country that involve guns, President Barack Obama announced at the beginning of January that he is pushing for more regulation with gun control. Previous action by President Obama to pass gun control legislation has been unsuccessful and he has been unable to get Congress on board with his previous gun control plans. This new regulation is aimed at decreasing gun violence and illegal possession of guns. President Obama is taking executive action to achieve these ends.

 

This executive action consists of ten provisions. First, ATF states that if you are in the business of selling firearms, you must have a license and conduct background checks. Second, if a potential buyer is trying to purchase a weapon that is considered one of the most dangerous, through a trust, corporation, or other legal entity, then a background check is required. Third, the FBI is making the background system more effective and efficient, with improvements such as 24/7 processing and notifying authorities when a prohibited individual attempts to purchase a weapon. Fourth, in an attempt to make the communities safer, the 2017 federal budget will include funding for 200 new ATF agents to enforce gun laws. Fifth, the Internet Investigation Center has been established that will be responsible for tracking illegal online gun trafficking.

 

The six provision entails a requirement that gun dealers notify law enforcement if the guns are lost of stolen in the process of their sale. The seventh provision proposes an increase in access to mental health care through a $500 million investment. The eighth provision entails a requirement for the background checking system that requires information about beneficiaries who are prohibited from possessing a firearm due to their mental health. The ninth provision includes eliminating unnecessary legal barriers that prevent States from reporting information relating to people that are prohibited from possessing a gun due to their mental health. The final provision directs the sectors of the federal government, including the Department of Defense, Department of Justice, and the Department of Homeland Security, to conduct research on gun safety technology.

 

As with any new laws, these provisions have come with both high praise and scrutiny. Opponents argue that this is executive overreach and bypasses the legislative branch. Arguments that this these provisions are a violation of the Second Amendment have also been made. Additionally, they question whether these new laws will actually achieve the end of reducing gun violence because criminals are not going to follow the laws anyways. GOP presidential candidates have also spoken out against President Obama’s executive action. If elected, they vow to reverse the executive order once they are in office.

Women Only Liable for Intentional Injuries to Unborn Fetuses, Court of Appeals Says

–by Chris Powers

Abstract: The New York Court of Appeals ruled that a mother cannot be held liable for the death of a newborn baby when the baby’s injury was caused by the mother’s prenatal negligence because criminalizing negligence in this context gave too much discretion to prosecutors.

***

The New York Court of Appeals ruled last month in People v. Jorgensen[1] that a mother cannot be held liable for the death of a newborn baby when the baby’s injury was caused by the mother’s prenatal negligence.

 

Jorgensen was 34 weeks pregnant when the car she was driving entered the oncoming lane of traffic and struck a vehicle head on, killing both occupants of that vehicle. Jorgensen was taken to a hospital, where tests revealed probable fetal injuries. She consented to an emergency C-section, and the baby was delivered. The baby died six days later and an autopsy confirmed that the cause of death was injuries sustained the automobile accident.

 

Jorgensen was subsequently indicted on three counts of manslaughter in the second degree, one for each occupant of the other vehicle and one for the baby. At trial, the prosecution’s theory was that defendant was speeding and under the influence of prescription drugs when she struck the vehicle. Upon impact, the fetus was injured when the defendant, who was not wearing a seat belt, hit the steering wheel. The first jury was unable to reach a verdict, but a second jury acquitted her of two counts but convicted her for the death of her child. The Appellate Division affirmed the trial court.

 

The Court of Appeals reversed by a 5-1 vote, holding that “it is evident from the statutory scheme that the legislature . . . did not intend to hold pregnant women criminally responsible for conduct with respect to themselves and their unborn fetuses unless such conduct is done intentionally.” The majority analyzed multiple provisions in the New York Penal Law to reach the conclusion that the legislative intent in making the relevant laws was to require intentional behavior, not mere recklessness, by a pregnant woman to hold her criminally responsible for harm to themselves and their unborn children. Specifically, the majority found that the legislature had explicitly included criminal liability for harm to unborn fetuses in circumstances relating to self-abortions, so the legislature clearly had contemplated prenatal acts in devising the statute. The fact that reckless and negligence were not included, the majority contended, was not an inadvertent omission; the legislature must have meant to exclude it.

 

Next, the majority gave a policy reason for reaching its result, saying, “The imposition of criminal liability . . . [should] not be left to the whim of the prosecutor.” As the majority argued, a pregnant woman’s reckless behavior could be stretched by an ambitious prosecutor to include “disregard[ing] her obstetrician’s specific orders concerning bed rest; tak[ing] prescription and/or illicit drugs; shovel[ing] a walkway; engag[ing] in a contact sport; carry[ing] groceries; or disregard[ing] dietary restrictions.” If mere recklessness could result in criminal liability, a mother could conceivably be charged with a crime for such conduct if it resulted in premature birth and subsequent death of the child. The same conduct, however, would not be criminalized if the fetus died in utero. In essence, the majority was worried about creating a perverse incentive for a woman to refuse to deliver the baby if she feared criminal prosecution should the baby not survive after birth.

 

One judge dissented, saying, “I cannot join in a result that analyzes our statutes to determine that a six-day-old child is not a person.” The dissenting judge conducted a statutory interpretation of his own, citing many of the same statutes, to reach an opposite conclusion. He reasoned that the “pertinent parts of the Penal Law speak to victims as they are, not as they were at the time the acts giving rise to the crime were committed. There is no pregnant mother exception from criminal liability for reckless acts that result in the death of a mother’s baby postpartum.”

 

In its opinion, the majority directly appealed to the legislature to make its intent clear for such a situation as the facts presented here. (“The imposition of criminal liability upon pregnant women for acts committed against a fetus that is later born and subsequently dies as a result of injuries sustained while in utero should be clearly defined by the legislature, not the courts.”)

 

Time will tell if the state lawmakers respond.

 

[1]           People v. Jorgensen, 2015 NY Slip Op 07699, (N.Y. Oct. 22, 2015),

http://www.courts.state.ny.us/reporter/3dseries/2015/2015_07699.htm

 

Second Circuit Holds that the Discharge Injunction Provisions of the Bankruptcy Code do not Repeal Post Discharge Claims Under the Fair Debt Collection Practices Act

— by Matthew Schutte

Case: Garfield v. Ocwen Loan Servicing, LLC, 2016 U.S.  App. LEXIS 3 (2d Cir. 2016)

Abstract: Plaintiff borrower appealed from District Court’s dismissal of her post discharge Fair Debt Collection Practices Act claims against Defendant loan servicer. The Second Circuit held that the discharge injunction provision of the Bankruptcy Code does not broadly or impliedly repeal FDCPA claims in the post discharge context.

***

Plaintiff borrower was a former Chapter 13 debtor. Plaintiff sued Defendant loan servicer, alleging that Defendant violated various provisions of the Fair Debt Collection Practices Act (FDCPA) when it tried to collect a debt on her mortgage that had previously been discharged in bankruptcy proceedings. The United States District Court for the Western District of New York granted Defendant’s motion to dismiss for failure to state a claim on the ground that the exclusive remedy for Defendant’s alleged conduct was under the discharge injunction provision in §524(a) of the Bankruptcy Code.

In reviewing the District Court’s dismissal of Plaintiff’s claim, the Second Circuit had to address four issues of first impression: (1) whether § 524(a) of the Bankruptcy Code broadly repeals the FDCPA in the context of FDCPA claims based on conduct that would constitute a violation of the Bankruptcy Code’s discharge injunction; (2) whether § 524(a) of the Bankruptcy Code impliedly repealed Plaintiff’s claim that Defendant’s attempt to collect the discharged debt constituted a violation of §1692e(11) of the FDCPA, requiring a debt collector to provide a mini Miranda warning in its initial communication with a debtor; (3) whether § 524(a) of the Bankruptcy Code impliedly repealed Plaintiff’s claims under § 1692e(11) and § 1692g(a)(3) of the FDCPA, regarding the way in which Defendant tried to collect Plaintiff’s post bankruptcy monthly payments; and (4) whether § 524(a) of the Bankruptcy Code impliedly repealed Plaintiff’s claim that Defendant’s attempt to collect her discharged debt constituted a violation of §§ 1692e, 1692e(2), 1692(e)(5), and 1692e(8) of the FDCPA, which regulate debt collection.

The Court began its analysis by discussing the general rules regarding implied repeal. If a party claims that a later enacted statute creates an irreconcilable conflict with an earlier statute, then the court must decide whether the later statute has impliedly repealed all or part of the earlier statute. National Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 662-63 (2007). The Court noted that courts generally disfavor implied repeal. If there is no affirmative showing of an intent to repeal, then implied repeal is only justified if the earlier and later statutes are irreconcilable. Morton v. Mancari, 417 U.S. 535, 550 (1974).

The Court then went on to apply these rules to the bankruptcy context. If a party claims that a later enacted Bankruptcy Code statute creates an irreconcilable conflict with an earlier statute, then the court must differentiate between claims brought under the earlier statute while bankruptcy proceedings are pending and claims brought after discharge. The Second Circuit had previously decided that the FDCPA does not allow lawsuits on claims that are based on acts that allegedly violated the Bankruptcy Code if they are brought while bankruptcy proceedings are pending. Simmons v. Roundup Funding, LLC, 662 F.3d 93, 96 (2d Cir. 2010).

The Court held first that the § 524(a) of the Bankruptcy Code does not broadly repeal in the FDCPA in the context of FDCPA claims based on conduct that would violate the discharge injunction under § 524(a) of the Bankruptcy Code. The Court found no irreconcilable conflict between post discharge remedies under the Bankruptcy Code and the FDCPA, reasoning, “[t]here is no reason to assume that Congress did not expect these two statutes to coexist in the post discharge context.” In the post discharge context, the bankruptcy court no longer protects the former debtor. This factor was central to the Court’s reasoning in Simmons in holding that the Bankruptcy Code precludes FDCPA claims where they are brought during the pendency of bankruptcy proceedings. Additionally, the Court noted that § 524(a) of the Bankruptcy Code does not provide a clear cause of action for violations of the discharge injunction.

For the second issue, the Court held that the Bankruptcy Code did not impliedly repeal Plaintiff’s claim that Defendant’s attempt to collect her discharged debt violated §1692e(11) of the FDCPA. This statute requires debt collectors to provide mini-Miranda warnings in initial communications with debtors. The Court reasoned that Defendant’s communication constituted an attempt to collect a discharged debt, in violation of the Bankruptcy Code’s discharge injunction, as well as the FDCPA’s mini-Miranda requirement.

In addressing the third issue, the Court held that the Bankruptcy Code did not impliedly repeal Plaintiff’s claims that Defendant’s attempt to collect her delinquent post bankruptcy monthly payments constituted a violation of  § 1692e(11) and § 1692g(a)(3) of the FDCPA. The latter of these provisions requires debt collectors to provide debtors with timely notice of the opportunity to dispute a debt. The Court again found that Defendant’s alleged violations of these provisions did not conflict with any provisions of the Bankruptcy Code.

Finally, the Court held that the Bankruptcy Code did not impliedly repeal Plaintiff’s claim that Defendant’s attempt to collect her discharged debt violated §§ 1692e, 1692e(2), 1692(e)(5), and 1692e(8) of the FDCPA. These provisions regulate the collection of debt. The Court reasoned that a loan servicer could avoid violating the FDCPA provisions as well as the Bankruptcy Code by simply refraining from attempting to collect discharged debt. Thus, when Defendant tried to collect the discharged debt, it risked violating the FDCPA as well as the Bankruptcy Code, and there was no conflict between the statutes.

The Court reversed and remanded the District Court’s dismissal of Plaintiff’s claims and instructed the District Court to reinstate all of Plaintiff’s claims.

Davis v. South Nassau Communities Hospital

— by Anna McGinty

Abstract

A bus driver, Plaintiff, alleged that the Defendant South Nassau Communities Hospital treated a third party with medication that affected her ability to operate an automobile and due to that impairment she was involved in an accident with the Plaintiff bus driver. The court determined that Defendant did in fact have a legal duty of care.

 

***

 

A bus driver, Plaintiff, alleged that the Defendant South Nassau Communities Hospital treated a third party with medication that affected her ability to operate an automobile and due to that impairment she was involved in an accident with the Plaintiff bus driver. The Court determined that Defendant did in fact have a legal duty of care.

 

The third party sought treatment at the Hospital’s emergency room. According to the medical records she drove herself to the Hospital where she was administered with Ativan and Dilaudid. The common side effects of Atvian include sedation, dizziness, weakness, unsteadiness, disorientation, and is described to have a sedative/hypnotic effect. Additionally, Dilaudid has two to eight times the painkilling effect as morphine and lasts for 2-4 hours. Furthermore, the label on the Dialudid medication states that it “may impair mental and/or physical ability needed to perform potentially hazardous activities such as driving a car or operating machinery.” The third party was then discharged from the Hospital an hour and a half later and she drove herself away from the facility. Nineteen minutes after discharge from the hospital she was involved in a motor vehicle accident in which the automobile she was driving crossed a double yellow line and struck a bus driven by the Plaintiff. Plaintiff described the third party as in a “state of disorientation” and “under the influence of the aforementioned drugs.”

 

The Island Medical defendants moved to dismiss the complaint for failure to state a cause of action contending that they did not owe Plaintiffs’ a duty of care as they were third parties to the treatment rendered to patient. Furthermore, the Hospital asked for the same relief. The Supreme Court granted the motion seeking dismissal of the complaint. On appeal, the Appellate Division affirmed and reasoned that because it was only the third party with the physician-patient relationship that the allegations did not support a duty of care owed by the Defendant to the injured Plaintiff.

 

The Court of Appeals historically has only expanded the existing duty of care with reluctance. The Court previously in Eiseman v. State of New York, declined to impose a broad duty of care extending from physicians past their patients to “members of the. . . community individually.” However, the Court in Purdy v. Public Administrator of County of Westchester extended the legal duty and stated that “there exists special circumstances in which there is sufficient authority to control the conduct of third persons that [have given rise to] and a duty to do so.” The Court indicated that those circumstances exist where there is a relationship between the defendant and a third person whose actions expose the plaintiff to harm such as would require the defendant to attempt to control the third person’s conduct. Here, the Court stated that to simply take the step of administering the medication without warning the third party about the disorienting effects of the drug was to create a danger that affected all motorists in the third party’s vicinity. The Defendants are the only ones that could have given the third party the proper warning of the negative effect of the drugs. Therefore, the Defendants had a duty to warn the third party about the effects of the drug to impair her ability to safely operate an automobile.

 

The Court observed that the cost of the duty imposed by physicians is only a small one. For example, where a medical provider administers to a patient medication that impairs or could impair the patient’s ability to safely operate an automobile, the medical provider need to do no more than simply warn the patient. Furthermore, the hospital need not prevent the third party from leaving the hospital but just ensure that when the third party leaves the hospital they are warned about the effects of the medication administered to her.

 

Thus, the Court of Appeals ruled that the order of the Appellate Division should be modified, without costs, by denying the motions of the Island Medical and the Hospital to dismiss the complaint. The full opinion can be found at Davis v. South Nassau Communities Hospital, et al., 2015 WL 8789470 (N.Y. Dec. 16, 2015).

Muslim Organization Lacked Standing in Gun Store Battle

— by Nick Dwyer

Case: 

CAIR Florida, Inc. v. Teotwawki Investments, LLC, No. 15-cv-61541, 2015 WL 4571442 (S.D. Fla. Nov. 24, 2015).

 

Abstract: After a gun store owner made remarks that his store would not serve Muslim terrorists, a rightly outraged Muslim Organization challenged the store on civil rights grounds. Unfortunately, the United States District Court for the Southern District of Florida found that the organization lacked standing and dismissed the complaint.

 

In the aftermath of the incident at the recruitment center in Chattanooga, Tennessee, the owner of Florida Gun Supply declared that his store would be a “Muslim Free Zone.” This message was posted on the owner’s YouTube page and subsequently replayed on national television. The store not only exhibits and sells firearms, but also hosts gun safety and shooting classes on its ranges. The owner’s desire to prevent future terrorists from acquiring weapons apparently prompted his remarks.

The Council on American-Islamic Relations (“CAIR”) filed a complaint challenging the store. They alleged religious discrimination in violation of the Civil Rights Act of 1964. CAIR is a non-profit organization formed after 9/11 that seeks to change the stereotypes of Muslims and defend civil liberties. In their complaint, CAIR alleged that the defendant singled out Muslims, threatened and intimidated CAIR and its members, and discriminated against them. Their complaint then concluded that the organization and its constituents were injured and continued to be injured.

The defendant gun store submitted a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b). While the motion also involved issues of what a “public accommodation” is and whether the first amendment protected the store owner’s speech, the dispositive issues in the court’s order was whether the plaintiff had standing and if they demonstrated an imminent injury.

The court summarized the relevant portions of the well-known Twombly and Iqbal cases by saying that the complaint needed to provide facts beyond mere labels or naked assertions.

After a review of the pleading requirements of Rule 8 of the Federal Rules of Civil Procedure, the court relied on the requirements of standing to dismiss the plaintiff’s complaint. The court accepted the plaintiff’s statement that organizations can have standing to sue for the group of people it seeks to protect. The court stated that organizations may have standing 1) if the organization itself is injured or 2) if the organization is acting as the representative of its members who have been injured. “Organizational standing” does not relieve a party from the requirement of pleading imminent injury.

In order to have standing, a party must show 1) concrete and imminent injury in fact, 2) causation by the defendant, and 3) redressability. The court found the plaintiff’s claim lacked an imminent injury in this case. The court compared several recent eleventh circuit cases to the Lujan v. Defenders of Wildlife case. The issue in Lujan was that the two organizational members who claimed to be injured did not have a definite date that they would return to the areas of concern in the case. This was similar to an eleventh circuit case that found no standing for plaintiffs who stated an intention to protest in the future without a definite date. The court noted what it would take to have a definite injury when it referenced an eleventh circuit case finding an imminent injury to a voting rights organization because the definite date of injury was the next year’s election.

Turning to the case at hand, the court found the facts more similar to those in Lujan than the cases where imminent injury was found. The defendant pointed out that the plaintiffs had not attempted to purchase firearms, had not attempted to attend classes, nor had they stated they will attempt to do any of those activates in the future. Based on these facts, the court found that the plaintiff’s allegations of injury were conclusory and indicated a lack of standing.

In re Jaynie S.

— by Sarah Ballard

Case: In re Jaynie S., 2015 WL 8083037 (1st Dept. Dec. 8, 2015)

Abstract: Respondent-father was “clearly informed” to stop sending letters to Petitioner-mother and child and thus committed the family offense of stalking in the fourth degree when he mailed petitioner and child letters after he received a temporary order of protection, which stated that Respondent was not to communicate with Petitioner or child except as necessary to effectuate court-ordered visitation or to discuss child’s welfare, and where Respondent sent letters when there was no order of visitation in place and the contents of the letter went beyond asking for mere visitation with child or inquiring about his welfare. 

 

Summary: A father appealed an order from the Family Court, Bronx County, in which, after a nonjury trial in family offense proceeding, Diane Kiesel, J., determined that the father had committed the offenses of aggravated harassment and stalking against the mother of his child and imposed a five-year order of protection against the father.  The Appellate Division affirmed.  In doing so, it held that the father had committed the family offense of fourth-degree stalking because it could not be seriously argued that he was not “clearly informed” to cease sending petition and the child letters (see Penal Law § 120.45[2]) and that “aggravating circumstances” warranted issuance of a five-year order of protection.  Specifically, the father mailed the mother and child letters after he had received a temporary order of protection which clearly advised the father to stop sending the mother and the child letters.  Although the order did allow the father to to contact the mother “as necessary to effectuate court-ordered visitation or to discuss the child’s welfare,” at the time there was no order of visitation in place when the father sent the letters.  Furthermore, the contents of the letter went beyond asking for visitation with the child or inquiring about his welfare.  Moreover, the mother testified that receiving the letters had frightened her.

 

Former Employee who was Fired for Falling Asleep at Work Alleges Discrimination

by Adam Kuhn

 

Singh v. Covenant Aviation Sec., L.L.C., 131 A.D.3d 1158 (N.Y. App. Div. 2015).

Abstract: A former employee alleged that he was wrongfully terminated on the basis of race or national origin. The Appellate Division affirmed defendant employer’s summary judgment on New York State Human Rights Law but struck the defendant’s summary judgment on New York City Human Rights Law.

 

Plaintiff, an Indian, was employed by the defendant as an airport security guard. He fell asleep on duty and his tour supervisor reported him to the defendant’s higher-level management. The supervisor’s report resulted in the plaintiff’s firing. The plaintiff alleged that he was wrongfully terminated from employment on the basis of his race or national origin in violation of New York State Human Rights Law and New York City Human Rights Law. The Supreme Court, Kings County granted the defendant’s motion for summary judgment dismissing the complaint. Plaintiff appealed to the Appellate Division. On appeal, the issue was whether the Supreme Court correctly granted defendant’s motion for summary judgment dismissing the cause of action for (1) violation of New York State Human Rights Law and (2) violation of New York City Human Rights Law.

The New York State Human Rights Law (Executive Law § 296) provides that it is an unlawful discriminatory practice “for an employer … because of an individual’s age, race … [or] national origin … to discharge from employment such individual.” A plaintiff has the burden of showing that “(1) he or she is a member of a protected class; (2) he or she was qualified to hold the position at issue, (3) he or she was terminated from employment, and (4) the termination occurred under circumstances that give rise to an influence of discrimination.” The defendant can successfully establish a motion for summary judgment if the absence of any of these elements is proved. The defendant showed the absence of the fourth element because the plaintiff admitted he was asleep while on duty, which is a violation of company rules. He showed no evidence that his race or ethnicity played a “motivating or substantial” role in the defendant’s decision to terminate his employment. Therefore the Supreme Court properly awarded summary judgment to defendant dismissing the cause of action alleging a violation of New York State Human Rights Law.

The New York City Human Rights Law (Administrative Code § 8-107) says “it shall be an unlawful discriminatory practice … for an employer or an employee or agent thereof, because of the actual or perceived … race, creed, color, [or] national origin … of any person … to discharge from employment such person” (emphasis added). Unlike the State Human Rights Law, the City Human Rights Law says an employer may be liable for the conduct of an employee or agent when the employee or agent exercised supervisory responsibility. Compared with the State Human Rights Law, the City Human Rights Law is interpreted more broadly in favor of the plaintiff. The plaintiff wanted to hold the defendant liable for the discriminatory conduct of an employee (the tour supervisor). The City Human Rights Law requires that unlawful discrimination play “no role” in an employment decision. If the supervisor’s decision to report the plaintiff was motivated by racial or ethnic hostility, even in part, the defendant may be held liable.

The evidence showed that the defendant fired the plaintiff for falling asleep, in violation of company rules. However, the plaintiff presented evidence that his supervisor reported him to management in part out of racial hostility, and did not report other, non-Indian employees who were found sleeping while on duty. Therefore, the plaintiff raised a disputable issue as to whether his supervisor’s unlawful discrimination, which was to be imputed to the defendant, played a role in the termination of the plaintiff’s employment. Therefore, the Supreme Court incorrectly granted the defendant’s summary judgment motion dismissing the cause of action alleging a violation of the City Human Rights Law.

International Child Custody Case at the Second Circuit

by Dalya Bordman

 

Ermini v. Vittori, 758 F. 3d 153 (2d Cir. 2014).

An Italian family, parents Emiliano Ermini, Viviana Vittori, and children Emanuele and Daniele, moved to the United States from Italy in August of 2011 in efforts to find treatment for Daniele who is autistic. The family moved to Suffern, New York and enrolled the children in public school and put their home in Italy up for sale. Daniele started Applied Behavioral Analysis (ABA) therapy shortly after the family moved to New York. After a violent altercation in the U.S. between Ermini and Vittori, divorce proceedings were instituted in Italy and a temporary order of protection issued in New York gave Vittori temporary custody of the children.

In September 2012, Ermini petitioned an Italian court for an order directing Vittori to return to Italy with their children and although granted, several provisions of the order were vacated by the Court of Appeals in Rome. The Rome Order granted Vittori exclusive custody of the children and did not require her to return to Italy with the children. Ermini subsequently filed a petition in the Southern District of New York pursuant to the Hague Convention seeking the return of both Emanuele and Daniele back to Italy. In determining whether the Hague Convention applied, the district court concluded that the boys’ habitual residence was Italy and that Vittori had wrongfully retained the children in the United States without the consent of Ermini. Accordingly, the court found that the Hague Convention did apply, however, ruled in favor of Vittori’s affirmative defense that returning the children to their habitual country posed a grave risk to Daniele. Thus, the court denied Ermini’s petition to return the children to Italy without prejudice.

The Second Circuit, however, called into question the district court’s determinations that (1) the family did not change its habitual residence from Italy to the United States, and (2) that Vittori breached Ermini’s custody rights. Firstly, the Second Circuit reasoned that the family may have changed their habitual residence to the United States as they had leased a house in the United States, put their home in Italy on the market, enrolled their children in public school and extracurricular activities in the United States, planned to open a business in the United States, and shifted all of Daniele’s medical care and treatment to the United States. Additionally, both Ermini and Vittori agreed that the move could be indefinite if Daniele’s treatment was succeeding. Secondly, based on the Rome Order, in which custody of the children was granted to Vittori, the court questioned whether or not Vittori’s keeping the children in the United States against Ermini’s wishes actually breached Ermini’s custody rights, as Ermini did not have legal custody of the children. The Second Circuit, however, did not overturn the district court’s ruling on those grounds because the issues of habitual residency and breach of parental rights were complicated, and instead affirmed the district court’s decision based on the affirmative defense of grave risk of harm to the child if returned. Thus, the Second Circuit assumed, arguendo, that the family had not changed their habitual residence from Italy to the United States and that Vittori did breach Ermini’s parental rights by keeping the children in the United States. The Second Circuit then affirmed the district court’s decision denying Ermini’s petition because the grave risk of harm defense was satisfied as, (1) Daniele would face a grave risk of harm if he was taken out of his therapy in the United States, and (2) the children faced a grave risk of harm in Ermini’s custody because he was physically abusive.  The Second Circuit then amended the district court’s judgment to deny Ermini’s petition with prejudice, reasoning that the Hague Convention is used to decide instances of wrongful child removal and when the Convention is invoked, a child is returned or he is not, once that decision is made, the Convention is no longer needed in that situation. Thus, the court affirmed the district court’s decision and amended its judgment to deny Ermini’s petition with prejudice.

Mental Illness and Prison Reform

by Aaron Lawson

Summary

In New York State, “nearly one-third of…prisoners in solitary confinement have been diagnosed with either schizophrenia or bipolar disorder.”[1] Mentally ill prisoners fall into a vicious cycle where they are placed into solitary confinement because their mental illness limits their ability to conform to prison regulations. These inmates often find it difficult to “follow straightforward routine orders to sit down, to come out of a cell, to stand up for the count, to remove clothes from cell bars, or to take showers.”[2] As a result, mentally ill inmates are disproportionately and unjustly punished by placement in isolation. Solitary confinement then worsens their condition, resulting in more prison violations and a lengthier sentence.

A Washington Law Review article published this past June outlines the Americans with Disabilities Act (ADA) and Rehabilitation Act’s potential application in releasing mentally ill inmates from solitary confinement. Solitary confinement is a disciplinary procedure that was originally used from the early 1700s to the late 1800s, and fell out of favor as it was mentally “too severe” and “immeasurably worse than any torture of the body.”[3] However, the 1980’s introduced super maximum security (“supermax”) prisons that are designed for indefinite solitary confinement.

Today there are an estimated 25,000 prisoners in supermax prisons. “Solitary confinement is linked to suicidal thoughts, impaired concentration, confusion, depression, anxiety, paranoia, and hallucinations.”[4] Treatment options are limited by lack of access to health care professionals and group therapy sessions.

Despite these historical and medical findings, solitary confinement has not been considered an Eight Amendment violation. (However, the author notes a few exceptions for “Eighth Amendment challenges to solitary confinement for the mentally ill [in] class action suits.”)[5] Eighth Amendment claims require proving (1) subjective intent; (2) qualified immunity; and (3) subjective deliberate indifference, which the ADA and Section 504 have no such requirements:

“Disability discrimination claims against jails or prisons fall under Title II of the ADA, which prohibits discrimination by any ‘public entity.’ Public entities are defined as ‘any department, agency, special purpose district, or other instrumentality of a State or States or local government.’ In Pennsylvania Department of Corrections v. Yeskey, the Supreme Court confirmed that ‘[s]tate prisons fall squarely within the statutory definition of “public entity.”’ Federal prisons are not covered under the ADA, but are covered under Section 504 of the Rehabilitation Act for the purposes of injunctive relief. Private prisons may be covered under both Title II and Title III, the title that prohibits discrimination in ‘public accommodations.’”[6]

Title II additionally requires that these prison services, programs, and activities be administered in “the most integrated setting appropriate.”[7] Because most facilities house a disproportionate number of mentally ill inmates in solitary confinement, this disparate impact alone may be enough to demonstrate a violation of the ADA.

However, disability rights claims have disadvantages as well. Prisons and jails may be able to claim solitary confinement is a “legitimate safety requirement” grounded in an “actual risk” in order to operate its “services, programs, or activities.”[8] In addition, solitary confinement may be justified if the inmate poses a “direct threat to the health and safety of others.”[9] Class certification is another challenge because a group of inmates’ individualized “mental illness” may not create a “common claim of discrimination and a common solution.”[10]

The author concludes by highlighting other measures both states and prison guard unions are taking to minimize the use of solitary confinement. Overall, the article provides a resourceful outline for expanding the ADA and Rehabilitation Act into prison reform.

[1] Jessica Knowles, “The Shameful Wall Of Exclusion”: How Solitary Confinement For Inmates With Mental Illness Violates The Americans With Disabilities Act, 90 Wash. L. Rev. 893, 896 (2015).

[2] Id. at 935.

[3] Id. at 899-902.

[4] Id. at 907.

[5] Id. at 912-14.

[6] Id. at 915-16.

[7] Id. at 935-36.

[8] Id. at 921.

[9] Id. at 921.

[10] Id. at 922.