Print All  |
|||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
August 2010 IssueThe Gavel: Pleased and Honored to Serve Bankruptcy Clerk’s Corner: Ralph Regula Federal Building and U.S. Courthouse – Canton, Ohio The American College of Trial Lawyers Code of Pretrial and Trial Conduct FBA-NDOC Joins in Hosting Memorial Tribute The Most Powerful Federal Venue Statute of All FBA Mid-Year Meeting in Arlington Title II of the Genetic Information Nondiscrimination Act of 2008: Beyond the Surface While you were pleading: The Iqbal effect The FBA-NDOC’s New Lawyer Training Seminars a Win-Win Sixth Circuit Judicial Conference Roundup U.S. v. Stevens: A Dog Gone Shame? Brown Bag Lunch with Judges Cook and Lioi University of Toledo College of Law Hosts Military Commissions Act Symposium Chapter’s Quarterly Breakfast a Great Way to Network Chapter's Tribute to Judges Carr, Gallas and Perelman Cleveland Chapter Trains the Next Generation of Trial Lawyers Greenwashing Class Action Lawsuits Information |
Federal Bar Association Northern District of Ohio Chapter | www.fba-ndohio.org | (877) 322-6364
|
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
|
Judge David Dowd swears in Chief Judge Solomon Oliver Jr. |
Judge Solomon Oliver Jr. was sworn in as the new Chief Judge of the U.S. District Court for the Northern District of Ohio during a ceremony on Friday, June 25, 2010, in the ceremonial courtroom of the Carl Stokes Court House in Cleveland.
Judge Oliver replaces Judge James G. Carr who went on senior status effective June 1, 2010, and will be a professor at the University of Toledo College of Law.
President William Jefferson Clinton appointed Judge Oliver to the federal bench in 1994. Previously, Judge Oliver was a professor of law at Cleveland-Marshall College of Law, and an assistant U.S. attorney in the Office of the U.S. Attorney in Cleveland, serving as Chief of the Civil Division and Chief of the Appellate Litigation. He served as a law clerk for the late Judge William H. Hastie of the U.S. Third Circuit Court of Appeals.
Judge Oliver received his B.A. from the College of Wooster (1969), where he serves as a member of the Board of Trustees. He received his J.D. from New York University School of Law in 1972.
United States District Judge David Dowd—a fellow graduate of the College of Wooster—swore in Judge Oliver.
An overflow crowd heard Judge Oliver’s brother Paul, a partner with an Atlanta law firm, who reminisced about Judge Oliver’s early years growing up in Bessemer, Alabama, one of 10 children of parents—a stay at home mother and steelworker/preacher father—who had great pride and high expectations for the family. Living in the midst of the segregated south in the ‘50s and ‘60s was difficult for the family, he noted, but all 10 children graduated from high school and attended higher education.
United States Magistrate Kenneth McHargh—a former classmate of Judge Oliver’s at the College of Wooster—praised Judge Oliver as a man of high principal and calm demeanor, who was respected for those qualities even as a college student by faculty and students alike.
Chaka Patterson, Vice President and Treasurer of Exelon Corporation, was a law clerk with Judge Oliver. He discussed the powerful, positive influence Judge Oliver had on him personally and professionally.
Judge Leslie Wells, who presided over the ceremony, also praised Judge Oliver as a judge and person.
Judge Oliver thanked everyone for attending and acknowledged all that had spoken on his behalf. He also thanked his staff members and the many members of his family in attendance. He shared reflections about his personal and professional journey. Like his brother, he paid tribute to his modest, hard-working parents who instilled in him values that have been key to his success. He said he was honored to be the new Chief Judge for the District and was looking forward to working with all his fellow judges. Judge Oliver also noted that he is looking forward to working with the FBA-NDOC as well as the local bar associations. Following the ceremony, he thanked the FBA-NDOC for being a sponsor of the reception—along with the Cleveland Metropolitan Bar Association and Norman S. Minor Bar Association. Judge Oliver’s speech is reprinted in full in “The Gavel” section of this newsletter.
The ceremony ended with a processional of judges led by Christian Hunter, a College of Wooster graduate playing “Scotland the Brave” on the bagpipes, wearing a College of Wooster kilt.
The Gavel: Pleased and Honored to Serve
By Solomon Oliver Jr., Chief Judge, U.S. District Court for the Northern District of Ohio
Edited remarks of Chief Judge Solomon Oliver Jr. given at his swearing-in ceremony on June 25, 2010, upon becoming the 11th Chief Judge of the United States District Court for the Northern District of Ohio.
I thank you all from the bottom of my heart for being here. This is meant to be not just my swearing-in ceremony, but a celebration of our court as you will see and hear as we progress from here to the reception. Some of you may remember my Investiture 16 years ago so you know that I was raised in Bessemer, Alabama and come from a large family. I have five brothers and four sisters. In recounting that day, I have heard some say that I individually introduced all 100 of my relatives who were present. I must confess that it’s probably true for I am as proud of them as they are of me. Today, for the sake of time, I will not introduce all of them individually. But in addition to my wife Louisa, our sons, Michael and Jon, and my brother Paul, my sister Eunice is here from Alabama with her husband Alexander and their son, Chip, daughter-in law, Cathy, and grandson, Parker. Also here from Alabama is my baby brother Nathan and his wife Carol. My other brothers and sisters and their families are with us in spirit. Also present with me are a number of Cleveland relatives, both on my mother’s side and my father’s side of the family. Louisa’s sister Elizabeth and her family, Lu and Emma, are present, as are her cousin Cathy and her family, Sean and Samantha. I am happy they could all be with me.
|
Chaka Patterson, Chief Judge Oliver, Paul Oliver, and Judge McHargh |
My brother Paul has told you about our growing up in thoroughly-segregated Alabama. He also told you how our father, a steelworker who later became a minister, and our mother, who worked in the home, prepared us for future opportunities they hoped and prayed would be ours; opportunities they never had because of their race. Paul, as are my other brothers and sisters, is modest–it was the way of my father and mother. Growing up in the segregated South of the '50s and early '60s, he was raised by our parents, as the rest of us were, to have more confidence than he appeared to be entitled to based on the then-existing societal conditions. He proved to be a stiff competitor early and determined before I did that he wanted to be a lawyer. Paul was successful in his 10th grade year in a nationwide competition to attend a summer enrichment program at Yale, called Yale Summer High School. He was then recruited by some of the top New England prep schools, including Choate and Westminster Preparatory School in Simsbury, Connecticut. Choate concluded he would need an extra year of high school since he came from a poor, all-black and inferior school of the segregated South. He was having none of that, choosing to attend Westminster, where he finished his last two years of high school while lettering in three sports. Next, he was on to Yale and to Harvard Law School. He has now been an outstanding litigator and an employment lawyer for more than 35 years. I tell his story because I think it demonstrates that when children are taught to believe in themselves, no matter what color, and are provided opportunities, they can excel.
My friendship with Magistrate Ken McHargh goes back to our time at the College of Wooster. Those of you who were at his Investiture heard me describe how he was that rare student who, during the turbulent '60s, could garner the respect of his fellow African-American students, the white students and hold the respect of the administration. He displayed at that time the same steady calmness that he displays as a judge today.
Chaka Patterson was one of my first law clerks. I am proud of him as I am of all of my law clerks. When the next two come on in August, I will have had 22. They have been a very diverse lot–African-American, white American, Asian-American, vegetarian, Christian and Jew, from Cleveland State, Case, OSU, Harvard, Columbia, Georgetown, Duke and Michigan, for example. They have worked in the U.S. Attorney’s Office in Chicago, New York and Washington, taught on law school faculties, been associates and partners in large law firms, and served in the Civil Rights Division of the Department of Justice. Chaka was a partner in a large law firm in Chicago, before becoming Assistant Attorney General for Consumer Affairs in the State of Illinois. The latter post was the one he held before joining Exelon, a natural gas Fortune 100 company where he has now risen to Vice President and Treasurer. What I am most proud of is that my clerks are a racially and ethnically diverse group of people who are good human beings. I have encouraged them to pass it on, because no one can do well without some help along the way. I had my mother, father, sisters and brothers, uncles, aunts, teachers and many others. I had my friend and mentor, Dr. Ted Williams at the College of Wooster, I had Judge William H. Hastie, the first African-American to serve on a federal circuit court and for whom I clerked. I had Fred Coleman, Bill Beyer and Jim Williams, all U.S. Attorneys for whom I worked here in Cleveland. I had Judge Nate Jones, a retired U.S. Sixth Circuit Court of Appeals Judge and Judge George White, retired Chief Judge of this court and the first African-American to serve on it.
|
Chief Judge Oliver is sworn in by Judge Sam Bell on 6/1/10 in advance of the 6/25/10 swear-in and celebration |
Now let me go more directly to the business at hand. I am very pleased and honored to serve as the 11th Chief Judge of the United States District Court for the Northern District of Ohio. I not only have outstanding colleagues who are committed to the oath they took to do equal right to the poor and the rich, but they are also committed - in the words of Alexander Hamilton - to being guardians of the Constitution. But we cannot do this important work that we are charged with doing without employees of the highest caliber. And, we have such employees here. So, I want our employees to understand that, while we are demanding and will push them to meet the very highest standards, what you do is so important to us and our system of justice. We have, for a lot of years, been a court that has been a national leader in many areas. Many of our judges serve and have served on the Committees of the Judicial Conference of the United States, the policy-making body for the federal judiciary which is chaired by the Chief Justice. Chief Judge Batchelder and I are the current representatives from the Sixth Circuit on the Judicial Conference of the United States. Our court was one of the first courts to develop an Alternate Dispute Resolution Program, volunteering to serve as a national demonstration district under the Civil Justice Reform Act of 1990, which require courts to develop mechanisms to reduce cost and delay in the federal judicial system. We were the first, or one of the first, to develop the electronic filing an¬¬d docketing system, and we have been in the forefront in providing electronic courtrooms for easier and more comprehensible presentation of cases. I think you can see some of that technology at use today.
In the criminal area, we are also coming to understand as a court, and I hope society at large comes to this conclusion, that though we have an obligation to punish those who commit crimes, that we must do more to rehabilitate and restore prisoners when they return to society. It is in all of our best interests to do so. So we have, with the help of our staff, designed and begun implementation of several important programs to address these issues. We have developed an Offender Workforce Program, which has several components, including a career resource room, prepare for success classes, an adult literacy program, a GED program in partnership with Cuyahoga Community College, training programs and Employer Outreach Programs. We just recently developed what we call a Reentry Court in Toledo. We have just started a second program in Cleveland this month. We plan to do the same in Akron at a later time. The program works with our most high-risk offenders when they come out of prison and on supervision. It is a team approach involving the court, the U.S. Attorney’s Office, the Federal Public Defender’s Office and the U.S. Pretrial Services and Probation Office. The Program requires attendance at monthly meetings. At each meeting individual goals are set and progress is measured. If an offender is successful, awards in the form of acknowledgment, support and encouragement is given. If an offender successfully completes the Program, his period of supervised release is reduced.
Project Penalty Awareness is the Northern District of Ohio’s federal drug prevention program. Its purpose is to educate the public about federal drug trafficking offenses and penalties. The target audience includes groups that may be predisposed to engage in drug trafficking offenses, such as juveniles, gang members, drug users, and individuals with prior drug convictions. The Cleveland Municipal School District continues to be the Cleveland Office’s biggest audience with over 50 presentations given last year, mostly to 7th and 8th grade students. The Cleveland Office has also presented at the Cuyahoga County Juvenile Detention Center to incarcerated juveniles ages 12 - 17. In addition, we continue to make presentations at local drug rehabilitation centers. Presenters of this program hail not only from the U.S. Pretrial Services and Probation Office, but also include U.S. Magistrate Judges, U.S. District Judges, chambers staff, U.S. Clerk of Court employees and local attorneys.
So you see I am very excited about what we are already doing and am sure that as a court there will be many more initiatives as we move forward together. As Chief Judge, I am confident that we will continue to thrive as a District with our first priority always being to be a place where justice both appears to be done and is being done.
God bless you all and may God bless America.
Judge Oliver received his B.A. degree from the College of Wooster and his J.D. from New York University. He was appointed to the U.S. District Court for the Northern District of Ohio in May of 1994. Previously, he served as Associate Dean and Professor of Law at Cleveland-Marshall College of Law.
He also served as Chief of the Civil Division and Chief of Appellate Litigation in the U.S. Attorney’s Office in Cleveland. Judge Oliver clerked for the late William H. Hastie of the U.S. Court of Appeals for the Third Circuit. He served as Secretary to the Council of the American Bar Association’s Section of Legal Education and Admissions to the Bar, and Co-chair of the Litigation Section’s Minority Trial Lawyer Committee. He is a member of the American Law Institute, the Board of Trustees of the College of Wooster, and the Judicial Conference of the United States.
Oliver received the Distinguished Alumni Award from the College of Wooster and from NYU’s Black, Latino, Asian Pacific American Law Alumni Association. His most recent publication is a chapter on summary judgment in a six-volume treatise entitled, Business and Commercial Litigation in Federal Courts.
Bankruptcy Clerk’s Corner: Ralph Regula Federal Building and U.S. Courthouse – Canton, Ohio
By Ken Hirz, Clerk of Court, U.S. Bankruptcy Court, Northern District of Ohio
The Canton office of the U.S.Bankruptcy Court for the Northern District of Ohio relocated to the Ralph Regula Federal Building and U.S. Courthouse on June 1, 2010. The relocation to 401 McKinley Avenue, SW, from the Frank T. Bow Federal Building in downtown Canton, Ohio, was monumental compared to the short two-block distance between the two buildings.
|
Entrance to the new bankruptcy court house. |
The stage was set in 2001 when a resolution by the Committee on Transportation and Infrastructure of the U.S. House of Representatives asked the General Services Administration (GSA) to investigate the feasibility to construct a new facility to house the U.S. Bankruptcy Court and other federal agencies in Canton, Ohio. The other agencies located at the Bow Building at the time included the U.S. Marshal Service, the U.S. Trustee and the Internal Revenue Service. The building was reported as 54 percent vacant. There were several problems with the Bow Building, including the courtroom being undersized per the requirements of the U.S. Court Design Guide standards, the building shell being in need of costly repairs, and the building infrastructure not meeting current standards for quality, efficiency, size and security. The building failed to provide secured parking, stairwells or corridors. It lacked a comprehensive security system, closed circuit television, intercoms and other security devices. A complete infrastructure replacement for the building was needed, including replacement of the boiler and chiller; complete upgrade to the electrical system; upgrade of the heating, ventilation and air conditioning; elevator enhancement and modernization to extend the elevator to the second floor of the building; and design and renovation of all entrances, exits, corridors, and restrooms for ADA compliance. The exterior conditions of the building were considered poor due to severe spalling of the sandstone façade, and the motor joints were badly deteriorated in many areas. This 1933 building was considered outdated in so many respects that the cost of renovation outweighed the useful value of the building. GSA, the government’s landlord, later declared the Frank T. Bow Federal Building as a Tier 3 building, a nonperforming asset, in which the operations and maintenance of the building costs, estimated at more than $6 million, outweighed the rent paid to GSA. GSA accordingly decided to abandon the building and relocate the existing federal agencies.
By 2003, GSA began to work with the City of Canton to secure the 4.5 acres that became known as the Canton Federal Center. The site is bordered by Third Street to the north, Fifth Street to the south, High Street to the west and McKinley Avenue to the east. GSA, using its Design Excellence Program and Source Selection Process in connection with the lease procurement process, issued a Solicitation for Offers (SFO) and invited developers, architects, and builders to bid for the project to build the Canton Federal Center to house federal agencies from the Bow Building, in addition to the Social Security Administration.
Carnegie Management and Development Corporation, doing business as Fedcar Company, Ltd., of Westlake, Ohio, was the successful bidder for the Canton Federal Center project. Groundbreaking took place on Dec. 11, 2008, in a ceremony recognizing Congressman Ralph Regula’s long commitment to this project and his assistance to the City of Canton and GSA. Other speakers at this ceremony included Canton Mayor William J. Healy II; GSA Regional Administrator James C. Handley; Judge Russ Kendig of the U.S. Bankruptcy Court; Dennis P. Saunier, President and CEO of the Canton Regional Chamber of Commerce; and Stephen Perry, former director of GSA. This event was the first time the developer’s design was shared with the public.
The new Federal Center opened on June 1, 2010, and is named in honor of former Congressman Ralph Regula, who served the people of the 16th District for the state of Ohio for 36 years and was instrumental in bringing this project to fruition. The facility features two, two-story buildings connected with a 30-foot high, glass enclosed lobby. The large plaza of approximately 15,000 square feet designates the public entrance to the lobby at the corner of McKinley Avenue and Third Street. The buildings include a brick and cast stone façade accented with metal panels. The Bankruptcy Court, U.S. Marshal Service, and U.S. Trustee meeting rooms are contained in one building of approximately 20,000 square feet. The second building, housing the Social Security Administration and Internal Revenue Service, contains approximately 25,000 square feet, for a total of 45,000 square feet of building space and 129 parking spaces, at a cost of approximately $14 million. Public parking is available off the Third Street entrance.
|
View of the bench in the new court room. |
The building is designed in a clean, transitional style. The exterior beige brick was produced locally through Belden Brick, which has been making brick products in Canton for more than 125 years. The site is beautifully landscaped by Rice’s Nursery, another local business. Along with the use of numerous local manufacturers and skilled workers, the Ralph Regula Federal Building and U.S. Courthouse is targeted to be a LEED (Leadership in Energy and Environmental Design) silver facility. This is a reflection of the commitment by the federal government to create energy efficient workspaces for the federal workforce.
The interior of the facility continues in the transitional style. The glass lobby becomes an extension of the exterior through the inclusion of the beige Belden brick. The lobby floor and walls are finished in granite and contain etched glass seals of the primary federal tenants in each facility. The bankruptcy court building interior continues the use of granite in the interior lobby, complemented with the use of cherry wood throughout. The bankruptcy court courtroom is a design-guide standard 1,800 square feet, finished in cherry and anigre wood with a feature wall of granite and blue quartz. The courtroom is also complemented with a court seal of etched glass behind the judge’s bench. It features two counsel tables, a height-adjustable podium, and state-of-the-art technology to assist attorneys in the presentation of their cases before Judge Russ Kendig. The audio-visual system will allow digital recording of all proceedings, audio and video conferencing, and video evidence presentation.
|
View of counsel tables in new bankruptcy courtroom. |
The staff office spaces provide natural light to be enjoyed by all employees as well as work areas, meeting rooms, and training facilities. The Canton office of the U.S. Bankruptcy Court is the digital heart of the Northern District of Ohio. Virtually all bankruptcy filings are accomplished electronically and the Canton office maintains this critical digital record. The new facility includes a server room, which houses all of the necessary computer servers, to maintain this digital information. It is housed in a properly maintained climate in a secure facility with appropriate redundancy for this important infrastructure that is critical to the court’s mission.
By the time of the publication of this article, the scheduled July 16, 2010 dedication ceremony will have taken place for the Ralph Regula Federal Building and U.S. Courthouse. Scheduled speakers include former Congressman Regula, Judge Kendig, Dr. Rustom Khouri, President and CEO of Carnegie Management and Development Corporation, and Canton Mayor Healey. GSA Region 5 Acting Regional Administrator David Hood will serve as the emcee for the program.
|
Judge Vernelis K. Armstrong |
|
Judge Jack Zouhary |
Building Reentry Bridges
By Magistrate Judge Vernelis K. Armstrong and Judge Jack Zouhary, U.S. District Court for the Northern District of Ohio
In March 2009, the Toledo federal judges initiated a reentry court. The program is named STAR: “Successful Transitions— Accelerated Reentry.” The program, a collaborative approach to assist ex-offenders who are reentering society after serving prison terms, was modeled after other programs, such as drug courts, but the emphasis is much broader than merely assisting those who have a drug addiction. Before describing the Toledo program, some background is required.
There are more than 9.8 million people in prison around the world and almost half of them are in three countries:1
United States 2.3 million
China 1.6 million
Russia 0.9 million
To give those numbers further meaning, the prison rate per 100,000 of population is as follows:2
United States 756
China 119
Russia 629
That means 1 of every 131 Americans has been incarcerated at some point in their lives.
Currently there are 5 million Americans on probation or parole.
In the federal prisons, there are now 210,000 inmates. This number is 37 percent over capacity and is expected to grow an additional 7,000 this year.3 More than one-quarter of federal prisoners are non-citizens and there has been a 45 percent increase in immigration crimes from 2008 to 2009. The top five categories of federal crimes in 2008 are broken down as follows:4
Drugs 33%
Immigration 28%
Firearms 11%
Fraud 10%
White Collar 4%
There is a cost to all of this, at both the federal and state levels. Ninety five percent of felony offenders are convicted in state courts. State corrections costs rank near the top of state budgets, rivaling health care, education, and transportation. The Ohio Department of Rehabilitation estimates that the average cost per inmate is nearly $75 a day or about $27,000 annually—similar to cost estimates for federal inmates.
In the federal system, more and more offenders are returning home from prison under supervision. Unfortunately, within three years of release, two-thirds of all ex-offenders are rearrested, and half of all ex-offenders return to prison on a new conviction or parole violation.
One of the goals of our reentry court is to help meet the needs of ex-offenders, thereby reducing recidivism and taxpayer costs. This is a logical extension of Bureau of Prison educational, vocational and treatment programs that assist inmates.
STAR utilizes a variety of services, including the Northwest Ohio Reentry Coalition. The Coalition partners with government entities, faith and community-based organizations, and other stakeholders to assist offender reentry. The assistance includes education, health services, alcohol and other drug treatment, job training, mentorship, transportation and housing.
The STAR program begins with a risk assessment by the Probation Office of those offenders scheduled to be released from the Bureau of Prisons. Selection is based upon risk of re-offending, need for treatment, and history of violence. Membership can also be encouraged by a referral from a judge.
Ex-offenders who are aware of the program may volunteer. But Probation first determines who will be admitted to the program.5
The STAR team includes judges (Verne Armstrong and Jack Zouhary), and representatives from the Probation Office (Eric Corns and Lewis Simpson), U.S. Attorneys (David Bauer and Ava Dustin) and Public Defenders (Donna Grill and Andy Hart). Lewis Simpson is the lynchpin of our program’s success. He has regular contact with the ex-offenders and leads the monthly discussion where the progress of each participant is reviewed.
Attendance at monthly meetings is required for the ex-offender. Family and friends are encouraged to attend as well. Community agencies, that may be able to assist, join the monthly meetings. These meetings include rewards and sanctions for the ex-offenders. A “star” is awarded each month if a participant meets his or her goals. If an ex-offender receives a star for 12 straight months, he or she then “graduates” and receives a shortened period of supervision along with other recognitions and gifts. Participants who fall short receive sanctions, ranging from a warning, to ouster from the program, or any of the usual penalties for violating supervised release, including a return to prison.
The federal government is paying closer attention to reentry courts. The Senate Judiciary
Committee recently voted to create a Blue-Ribbon Commission to study why the United States has the highest reported incarceration rate in the world and why prisons are filled with a large number of non-violent offenders. Last year the House held seven hearings to focus on reentry issues, and approved $25 million for Second Chance Act programs. Alternatives to incarceration are being investigated by states that are out of both beds and money.6
The key to successful reentry is planning by the offender well before release from prison. Indeed, judges should start the process at the time of sentencing. A judge can encourage defendants to begin to plan for release. Unless the groundwork is laid well in advance of release, many ex-offenders will return to their old ways — the streets, the friends, and the poor choices that push the revolving door back to prison.7
Common sense holds that ex-offenders who “get no more than a bus ticket and pocket money when they emerge from prison” are less likely to succeed than those who have a support system in place.8 STAR seeks to provide the support that may be missing in the lives of many ex-offenders, thereby improving their chances for success upon release — success not only for themselves and their families, but also for the community to which they return.
1 World Prison Population List.
2 Id.
3 3/18/2010 Courthouse News Service.
4 World Prison Population List.
5 3/18/2010 Courthouse News Service.
6 New York Times Editorial 2/4/2010.
7 Id.
8 Wall Street Journal Editorial 3/20/2010.
Judge Jack Zouhary was appointed a federal district judge in Toledo in 2006. Previously, he served as a Lucas County Common Pleas judge; General Counsel for S. E. Johnson, a company involved in highway construction and quarry operations in Ohio, Michigan and Indiana; and in private practice as a trial lawyer for many years.
Magistrate Judge Vernelis K. Armstrong was sworn in as a United States Magistrate on September 26, 1994. Prior to her appointment, Armstrong served for 15 years as an assistant U. S. attorney for the Northern District of Ohio. Before entering federal government service, Armstrong maintained a limited general practice from 1973 to 1979
The American College of Trial Lawyers Code of Pretrial and Trial Conduct
By Harry D. Cornett Jr., Partner, Tucker Ellis & West LLP
A few years ago, I was getting ready for the trial of a legal malpractice case. We were conducting a mock jury exercise, and we were watching the jury on closed circuit television. The good people acting as jurors were sitting around a conference table discussing the testimony of the lawyer-defendant. One older gentleman observed to the group “Well, I don’t know whether I believe that lawyer or not but we all know that lawyers are paid to lie.” All of the other heads around the table nodded in agreement. Watching that mock jury reminded me of what I was told by a senior trial lawyer just before my first trial. He said that the most important quality of a trial lawyer is sincerity and once you learn to fake that you’ll have it made.
Lawyers faking sincerity and the public concluding that lawyers are paid to lie may be indications of the same disease: unprofessionalism. In the case of Dondi Properties Corporation v. Commerce Savings & Loan Association, 121 F.R.D. 284 (N.D. Tex. 1988), the federal judges in the Northern District of Texas sat en banc to adopt standards of litigation conduct for attorneys appearing in civil actions in the Northern District of Texas. This remarkable decision was a result of increasing frustration by the judges with unprofessional litigation tactics. Attached to the decision is a portion of the American College of Trial Lawyers Code of Pretrial and Trial Conduct (rev. 1987). As Chief Justice John Roberts said in his preamble to the latest revision of the Code:
For more than fifty years, the American College of Trial Lawyers has promoted professionalism in the conduct of trial litigation. Its authoritative Code of Trial Conduct, first published in 1956, has served as an enduring landmark in the development of professional standards for advocates.1
Today there are more than 5,700 Fellows of the American College of Trial Lawyers (ACTL) spread across the United States and Canada. Membership can never be more than 1 percent of the total lawyer population of any state or province. Fellowship is extended only by invitation after careful investigation to trial lawyers with at least 15 years experience and whose professional careers have been marked by the highest standards of ethical conduct, professionalism, civility and collegiality. The College includes advocates who represent plaintiffs or defendants in civil proceedings as well as prosecutors and criminal defense lawyers.
The purpose of this article is to familiarize the reader with the ACTL’s 2009 Code of Pretrial and Trial Conduct (the Code). To further wide dissemination of the Code to judges, lawyers and law students the College makes the Code available on its website, www.actl.com, or you can obtain reprints directly from the College office in Irvine, California. U.S. District Judge Jack Zouhary (Toledo), currently serving as Chair of the ACTL Judiciary Committee, keeps copies of the Code in his chambers and requires pro hac vice lawyers to read it.
The Code consists of nine sections ranging from “Qualities of a Trial Lawyer” to “Trial”. Although I strongly encourage reading of the entire Code (it is only 10 pages), I have selected some brief quotations to give the reader a feel for the subjects covered by the Code.
Qualities of a trial lawyer
Lawyers who engage in trial work have a special responsibility to strive for prompt, efficient, ethical, fair and just disposition of litigation.
A lawyer must in all professional conduct be honest, candid and fair.
These quotes illustrate that the conduct espoused in the Code is clearly aspirational. Are clients primarily concerned about “fair and just disposition” of their cases? Do clients ever urge their attorneys to delay a lawsuit and work the case in a manner that causes the opponent to run up unnecessary legal fees? Individual clients, for the most part, care only about their individual cases. They do not have concerns about the overall system of justice. Institutional clients might take a larger view towards litigation than individuals, but that view is based on the business realities for that particular institution. A particular company might want to avoid negative publicity that would be generated by particular types of Rambo litigation tactics. On the other hand, institutional clients might have a policy to fight every case to the end, sparing no expense, to discourage other claimants in the future. But again, institutional clients by and large are not concerned with the operation of the overall system of justice. Lawyers have a unique role in seeing that the system of justice operates fairly and efficiently. Blind acquiescence to every demand of the client will undermine the performance of that role.
Obligations to clients
A lawyer has an obligation to undertake unpopular causes if necessary to ensure justice. A lawyer must maintain an appropriate professional distance in advising his or her client, in order to provide the greatest wisdom.
Obviously, a lawyer could practice ethically for an entire career without once taking on an unpopular cause. And yet the Code recognizes that all clients are entitled to representation by a skilled lawyer, even those with unpopular causes. The second sentence quoted above is also important as a matter of professionalism. Many lawyers do get too close to their clients and fail to keep that appropriate professional distance.
Obligations to colleagues
A lawyer should not make disparaging personal remarks or display acrimony toward opposing counsel, and must avoid demeaning or humiliating words in written and oral communication with adversaries.
Attacking the adversary instead of dispassionately arguing the facts and law is viewed as good sport by some lawyers. Calling your opponent an outright liar is mercifully rare. Much more common is the use of phrases such as “my opponent has misrepresented” or “my opponent is being disingenuous.” Trying to be polite while you call your opponent a liar hardly changes the fact that you are making a personal attack on him or her.
Obligations to the court
A lawyer has a duty to promote the dignity and independence of the judiciary, and protect it against unjust and improper criticism and attack. A judge has a corresponding obligation to respect the dignity and independence of the lawyer, who is also an officer of the court.
Given the limited ability of judges to respond to personal attacks on the integrity of the judiciary, it is up to lawyers to respond when our judicial system is unfairly criticized. Judges should also treat lawyers with respect as fellow officers of the court.
Obligations to the system of justice
A lawyer has an obligation to promote the resolution of cases with fairness, efficiency, courtesy and justice.
The Fellows of the ACTL are justifiably concerned about what has been called the “vanishing trial.” Young lawyers today, especially in the civil practice, have a difficult time gaining the level of actual trial experience enjoyed by practitioners who grew up in the profession in earlier times. No lawyer should be reluctant to try a case if justice for the client demands it. But, as the above quote makes clear, it is the lawyer’s obligation to resolve cases fairly and efficiently, and most often that means settling the case.
As an officer of the court and as an advocate in the court, a lawyer should strive to improve the system of justice and to maintain and to develop in others the highest standards of professional behavior.
Senior lawyers should lead by example and participate in training younger lawyers. The Supreme Court of Ohio instituted a formal mentoring program for new lawyers a few years ago. This program, and similar programs around the country, allow senior lawyers to encourage the next generation of lawyers to uphold high standards of professionalism.
Motions and pretrial procedure
A lawyer should counsel the client that cooperation among lawyers on scheduling is an important part of the pretrial process and expected by the court.
Often lawyers will justify lack of cooperation with an opposing counsel by claiming that the lawyer’s client insists that the lawyer act in that manner. Lawyers should counsel their clients that reasonable accommodation of an opponent’s requests is essential to the orderly progress of a case and, indeed, will inure to the client’s benefit as the case progresses.
Discovery
A lawyer should conduct a deposition with courtesy and decorum and must never verbally abuse or harass the witness, engage in extended or discourteous colloquies with opposing counsel or unnecessarily prolong the deposition.
During a deposition, a lawyer must assert an objection only for a legitimate purpose. Objections must never be used to obstruct questioning, to communicate improperly with the witness, to intimidate, to harass the questioner or to disrupt the search for facts or evidence germane to the case.
Although in recent years many courts have attempted to rein in some of the more egregious conduct that occurs at depositions (e.g. Federal Rule of Civil Procedure 30 and Northern District of Ohio Local Rule 30.1), there is still quite a lot of room for mischief. The old trial lawyer tactic of “protecting the witness” by making “speaking objections” and instructions not to answer perfectly proper questions has no place in modern professional practice.
Relationships with witnesses and litigants
A lawyer must treat all persons involved in a case with candor, courtesy and respect for their role and rights in the legal process.
Out of pure self-interest it should be easy for a lawyer to treat a judge with candor, courtesy and respect for his role in the legal process. There are some lawyers who cannot even manage that. Many more lawyers come up short in meeting the goal of candor, courtesy and respect when dealing with opposing lawyers, parties, and witnesses. Sometimes cross-examination of a witness or a party needs to be conducted aggressively and there is nothing in the ACTL Code that counsels against effective cross-examination. But abusing a witness or a party simply because the lawyer’s client demands such conduct is not acceptable. The lawyer who revels in his ability to intimidate and inflict pain brings discredit to the profession.
Trial
A lawyer should abstain from all acts, comments and attitudes calculated to inappropriately curry favor with any juror, such as fawning, flattery, solicitude for the juror’s comfort or convenience or the like.
We have all seen trial lawyers who exhibit this kind of conduct in front of a jury. It is uncomfortable to watch and probably counterproductive for the lawyer’s client. After all, most jurors have seen late-night infomercials. Gaining the respect and trust of the judge and jury should be the goal of every trial lawyer. The way to do that is to play it straight. Present and argue the evidence in a skillful and professional manner.
In Ohio, we are all required to listen to a one hour lecture on professionalism every two years. Sometimes those lectures seem to be nothing more than a drawn-out plea to be nice to one another. The value of the ACTL Code of Pretrial and Trial Conduct is that, in its ten pages, there are specific aspirational guidelines for the conduct of trial lawyers. Every lawyer should read it.
1Message from the Chief Justice John G. Roberts Jr. introducing the American College of Trial Lawyers Code of Pretrial and Trial Conduct June 2009.
Harry Cornett is a Partner in the Cleveland office of Tucker Ellis & West LLP. He is a Fellow of the American College of Trial Lawyers and a member of the ACTL Ethics and Professionalism Committee. He has taught Ethics and Professional Responsibility to law students at both of Cleveland's fine law schools, Cleveland-Marshall and Case Western Reserve University.
FBA-NDOC Joins in Hosting Memorial Tribute
Associate Justice Terrence O’Donnell, Supreme Court of Ohio |
Continuing what has become a wonderful tradition, on April 5, 2010, the Northern District of Ohio Chapter, in tandem with the Cleveland Metropolitan Bar Association, the Ohio State Bar Association, the Norman S. Minor Bar Association, and the Asian American Bar Association of Ohio, joined to host the Annual Greater Cleveland Bench-Bar Memorial Program. The Memorial Program brings together the members of the Greater Cleveland legal community to remember and pay tribute to our colleagues in the legal profession who have passed away within the past year. The event was held in the Atrium of the Howard M. Metzenbaum U.S. Courthouse.
As always, the memorial program was well-attended my members of the bench and bar, as well as by the family, friends, and colleagues of the persons honored. It was a wonderful opportunity for the members of our legal community to join in a moving tribute to those we have recently lost. The popularity of the event is due in no small part to the participation and efforts of U.S. District Chief Judge James Carr and the other Judges of our federal court. The program began with the introduction by U.S. District Court Clerk of Court, Geri Smith, of the many judges who participated in the program, as each of them took their seats in procession. Included were Judges of the Northern Ohio U.S. District and U.S. Bankruptcy Courts, followed by numerous Judges representing the Cuyahoga County Court of Appeals, Common Pleas Court, Probate Court, and Juvenile Court, as well as Judges from the Cleveland and surrounding communities' Municipal Courts.
The tribute began with a welcome and introduction by Chief Judge James Carr of the Northern District of Ohio U.S. District Court, followed by remarks from Cleveland Metropolitan Bar Association President Mary Whitmer, Ohio Supreme Court Justice Terrence O'Donnell, Ohio Eighth District Court of Appeals Judge Melody Stewart, Cuyahoga Common Pleas Judge Nancy Fuerst, and Cleveland Municipal Court Judge Ronald Adrine. FBA Northern District of Ohio Chapter President Carter Strang then read the names of the honorees, the members of our legal community who passed away during this past year.
The event closed with reflections provided by Rabbi Richard Block of The Temple-Tifereth Israel, followed by the Journalization of the Memorials and closing remarks by Chief Judge James Carr. After the Program, the attendees gathered for a reception, held in the lobby of the Metzenbaum courthouse.
The Most Powerful Federal Venue Statute of All
By David R. Cohen, Federal Special Master
In 2003, with the stroke of a judge’s pen, the Northern District of Ohio (“NDOH”) became the new venue for what would eventually amount to more than 450 federal cases that were originally filed in other federal courts. Even more important, the judge’s order made clear that any related cases would be similarly transferred. Thus, to save time, another 12,000 plaintiffs simply filed their cases directly in the NDOH, rather than federal courts around the country that were otherwise closer or more convenient. Who was the judge, what did the order say, and why, exactly, did this happen?
The two-page order, In re Welding Rods Prods. Liab. Litig., 269 F.Supp.2d 1365 (J.P.M.L. 2003), was signed by Judge William Terrell Hodges in his capacity as then-Chairman of the U.S. Judicial Panel on Multidistrict Litigation (commonly known as “the MDL Panel”). [Mandy, global: need two spaces between sentences] As MDL Panel Chairman, Judge Hodges had the authority to invoke the most powerful federal venue statute of them all: 28 U.S.C. §1407. The power of this statute is revealed by the facts recited by Judge Hodges in his order: (1) there were only three Welding Fume cases filed in federal courts anywhere, and none was in Ohio — two were in Louisiana and one was in Mississippi; (2) while a few of the defendants were Ohio corporations, the majority of the defendants were not; and (3) for many of the soon-to-be-transferred cases, it was clear that venue in the NDOH was otherwise improper under 28 U.S.C. §1391(a).
Nonetheless, Judge Hodges ordered transfer to Judge Kathleen M. O’Malley of not only all three existing Welding Fume cases, but all future cases as well! Not only that, but the basis for his order was simply that the three existing Welding Fume cases “involve common questions of fact,” and a summary conclusion that “centralization . . . in the Northern District of Ohio will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation.” Not a very high threshold! Yet Judge Hodges’ conclusion has served to send literally millions of litigation-related dollars into the hands of Cleveland attorneys, hotels, restaurants, and — yes — the Clerk’s office at the federal court.
What was Congress thinking when it passed this most powerful venue statute in 1967? The answer is, Congress was thinking Chief Justice Earl Warren was right — certain types of cases were causing a huge drain on federal courts, and there had to be a better way to deal with them. In particular, as Justice Warren explained, there are certain instances where dozens or hundreds or even thousands of people are injured by essentially the same conduct, such as an airplane crash or an employer’s overtime-pay policy. If those thousands of injured people all file cases in different federal courts around the country, the result is a procedural mess: different federal judges will set out various and probably-conflicting discovery deadlines and rules, plaintiffs will fight each other for access to the defendants, defendants will be overwhelmed with subpoenae duces tecum, and federal courts will appear unable to do what they are supposed to be best at — resolving the biggest and most complicated of disputes. Justice Warren urged that the “better way” was to allow centralization of all the related cases in front of one federal judge, at least for pretrial purposes. By allowing transfer of venue of all cases to a single court, there could be a huge savings of total litigation effort by the parties, as well as conservation of judicial resources. Who knows — the single judge might even obtain a global settlement.
Congress liked Justice Warren’s idea, and the “MDL Statute” is the result. As noted, the requirements for transfer under §1407 are much less onerous than the “normal” venue transfer statute, §1404. For example, while §1404 provides a case must be to transferred to a district “where it might have been brought” originally, §1407 allows the MDL Panel to transfer related cases to any district at all — even one where there is not a related case already pending. While §1404 requires a court to consider a string of factors before ordering transfer of venue, including the plaintiff’s initial choice and the availability of process to compel attendance of unwilling witnesses, the MDL Panel need only determine that transfer of venue “will be for the convenience of parties and witnesses and will promote the just and efficient conduct of such actions.” Somewhat oddly, however, §1407 allows transfer only for “pretrial proceedings” — if a case doesn’t settle and the plaintiff does not waive venue, the case must be transferred back to the “transferor court”, where it was originally filed, for trial.
The MDL Panel enters an order invoking §1407 about 100 times each year, creating a new MDL that may involve only a handful of cases or, as could eventually occur in the Toyota MDL, hundreds of thousands of cases. Often, the most fought-over aspect of the MDL Panel’s decision is not whether it should centralize a host of related cases in front of one judge, but where the centralization should occur. The reason for the fight, of course, is the millions of dollars referred to above. (After the Panel has ordered centralization, the next fight is amongst counsel for leading roles in the litigation, for the same reason.)
The Northern District of Ohio has been blessed with attention from the MDL Panel, and is currently the “transferee forum” for 10 different MDL cases. In comparison, all of the federal district courts in Michigan, Tennessee and Kentucky combined are overseeing 17 MDLs. This statistic is a reflection of the high caliber of judicial officers we enjoy. The table below lists the ten NDOH MDLs.
Presiding Judge |
MDL Case Number and Name |
Cases Pending |
Total Cases |
Carr |
MDL-1953, In re: Heparin Prods. Liab. Litig. |
239 |
264 |
Economus |
MDL-1561, In re: Travel Agent Commission Antitrust Litig. |
1 |
3 |
Gaughan |
MDL-2044, In re: Vertrue Inc. Marketing and Sales Practices Litig. |
13 |
13 |
Gwin |
MDL-2001, In re: Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig. |
9 |
9 |
Katz |
MDL-1742, In re: Ortho Evra Prods. Liab. Litig. |
285 |
1,459 |
Oliver |
MDL-2003, In re: National City Corp. ERISA Litig. |
16 |
21 |
O’Malley |
MDL-1490, In re: Commercial Money Center, Inc., Equipment Lease Litig. |
25 |
38 |
O’Malley |
MDL-1535, In re: Welding Fume Prods. Liab. Litig. |
3,881 |
12,658 |
Polster |
MDL-1909, In re: Gadolinium Contrast Dyes Prods. Liab. Litig. |
495 |
580 |
Polster |
MDL-2066, In re: Oral Sodium Phosphate Solution-Based Prods. Liab. Litig. |
98 |
98 |
The formation of each of the MDL cases in this list began with a simple motion seeking transfer of venue. The final result can be stunning, such as the $4.1 billion settlement in the Vioxx MDL. The great scope and effect of 28 U.S.C. §1407, and the relatively easy transfer standard it sets, reveals that it is, indeed, the most powerful federal venue statute of them all.
David R. Cohen, Federal Special Master, was appointed by the Hon. Ann Aldrich to oversee all aspects of a mature, mass tort multi-district litigation, including settlement negotiations involving complicated insurance coverage issues for In re: Oral Sodium Phosphate Soln. Prod. Liab. Litig., MDL No. 2066 (2009 – present). He was also appointed by the Hon. Kathleen McDonald O’Malley to oversee all aspects of a mass tort multi-district litigation involving 12,000 individual actions from across the country, including putative class actions for In re: Welding Fumes Prod. Liab. Litig., MDL No. 1535 (2004 — present). He is a former member of the FBA-NDOC Board of Directors.
FBA Mid-Year Meeting in Arlington
The FBA convened its annual Mid-Year Meeting, on March 26 and 27, at the recently-opened Westin Arlington Gateway, in Arlington, Virginia. The FBA’s Mid-Year Meeting, held during the last weekend of March, is an opportunity for the FBA national officers, circuit vice presidents, chapter delegates, and other chapter leaders to discuss and exchange ideas about effective Chapter events and activities, to discuss current FBA business and initiatives, and to hopefully have a good time while doing so. The Midyear Meeting also hosts one of the two FBA National Council Meetings held each year. The other National Council Meeting occurs as part of the FBA Annual Convention, which this year will be in New Orleans from Sept. 23-25.
The first day of the Midyear Meeting, Friday, March 26, included meetings of the FBA National Board of Directors and the Federal Bar Building Corporation. Later that evening, the FBA hosted its Thurgood Marshall Moot Court Competition final round and reception, both of which were held at the historic U.S. Court of Appeals for the Armed Forces Courthouse on Judiciary Square in Washington, D.C. The USCAAF Courthouse was formerly the home of the United States Court of Appeals for the District of Columbia Circuit, from 1910 to 1951. Students from law schools around the country participate in the tournament, representing the culmination of a lot of hard work on the part of each of the schools’ participants. Among the awards this year was a second place finish for best brief, won by Cleveland Marshall College of Law students Nicole Lester and Ashley Koogler.
The second day included meetings of the Circuit Vice Presidents, the Section and Division leadership, and the Foundation of the FBA Board of Directors Meeting. Immediately following was the Chapter Leaders Update Meeting, which is the primary forum for Chapter representatives to exchange ideas on programs and events. The Chapter Leaders meeting also included an educational program on “Cameras in the Courtroom,” moderated by Bruce Moyer, who is Government Relations Counsel for the FBA. The panelists were U.S. District Court Judge Reggie B. Walton of the U.S. District Court for the District of D.C., Professor Rebecca Hulse of the William & Mary Law School, National Law Journal Supreme Court Correspondent Tony Mauro, and David Barger of the Tysons Corner office of Greenberg Traurig LLP.
The formal portion of the Midyear Meeting concluded with the FBA National Council Meeting, attended by representatives of a majority of the individual FBA Chapters from around the country, including Aaron Bulloff and James Satola on behalf of the Northern District of Ohio Chapter. One of the primary issues discussed was the introduction of a new FBA website (still found at www.fedbar.org), which actually went “live” during the writing of this article (May 25, 2010). This article originally was intended to describe the changes, but there are so many new features and improvements that it would be difficult to describe them all in a just a few sentences. Suffice it to say that the new FBA website is miles ahead of its predecessor in content, interactivity, user-friendliness, usefulness, and graphic quality. Please check it out.
Title II of the Genetic Information Nondiscrimination Act of 2008: Beyond the Surface
By Chris F. Cariño, an attorney with Brouse McDowell
When Congress passed the Genetic Information Nondiscrimination Act of 2008 (“GINA”), it sought to address employment discrimination that may stem from recent scientific and technological advances in genetics.1 While Congress did cite instances in which employers utilized pre-employment genetic testing to screen applicants, that practice was not the norm for most human resource departments.2 Indeed, according to some legislators, GINA’s true purpose was to tackle the situation now before it takes a firm hold in employment.3 A closer look at GINA’s employment provisions, however, reveals that, in addition to stunting genetic discrimination in the future, the law can greatly impact the current employment landscape.
GINA’s employment provisions became effective November 21, 2009.4 Generally, the law has two main components: discrimination and disclosure. With regard to discrimination, GINA’s anti-discrimination and anti-retaliation provisions mirror Title VII, and generally prohibit discrimination on the basis of the employee’s genetic information and retaliation against the employee for opposing an act unlawful under GINA or participating in an investigation under the Act.5 With regard to disclosure, GINA prohibits employers, with certain exceptions, from requesting or receiving genetic information.6 Additionally, to the extent they possess genetic information, employers have certain confidentiality obligations that closely resemble the confidentiality requirements under the ADA.7 On its face, these provisions embody legislators’ stated intentions. But the definition of key terms reveals that the law extends even further.
GINA defines “genetic information” to include more than just an individual’s own genetic test results. That definition also encompasses genetic tests of a person’s family members, and any manifestation of a disease or disorder in a family member.8 Further extending GINA’s reach, the definition of “family member” includes a dependent (through marriage, birth, or adoption), first degree relatives (e.g., parents and siblings), second degree relatives (e.g., grandparents, uncles, and nephews), third degree relatives (e.g., great-grandparents, great uncles, and first cousins), and fourth degree relatives (great-great grandparents, and children of first cousins).9 In other words, unless an exception under GINA applies, an employer may find itself on the wrong side of the law if it elicits information about an employee’s cousin’s son’s bout with cancer.
Given its breadth, GINA conceivably overlaps with other federal employment laws and can act as a gap-filler where those laws leave voids. For example, both the FMLA and GINA may be implicated in situations where an employee is terminated around the time that an employee cares for a family member suffering from a serious illness. If the employer terminated the employee because of the family related leave and for fear that the employee would be afflicted with the same illness and later impact health insurance premiums, then the FMLA and GINA may apply. But GINA’s reach may allow it to redress the above scenario in far more instances and provide a greater array of remedies than the FMLA.
While the FMLA applies only to employers with at least 50 employees, GINA covers employers with as few as 15 employees.10 For the FMLA, an eligible employee must work at least one year and 1,250 hours the previous year to garner its protections.11 GINA, on the other hand, protects all employees and applicants.12 As it relates to the FMLA’s leave entitlements concerning family members, that leave is limited to serious health conditions that affect spouses, children, or parents.13 As discussed above, GINA’s definition of “family members” is much more expansive.14 Finally, unlike the FMLA, successful plaintiffs may be awarded compensatory damages (e.g., emotional distress) and punitive damages under GINA.15
Another law that intersects with GINA is the ADA. Under the ADA, an employee may raise an “association” claim where an employer discriminates against “a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association.”16 While few courts have analyzed an ADA association claim, the Seventh Circuit has identified several instances in which this cause of action may exist:
-
Expense: an employee’s spouse has a disability that is costly to the employer because the spouse is covered by the company’s health plan;
-
Disability by association: one of the employee’s blood relatives has a disabling ailment that has a genetic component and the employee is likely to develop the disability as well; and
-
Distraction: the employee is somewhat inattentive at work because a family member has a disability that requires his attention, yet not so inattentive that to perform to his employer’s satisfaction he would need an accommodation.17
Since outlining these categories, however, the Seventh Circuit has noted that applying the current ADA framework in these instances is a “bit like a mean stepsister trying to push her big foot into one of Cinderella’s tiny glass slippers.”18 GINA perhaps is the shoehorn. GINA’s prohibitions seemingly would prohibit an employer from taking an adverse employment action in any of the above scenarios because the employer would be acting because of the employee’s genetic information (i.e., a family member’s manifestation of a disease).
Given its recent effective date, we do not yet know how much ground GINA will cover. But assuming it extends to the limits of its definitions, GINA need not be reserved for the future. Rather, the employment landscape will witness GINA’s impact immediately.
Endnotes
1 Genetic Information Nondiscrimination Act of 2008, H.R. 493, 110th Cong. §2(1) (2008).
2 Id.at §2(4). Genetic Non-Discrimination: Examining the Implications for Workers and Employers: Hearing on S. 1053 Before the Subcomm. on Employer-Employee Relations of the H. Comm. on Education and the Workforce, 108th Cong. (2004) (statement of Lawrence Z. Lorber, U.S. Chamber of Commerce) (“There is little to no evidence of employer collection or misuse of genetic information in today’s workplace.”).
3 154 Cong.Rec. S828, 846 (Jan. 22, 2007) (Statement of Sen. Snowe) (“And that is what makes this legislation so unique. For in the past Congress has had to act to address existing discrimination. But today we are acting proactively to address genetic bias, before discrimination becomes entrenched.”).
4 Genetic Information Nondiscrimination Act of 2008, H.R. 493, 110th Cong. §213 (2008).
5 Compare 42 U.S.C. §2000ff-1(a) (GINA’s anti-discrimination provision); 42 U.S.C. §2000ff-6(f) (GINA’s anti-retaliation provision) with 42 U.S.C. §2000e-2 (Title VII’s anti-discrimination provision); 42 U.S.C. §2000e-3 (Title VII’s anti-retaliation provision).
6 42 U.S.C. §2000ff-5(b).
7 Compare 42 U.S.C. §2000ff-5(a) (GINA’s confidentiality provision) with 42 U.S.C. 12112(d)(3)(B) (ADA’s confidentiality provision).
8 42 U.S.C. §2000ff(4)(A).
9 42 U.S.C. §2000ff(3); Regulations Under the Genetic Information Nondiscrimination Act of 2008, 74 Fed. Reg. 9056, 9058-59 (proposed March 2, 2009) (to be codified at 29 C.F.R. pt. 1635).
10 42 U.S.C. §2000ff(2)(B); 29 U.S.C. § 2611(4).
11 29 U.S.C. §2611(2).
12 42 U.S.C. §2000ff(2)(A).
1329 U.S.C. §2612(a)(1).
1442 U.S.C. §2000ff(3).
1542 U.S.C. §2000ff-6(a)(3); 29 U.S.C. § 2617(a)(1). [Mandy, fix footnote 15 superscript here]
1642 U.S.C. §12112(b)(4).
17Overley v. Covenant Transport, Inc., 178 F.App’x 488, 493 (6th Cir. 2006) (“Few courts have had the opportunity to analyze claims brought under §12112(b)(4). This court has never done so, only noting in two unpublished decisions that the statute could be used to protect against a limited set of employer actions.”). Larimer v. IBM Corp., 370 F.3d 698, 700 (7th Cir. 2004). As to the third theory, the court noted that the ADA does not require reasonable accommodations under an association claim.
18Dewitt v. Proctor Hosp., 517 F.3d 944, 948 (7th Cir. 2008).
Chris F. Cariño is focusing in the area of labor and employment law, as well as litigation. Currently, his practice includes representing employers in varying matters related to state and federal employment laws.
Law School Corner:
Cleveland-Marshall Wins Chapter’s First Law School Challenge
|
Judge White takes questions from students after panel presentation. |
Cleveland-Marshall College of Law won the Chapter’s first Law School Challenge, which was a contest to see which Northern District of Ohio law school signed up the most student members. Cleveland-Marshall signed up 35 students. The University of Toledo College of Law was second with 18 students and Case Western Reserve College of Law was third with 10 students.
Cleveland-Marshall student representatives, Drew Odum (3L) and Mona Ma (2L), and faculty representative Ken Kowalski, were awarded FBA inscribed coffee tumblers for their first place finish.
The Chapter thanks Rennillo Deposition & Discovery for reimbursing the Chapter for all of the student membership costs ($25 per student).
Law School Deans and Representatives for 2010-2011
The FBA-NDOC is pleased to announce the new Chapter representatives to its Board of Directors from its partner law schools:
University of Akron School of Law
Associate Dean William Jordan
Ellen Lander (2L)
Julie Trout (3L)
Case Western Reserve University School of Law
Professor Jonathan Entin
Britney Bennett (2L)
Melissa Yasinow (3L)
Cleveland-Marshall College of Law
Professor Ken Kowalski
George Ofor (2L)
Mona Ma (3L)
University of Toledo College of Law
Assistant Dean Heather Karns
Douglas Leavitt (2L)
Mark Abramowitz (3L)
Congratulations to the Winners of the FBA-NDOC Constitutional Law Awards
The FBA-NDOC law school partnerships include funding awards for excellence in Constitutional Law. Recipients receive a cash prize and a FBA-NDOC membership. Those that received awards during the past academic year are:
University of Akron School of Law
Susan Lavalley
Marisa Mai
Elizabeth Oviedo
Andrew Schock
Case Western Reserve University School of Law
John D. Blanton, Jr.
Jared D. Eisenberg
Nirali Patel
Sonia D. Vohra
Cleveland-Marshall College of Law
Joseph Corsaro
Jennifer Noble
Mark Pennington
Margaret Sweeney
Allen Tittle
University of Toledo College of Law
Amanda Hasty
Aamir Mahboob
Matthew Waigand
Members in the News
Hanna Elected President of Women’s Center Board
Robert J. Hanna, a Partner with Tucker Ellis & West LLP, has been unanimously elected President of the Board of Directors of the Women’s Center of Greater Cleveland.
Satola Named FBA Sixth Circuit Vice President Nominee
James Satola will be the FBA Nominations and Elections Committee nominee for FBA Sixth Circuit Vice President for FY 2011 (it is generally a two-year term, beginning in the October preceding the “FY,” i.e., to begin Oct. 1, 2010). Our present Sixth Circuit VP, Michael Newman (FBA-Cincinnati/N.Ky Chapter), is moving to the FBA National Board of Directors.
Strang Elected Vice President of CMBA
Chapter president Carter Strang was elected vice president of the Cleveland Metropolitan Bar Association and received the CMBA Justice for All Volunteer of the Year Award.
Jett Elected to the Board of Directors of The Gathering Place
Stephen H. Jett, a Partner in the Cleveland office of Taft Stettinius & Hollister LLP, and a Chapter Board member and Chair of the Newsletter Committee, has been elected to serve on the Board of Directors of The Gathering Place, a non-profit cancer support organization, which provides free services and support to anyone “touched by cancer”, including cancer patients, cancer survivors, and their families. The Gathering Place has two locations in Cleveland: Beachwood and Westlake. Learn more about The Gathering Place at www.touchedbycancer.org.
Vance joins Tucker Ellis & West LLP
Victoria L. Vance has joined the Cleveland office of Tucker Ellis & West LLP as Counsel. Ms. Vance is the former Senior Counsel and Director of Litigation for The Cleveland Clinic Foundation.
While you were pleading: The Iqbal effect
By Jason Hill, Assistant Court Administrator for the Ohio 6th District Court of Appeal
May 2010 marked the one-year anniversary of the U.S. Supreme Court’s decision in Ashcroft v. Iqbal, in which the Supreme Court altered the landscape of the analysis used in determining whether a party has plead facts with sufficient detail to satisfy the Fed.R.Civ.P. 8 notice-pleadings requirements and overcome a Fed.R.Civ.P. 12(B)(6) motion to dismiss.1
In Iqbal, a deeply divided Supreme Court held by a vote of 5-4 that the pleading standard recently applied by the Court in Bell Atlantic Corp. v. Twombly in dismissing an antitrust claim for failure to plead operative facts with sufficient detail applied to all civil claims brought in federal court.2
The Court rejected arguments that the Twombly pleading standards were limited to antitrust cases or might be relaxed in the face of controls imposed by district courts in the initial discovery process.
Iqbal/Twombly pleading standard
Both Iqbal and Twombly marked an unequivocal departure from the Court’s prior statement in Conley v. Gibson that “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”3 The Iqbal Court rejected that statement in Conley as a proper pleading standard to the extent it suggested any statement revealing the theory of the claim will suffice unless its factual impossibility may be shown from the face of the pleadings.4
The Iqbal Court refined the pleading standard recently applied by the Court and announced in Twombly. In Twombly, the Court held that to survive a motion to dismiss, a complaint must contain sufficient factual matter, which accepted as true, states a “claim to relief that is plausible on its face.”5 The Court went on to state a claim has facial plausibility when the party pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.6 “Plausibility” is not a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully.7 The Court recognized that where a complaint pleads facts that are “merely consistent with” a defendant’s liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief ’ “necessary to permit a party to proceed forward.”8
The Iqbal Court went on to make two additional observations about the Twombly/Iqbal standard. First, the tenet that a court must accept all of the allegations contained in a complaint as true, is inapplicable to legal conclusions.9 Such a pleading “does not unlock the doors of discovery for plaintiff armed with nothing more than conclusions.”10 Second, determining whether a complaint states a plausible claim for relief will be a context-specific task that requires the reviewing court to draw on its “judicial experience and common sense.” But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has not shown that the pleader is entitled to relief.11
Iqbal has become the “citation du jour” in Rule 12(B)(6) cases.12 According to Westlaw®, as of March 2010, Iqbal had been cited in more than 16,700 instances. Approximately 6,000 of these citations were included in court decisions.
Several questions arose after the Court’s decision in Iqbal. First, how would reviewing courts interpret and apply Iqbal in determining whether a party satisfied their notice-pleading obligation? Second, how would reviewing courts treat complaints or other claims for relief that failed to comply with the Iqbal? And third, would trial courts view Iqbal as a mandate to stay discovery on Fed.R.Civ.P. 12(B)(6) motions until the court found the pleader had complied with Iqbal?
What is “plausible” and “implausible?” One key question reviewing courts were left to answer following Iqbal is what type of facts and details must a party plead to establish a “plausible” claim for relief. The case of In re Urethane Antitrust Litigation examined the U.S. 10th Circuit Court of Appeal’s analysis of the Twombly/Iqbal pleading standard:
“[P]lausible” cannot mean “likely to be true.” Rather, “plausibility” in this context must refer to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs “have not nudged their claims across the line from conceivable to plausible.
The allegations must be enough that, if assumed to be true, the plaintiff plausibly (not just speculatively) has a claim for relief.13
The U.S. 6th Circuit Court of Appeals also recently offered its thoughts on the pleading standard in Courie v. Alcoa Wheel & Forged Products: “[W]hile this new Iqbal/Twombly standard screens out the ‘little green men’ cases just as Conley did, it is designed to also screen out cases that, while not utterly impossible, are ‘implausible.’ Exactly how ‘implausible’ is implausible remains to be seen, as such a malleable standard will have to be worked out in practice.”14
The cases since Iqbal make clear that reciting the Twombly/Iqbal standards are simple, but its application to the particular litigation is not so simple. One court has noted the difference between pleading an acceptable fact and an unacceptable conclusion under Iqbal is not always simple. What seems conclusory to some may not be to others.15 Twombly and Iqbal make clear that the “height of the pleadings requirement is relative to the circumstances.”16
While most courts acknowledge the significance of Iqbal, some have questioned its widespread application and relevance.17 Despite the heightened pleading requirements of Iqbal, notice pleading remains the rule of federal courts, requiring only a “short and plain statement of the claim.”18 While a party’s claim to relief must be supported by sufficient allegations to be plausible, courts post-Iqbal have also recognized nothing in the Federal Rules of Civil Procedure requires a party to prove its case in the pleadings.19 Indeed, the 6th Circuit Court of Appeals observed courts cannot dismiss a case for “factual implausibility” even if it would strike a savvy judge that recovery is “very remote and unlikely.”20
Iqbal dismissal —“with” or “without” prejudice?
What happens when a court determines a pleading does not comply with Iqbal? If a reviewing court finds a claim fails to satisfy Iqbal, should it dismiss the claim with prejudice, or allow the party to amend its pleadings in an attempt to cure the deficiency? Courts are employing both outcomes. In the case In re Urethane Litigation, the court found that the plaintiffs failed to satisfy the Iqbal pleading standard with respect to certain claims, but granted leave to file an amended complaint.21 In Wade v. Morton Buildings, Inc., the court found plaintiff’s discrimination complaint did not satisfy Iqbal, but recommended dismissal without prejudice with right to file an amended complaint.22 In Mimms v. U.N.I.C.O.R., however, the trial court dismissed plaintiff’s “reamended” complaint with prejudice for failing to comply with Iqbal.23
Iqbal and the stay of discovery
In Iqbal, the Court unambiguously held that the question of the sufficiency of pleadings does not turn on the discovery process. Thus, the question arises when a party files a motion to dismiss alleging a claim for relief fails to comply with Iqbal, is the district court required to enter a stay of discovery until the court finds the claim for relief satisfies Iqbal? Courts have begun to address this issue and reached differing conclusions. In Solomon Realty Co. v. Tim Donut U.S. Limited, Inc., the court rejected the defendant’s argument that Iqbal required a stay of discovery while a motion to dismiss is pending.24 In determining whether to grant a stay of discovery, the court relied on the general tenet that the filing of a motion to dismiss does not justify the imposition of a stay in discovery. In Charvat v. NMP, LLC, the court also refused to find Iqbal required a per se stay in discovery while a motion to dismiss was pending.25
In Wagner v. Mastiffs, the court entered a stay of discovery of plaintiff’s antitrust claims finding that the burden faced by the defendants in proceeding with discovery on the antitrust claims would be significant.26 However, the court concluded that rationale did not extend to the other issues raised in the complaint.27 In Standard Iron Works v. ArcelorMittal, the court also denied a motion to stay discovery, and found even in a sizeable and complex case, Iqbal did not require a mandatory stay of discovery and chose to proceed with discovery. However, the court stressed it was not permitting discovery to proceed because plaintiff’s claim was shy of the Iqbal “plausible entitlement” to relief.28 Despite the decision in Standard Iron Works, it appears there is a trend developing where courts are more willing to enter an Iqbal stay of discovery on complex claims for relief.
Iqbal 2010 and beyond
As courts apply Iqbal, they undoubtedly will continue to embrace these and other questions stemming from Iqbal’s heightened pleading standard. It also remains to be seen whether Congress will take action to overturn Iqbal. On July 22, 2009, Pennsylvania Senator Arlen Spectrer introduced S.B. 1504, the Notice Pleading Restoration Act of 2009, to reinstate pre-Twombly pleading standards to motions to dismiss. The act would prohibit federal courts from dismissing complaints under Fed.R.Civ.P. 12(B)(6) except under the standards set forth by the Supreme Court in Conley v. Gibson. The bill has been referred to the Senate Judiciary Committee. Although the bill remains in committee, proponents and opponents alike have actively voiced their respective positions on this bill.
Endnotes
1Ashcroft v. Iqbal (2009), 129 S.Ct. 1937.
2Bell Atlantic Corp. v. Twombly (2007), 550 U.S. 544; Twombly, 550 U.S. at 546, quoting Conley, 355 U.S. at 45-46.
3Iqbal, 129 S.Ct. at 1944.
4Id. at 1949. (Emphasis added and internal citations omitted.)
5Id.
6Id.
7Id.
8Id. at 1949-50.
9Id. at 1950.
10Id.
11Smith v. Duffey (C.A. 7 2009), 576 F.3d 336, 339-40.
12In re Urethane Antitrust Litigation (D.Kan. 2009), 663 F.Supp.2d 1067, quoting Robbins v. Oklahoma (C.A.10 2008), 519 F.3d 1242, 1247. (Additional citations omitted.)
13Courie v. Alcoa Wheel & Forged Products (C.A.6 2009), 577 F.3d 625, 629-30, quoting Iqbal, 129 S.Ct. at 1949. (Additional citations omitted.)
14Wade v. Morton Buildings, Inc. (Jan. 27, 2010) C.D.Ill. No. 09-1225, unreported.
15Id. at *2, quoting Cooney v. Rossiter (C.A.7 2009), 583 F.3d 967, 971.
16See Hutchinson v. Metro. Govt. of Nashville and Davidson Cty. (M.D.Tenn. 2010) —F.Supp.2d —*5 (“[T]he Court must note it is uncomfortable with this pleading standard.”) See also Duffey, 576 F.3d at 339-340 (“So maybe neither Bell Atlantic nor Iqbal governs here.”)
17Fed.R.Civ.P. 8.
18Chao v. Ballista (D.Mass. 2009), 630 F.Supp.2d 176, 177, quoting Twombly, 550 U.S. at 545.
19Mitchell v. Proctor & Gamble (Mar. 1, 2010), S.D.Ohio No. 2:09-CV-426, unreported, citing Courie, 577 F.3d at 625.
20In re Urethane Antitrust Litigation, 663 F.Supp.2d at 1077.
21Wade, C.D.Ill. No. 09-1225, at *8.
22Mimms v. U.N.I.C.O.R. (Mar. 8, 2010), D.N.J. No. 09-1284, *10, unreported.
23Solomon Realty Co. v. Tim Donut U.S. Limited, Inc. (Aug. 11, 2009), S.D.Ohio No. 2:08-cv-561 *2-3, unreported.
24Id. at *2, citing 4. J. Moore, Federal Practice §26.70[2] at 461.
25Charvat v. NMP, LLC (Sept. 30, 2009), S.D.Ohio No. 2:09-cv-209, *1, unreported.
26Wagner v. Mastiffs (Dec. 22, 2009), S.D.Ohio Nos. 2:08-cv-431, 2:09-cv-0172, *1-2, unreported.
27Id. at *2.
28Standard Iron Works v. ArcelorMittal (N.D.Ill. 2009), 639 F.Supp.2d 877, 903.
Jason A. Hill, Esq. is the Assistant Court Administrator for the Ohio 6th District Court of Appeals. He also serves as treasurer for the FBA-NDOC, and is the incoming chair of the Toledo Bar Association Federal Court Committee.
This article was originally published in the spring 2010 issue of the Ohio State Bar Association Litigation News.
Courtoon
The FBA-NDOC’s New Lawyer Training Seminars a Win-Win
By Michael P. Sherban, Associate, Thompson Hine
The Federal Bar Association’s 2010 New Lawyer Training Curriculum is a series of substantive seminars designed to offer new lawyers the kind of practical training they need at the beginning of their careers. Seminar speakers include federal and state judges, prosecutors and prominent attorneys from our community. The March and May seminars were well-attended, and the attendees provided positive feedback to the FBA.
On July 23, 2010, the FBA presented its next seminar entitled "Standing Up in Court." The remaining programs will take place in September and November. The seminars are held at the Carl B. Stokes U.S. Courthouse. All seminars are videotaped, and will be replayed later in the year for individuals who cannot attend the live seminars. These seminars are sponsored by contributions from Legal Images and Rennillo Deposition & Discovery.
These seminars are a Win/Win for both legal professionals and the FBA. They offer an opportunity for lawyers to obtain their required CLE credit while networking with other professionals and judges. Additionally, the seminars provide the FBA with an opportunity to recruit new members and promote the benefits of membership. The continued success of the Federal Bar Association’s CLE program will be a key factor in continuing to build upon the strength of the Northern District of Ohio Chapter.
Upcoming seminars:
Sept. 17, 2010—A Whole Trial in 3 Hours
Nov. 19, 2010—What You Need to Know About …
Michael P. Sherban is an Associate in Thompson Hine’s Business Litigation practice group. He focuses his practice on complex litigation and dispute resolution concerning contracts, fiduciary relationships, insurance disputes and other business transactions and relationships. Prior to joining Thompson Hine, Mike was a consultant for both Andersen Consulting and IBM.
Sixth Circuit Judicial Conference Roundup
By James W. Satola, Past President and current Board Member of the FBA Northern District of Ohio Chapter
The 70th Judicial Conference of the Sixth Circuit took place in Columbus, Ohio, this past May 4-7 at the Renaissance Columbus Downtown Hotel. For those who may not be familiar with the conference, the Sixth Circuit Judicial Conference brings together the various circuit judges, district judges, magistrate judges, bankruptcy judges, and federal practitioners from throughout the Sixth Circuit (covering Michigan, Ohio, Kentucky, and Tennessee), and many from elsewhere throughout the country — plus the Sixth Circuit’s “Circuit Justice,” Associate Justice John Paul Stevens — to conduct the business of the circuit, to participate in CLE programs focused on the federal courts and federal practice, and to partake in the many social events offered throughout the conference highlighting the best the host city has to offer its many guests (more than 800, in fact, according to the preconference registration numbers reported by the circuit). As always, it was a wonderful event.
|
At the 2010 Sixth Circuit Judicial Conference in Columbus, Ohio (L to R), James W. Satola (FBA-NDOC Board Member and incoming Sixth Circuit Vice President), Associate Justice John Paul Stevens (Circuit Justice for the Sixth Circuit), Michael J. Newman (current Sixth Circuit Vice President). |
The conference opened on Tuesday, May 4, with administrative and circuit business meetings among the circuit, district, and bankruptcy judges, as well as circuit officers and committee members. For the practicing attorney attendees, the opening event was a presentation at the Ohio Statehouse titled “Here Stood Lincoln” describing the speech delivered by Abraham Lincoln at the Statehouse on September 16, 1859. Immediately following the presentation, also at the Statehouse, was the Sixth Circuit Life Members Reception, a longstanding tradition at the conference — and traditionally a highlight social event of the three-day meeting. This year’s reception fit the bill, as the conference attendees mingled throughout the rotunda and atrium of the restored Ohio Statehouse, accompanied by chamber music and a lavish array of fine food offerings (I definitely got my money’s worth out of the latter!).
The formal opening of the conference began on Wednesday morning with welcoming remarks by Chief Judge of the Sixth Circuit, Alice M. Batchelder. The first program was a plenary session for all the conference attendees, entitled “Supreme Court Update,” with Solicitor General (and, as of this writing, Supreme Court nominee) Elena Kagan as moderator, and panelists Erwin Chemerinsky, noted Supreme Court scholar and Dean of the University of California Irvine School of Law, and Paul Clement, former Solicitor General of the United States. The morning’s program concluded with a session that is also a tradition of the conference, remarks by U.S. Supreme Court Justice John Paul Stevens, our Circuit Justice. But this presentation was different from years past. It was a panel discussion, “A Conversation with the Honorable John Paul Stevens,” with the Justice accompanied by two of his former law clerks, Jeffrey Fisher, now Associate Professor of Law and Co-Director of the Supreme Court Litigation Clinic at Stanford Law School, and Teresa Wynn Roseborough, now Senior Chief Counsel with Metropolitan Life Insurance Company. It was a warm and engaging discussion among the three, describing recent and past cases before the Court, this year’s Court term, life on the Court, Justice Stevens’ years as a litigator, bar leader in Chicago, his pre-Court career on the Seventh Circuit, and the recently-published authorized biography of Justice Stevens, John Paul Stevens, An Independent Life, by Bill Barnhart and Gene Schlickman (Northern Illinois University Press 2010). The presentation was followed by a question and answer session with the gathered attendees. It was a fine presentation. And for those not attending the conference, it was also recorded by C-SPAN, so you’ll soon have a chance to see it. Following the morning programs, attendees were treated to a luncheon with guest speaker Eric Holder, Attorney General of the United States. Afterward, all were free to partake in the many social activities around Columbus offered by the conference planning committee, or to explore the city and sights on their own.
On Wednesday evening, the conference attendees gathered for a presentation with another member of the Supreme Court, Chief Justice John Roberts, at a reception and dinner held in the Archie Griffin Ballroom at the newly-opened Ohio Union on the campus of The Ohio State University, hosted by University President E. Gordon Gee. Chief Justice Roberts’ presentation offered accounts of his experiences on the Court, presiding over the Court’s conference, and a bit of Supreme Court history, including a few anecdotes on the career of one of his predecessors, Chief Justice William Howard Taft. Following the Chief Justice’s remarks, Sixth Circuit Chief Judge Alice Batchelder presented the American Inns of Court Professionalism Award to one of the Northern District of Ohio’s own, Mark O’Neill of Weston Hurd LLP.
Thursday’s morning and afternoon were dedicated entirely to, first, a plenary session entitled, “Effects of the Economy on the Practice of Law,” followed by an array of individual breakout CLE sessions on federal practice, featuring many members of the assembled judiciary, federal practitioners, and distinguished guests. Among the offerings were, “Sentencing,” “Technical Issues in Litigation,” “Immigration,” “Employment Law” (moderated by FBA-NDOC Board Member, U.S. District Judge Dan Polster), “Bankruptcy Practice,” “Objectivity on Trial, Revisiting Old Convictions in Light of New Technology,” “Trial Advocacy, The Anatomy of a Trial,” “Appellate Advocacy” (featuring the Sixth Circuit’s two newest judges, Raymond Kethledge and Helene White), and “Intellectual Property” (moderated by Northern District of Ohio U.S. District Judge Jack Zouhary). On Thursday evening, conference attendees were welcomed by the Justices of the Supreme Court of Ohio to a Reception at the magnificent Ohio Judicial Center, home to the Supreme Court of Ohio.
The conference concluded on Friday morning with individual district breakout sessions, including our own Northern District of Ohio session lead by then Chief District Judge James Carr, along with newly-installed Chief District Judge Solomon Oliver Jr., District Judge Dan Polster, Chief Bankruptcy Judge Marilyn Shea Stonum, Bankruptcy Judge Mary Ann Whipple, Bankruptcy Judge Kay Woods, Magistrate Judge Kenneth McHargh, and Magistrate Judge Gregory White. The purpose of these sessions is to engage in an informal and frank discussion of issues pertinent, and perhaps unique, to each district. As always, our Northern District of Ohio session was well-attended and active.
A final note on the conference itself, as an institution, is appropriate. Because 2010 is an “even year,” this year’s conference was an “open” conference, meaning it was open to all attorneys practicing in the federal courts within the Sixth Circuit. In odd-numbered years, the conferences are attended by judges only. Prior to 2000, only a handful of attorneys were invited, specifically those who were appointed as delegates by either the Chief Judge or one of the circuit judges of the Sixth Circuit (two delegates each), or by one of the district judges within the circuit (one each). Beginning with the 2000 conference, the invitation list was expanded to include, “Any attorney admitted to practice in one or more federal courts of this Circuit.” (Sixth Cir. R. 205(c)(8)). This change allowed many more of us who practice regularly in our federal courts to attend the conference. As anyone who has attended a previous conference knows, attendance at a judicial conference offers a great opportunity for members of the bar to meet the judges of our circuit court, our district courts, and our bankruptcy courts, as well as our fellow federal practitioners – and sometimes even our Circuit Justice — in a collegial and social setting. It is not only a great educational opportunity, but it is also a lot of fun.
The next open conference, the location of which rotates among the states within the circuit, will be held in Lexington, Kentucky in 2012.
James W. Satola is a Past President and current Board Member of the FBA Northern District of Ohio Chapter, and the incoming FBA National Vice President for the Sixth Circuit. He is also a Life Member of the Sixth Circuit Judicial Conference.
U.S. v. Stevens: A Dog Gone Shame?
By Annette G. Butler
How much is that doggie in the window,
The one with the waggley tail?1
WARNING: The following article may contain material that could result in trauma for animal lovers. If this applies to you, you must stop reading here.
The First Amendment to the U.S. Constitution has been a bane to lawmakers, judges and justices alike since its adoption. The problem has been that it is hard to imagine a law that is designed to protect that which is unpopular, abhorrent or downright grotesque. But this statute does as it must.
In the October term, eight Justices of the Supreme Court (only Justice Alito dissented) decided that the First Amendment protected the commercial activities of businessman Robert J. Stevens (no relation to Justice Stevens). Robert Stevens ran a business, “Dogs of Velvet and Steel”, and an associated website that sold videos showing dog fights, dogs viciously attacking other animals and, specifically, a gruesome scene showing a pit bull attacking a domestic farm pig.
Robert Stevens was convicted under 28 U.S.C. §48 (hereinafter §48), which states in pertinent part:
(a)Creation Sale or Possession–-whoever knowingly creates, sells, or possess a depiction of animal cruelty with the intention of placing that depiction in interstate or foreign commerce for commercial gain, shall be fined under this title or imprisoned not more than 5 years or both.
(b) Exception–Subsection (a) does not apply to any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value.2
Stevens was convicted by a jury on three counts of violating this statute and sentenced to 37 months imprisonment and three years of supervised release. Stevens appealed and the en banc Third Circuit, over a three judge dissent, found the statute to be unconstitutional and vacated Stevens’ conviction.
The Third Circuit reasoned that §48 not only lacked the requisite legal specificity (and therefore was over broad), but it also bore little or no resemblance to a proper vehicle designed to protect the public against animal cruelty. The Supreme Court affirmed the Third Circuit’s decision and reasoning and, in effect, struck down §48 in its entirety.
How curious. Here is why.
In New York v. Ferber, the Supreme Court decided that the market for child abuse was intrinsically related to the abuse itself, and therefore resided outside of the protection of the First Amendment.3 And, in Osborne v. Ohio, the majority determined that a person may be convicted for possession of child pornography in their homes.4
Except for the genus of the subject matter, Osborne bears some remarkable similarities to U.S. v. Stevens. Ohio police found photographs in Osborne’s home that depicted a nude male adolescent in a sexually explicit position and charged him under O.R.C. 2907.323(A)(3), which prohibits the use of a photograph of a minor in a state of nudity unless parental consent has been obtained. This section, as does §48, carves out an exception for photographs being used for a proper purpose and defines proper purpose as “a bona fide artistic, medical, scientific, educational, religious, governmental, judicial, or other proper purpose.” The Ohio statute differs in that it further delineates persons who may be viewed as having a proper interest in nude photos of minors, such as doctors, sociologists, teachers and the like.
Justice Alito, as the lone dissenter in the Stevens case, argued that the purpose of §48 was to “prevent horrific acts of animal cruelty”.5 He further asserted that the majority spent too much time analyzing the over broad argument, and too little time evaluating the actual unconstitutionality of the videos themselves. He suggested that the case warranted a remand to make that evaluation. Further, and quite persuasively, he addresseed the public purpose of the First Amendment exceptions by reminding us that depictions of criminal and violent behavior may have the same harmful effect on the subjects as the behavior itself. That argument certainly warrants merit.
Finally, in an amicus brief authored by Solicitor General Elena Kagen, the Justice Department was vocal in its opposition to the potential demise of §48, as well as in its insistence that the Justices balance the value of the speech against its societal cost.6 Like Justice Alito, Kagan likened the animal cruelty depictions to child pornography and argued in favor of the government’s interest in eradicating the cruel and unusual acts by eliminating the depictions.
The rights of free speech and free expression are precious and must be preserved at all reasonable costs. Ask Larry Flynt or, better yet, the staff at the New York Times, to name a few. So, exceptions to these rights must be made with prudence.7 But, from where I sit, animals and children, require exception to the First Amendment’s protections.
The good news is that our legal system accommodates an enormous amount of debate and adjustment of position. The bad news is that my cat has been behaving as if something unconscionable is occurring in our society to her detriment.
It makes me wonder if she has been reading the Supreme Court slip opinions.
Endnotes
1These are opening lyrics from the popular song of the 1950s written by Bill Merrill and sung by Patti Page.
2The legislative history indicates that the target of this statute is what is commonly known as “crush” videos. Those videos depict, inter alia, women slowly crushing animals — dogs, cats, monkeys, mice and hamsters — to death with their bare feet or spiked heels while the animals squeal and writhe in pain until they die. Use your imagination to determine the audience for this atrocity.
3458 S.Ct. 747 (1982).
4494 S.Ct. 103 (1990),
5Alito dissent at 1.
6Solicitor General Kagan’s Senate confirmation hearings for her nomination to the U.S. Supreme Court by President Obama commenced on June 28, 2010, but will not be concluded before this article goes to press.
7Hustler v. Falwell, 485 S.Ct. 46 (1988). New York Times v. Sullivan, 376 U.S. 254 (1954).
Annette G. Butler is a Former Assistant U.S. Attorney and former President of the Northern District of Ohio Chapter of the Federal Bar Association. She is currently teaching Legal Research and Writing and Criminal Law to Paralegals and serves as a member of the FBA-NDOC Board of Directors.
Supreme Court Preview of Ortiz v. Jordan: Under what conditions, if ever, is the denial of summary judgment appealable after trial?
By David E. Mills, The Mills Law Office LLC
There is a basic question of summary judgment that has divided the circuits: whether a party may appeal the denial of summary judgment after a full trial. The Sixth Circuit’s decision in Ortiz v. Jordan — which reversed a jury verdict in favor of Elyria, Ohio resident Michelle Ortiz — raises this question. The Supreme Court has granted certiorari and will decide the case next term. (Disclosure: I represent the petitioner, Michelle Ortiz, and will argue the case this fall.)
Background of Michelle Ortiz’s case
While serving a one-year sentence at the Ohio Reformatory for Women, Ortiz was sexually assaulted by a corrections officer on two consecutive days. On the night of the first assault, he issued the following threat: “I’ll get you tomorrow, watch.” Ortiz reported the assault, but the next day the officer approached her when she was alone and asleep. Before startling her awake, the officer managed to get his hands inside her underwear and digitally penetrate her vagina. While this incident was investigated, Ortiz was shackled and ordered into solitary confinement, where she was later found ill and vomiting.
Ortiz brought a 42 U.S.C. §1983 suit, raising two claims relevant to the current proceedings. First, Ortiz alleged that one defendant (Respondent Jordan), a case manager at the reformatory, failed to take adequate steps to protect Ortiz from the officer, in violation of the Eighth Amendment. (Another defendant, an investigator for the reformatory, later testified that if this case manager had immediately reported the first incident, “the proper people would have taken a role in protecting Ms. Ortiz.”) Second, Ortiz alleged that the investigator violated Ortiz’s due-process rights by ordering her into solitary confinement (“the hole”) in retaliation for Ortiz reporting the assaults. (Ortiz stated that the investigator ordered her into solitary confinement “because [Ortiz] had lied” about the assault.)
These defendants filed a pretrial motion for summary judgment on the basis of qualified immunity. The district court denied the motion, concluding that a reasonable jury could find that the defendants had violated clearly established law. They chose not to bring an immediate appeal to challenge that ruling. Instead, they proceeded to trial. At the close of Ortiz’s case in chief and at the close of all the evidence, the defendants orally moved for judgment as a matter of law under Rule 50(a). The district court denied the motion, and the case was submitted to the jury, which found the defendants liable. The district court then entered judgment in Ortiz’s favor based on the verdicts. The defendants did not renew their motion for judgment as a matter of law under Rule 50(b), nor did they move for a new trial under Rule 59.
The defendants then appealed the judgment and the pretrial order denying summary judgment. The Sixth Circuit, in a 2-1 decision, proceeded as though it had jurisdiction under 28 U.S.C. §1291, which provides appellate jurisdiction over final decisions of district courts. The majority reversed the district court’s order denying summary judgment on qualified-immunity grounds, effectively vacating Ortiz’s verdict. The majority concluded that the defendants had not committed any constitutional violations. The majority also acknowledged that Ortiz’s retaliation claim would have been permissible under Supreme Court precedent, but only if it were litigated as a “First Amendment” retaliation claim. Judge Daughtrey dissented, calling the majority’s decision to “extinguish the award by overturning the jury verdict” a “legal travesty.” Ortiz filed a timely petition for rehearing, which was denied over Judge Daughtrey’s dissent.
Ortiz then filed a petition for certiorari, noting that the circuits are divided on the conditions under which, if ever, a party may appeal the denial of summary judgment after a full trial. The exact question presented is as follows: “May a party appeal an order denying summary judgment after a full trial on the merits if the party chose not to appeal the order before trial? The Supreme Court granted certiorari on April 26, 2010.
The general rule: Denial of summary judgment is not appealable after a full trial
The circuits agree, as a general rule, that denials of summary judgment are not appealable after a full trial on the merits. Price v. Kramer, 200 F.3d 1237, 1243 (9th Cir. 2000) (noting that this is the “prevailing view among the federal circuits”); Chesapeake Paper Prods. Co. v. Stone & Webster Eng’g Corp., 51 F.3d 1229, 1234 (4th Cir. 1995) (same). The denial of summary judgment is simply not “final” under §1291, because the trial “supersedes the earlier summary judgment proceedings.” Johnson Int’l Co. v. Jackson Nat’l Life Ins. Co., 19 F.3d 431, 434 (8th Cir. 1994).
An oft-cited case for this principle is Locricchio v. Legal Services Corp., 833 F.2d 1352 (9th Cir. 1987), where the Ninth Circuit refused to review the denial of summary judgment after a jury verdict in favor of the plaintiff. The court reasoned that any injustice to the party attempting to resurrect summary-judgment arguments was outweighed by the injustice of depriving “a party of a jury verdict after the evidence was fully presented, on the basis of an appellate court’s review of whether the pleadings and affidavits at the time of the summary judgment motion demonstrated the need for a trial.” Id. at 1359; see also Holley v. Northrop Worldwide Aircraft Servs, Inc., 835 F.2d 1375, 1377 (11th Cir. 1988) (“Summary judgment was not intended to be a bomb planted within the litigation at its early stages and exploded on appeal[.]”). Courts also explain that Rule 50 provides an avenue for parties to move for judgment as a matter of law at trial. See Black v. J.I. Case, 22 F.3d 568, 571 n.4 (5th Cir. 1994) (noting that an exception for legal questions “would benefit only those summary judgment movants who failed to properly move for judgment as a matter of law at the trial on the merits” under Rule 50). Indeed, under the Supreme Court’s decision in Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc., 546 U.S. 394 (2006), parties must renew their Rule 50 motion after the verdict (through Rule 50(b)) to preserve the issue for appeal.
The first split: Is there an exception for questions of law?
Circuits applying the legal-question exception to allow the appeal
At least three circuits (the Sixth, Seventh and Ninth), have endorsed the “legal-question” exception, holding that denials of summary judgment are reviewable if the appeal raises a question of law. See Banuelos v. Constr. Laborers’ Trust Funds for S. Cal., 382 F.3d 897, 902 (9th Cir. 2004) (recognizing Locricchio’s general rule, but holding that it “does not apply to those denials of summary judgment motions where the district court made an error of law that, if not made, would have required the district court to grant the motion”); Chemetall GMBH v. ZR Energy, Inc., 320 F.3d 714, 720 (7th Cir. 2003) (same); McPherson v. Kelsey, 125 F.3d 989, 995 (6th Cir. 1997) (same).
The Fifth Circuit has also implied approval of the exception, but is not clear. See Becker v. Tidewater, Inc., 581 F.3d 256, 263 (5th Cir. 2009) (“Although the rule does not appear to have been explicitly stated in this circuit, other circuits have held that a denial of summary judgment is appealable after a trial on the merits when there was a ruling by the district court on an issue of law.”) (citing Ninth Circuit’s decision in Banuelos); but see Black, 22 F.3d at 571 n.4 (rejecting a distinction for such appeals based on factual versus legal questions).
Courts applying this exception generally reason that it would be unfair to allow a judgment to stand where the appellant can show that the district court erroneously denied summary judgment as a matter of law. See, e.g., Varghese v. Honeywell Int’l, Inc., 424 F.3d 411, 425–26 (4th Cir. 2005) (Motz, J., dissenting) (relying on Seventh Circuit’s conclusion that “there is no unfairness in allowing a party to reassert on appeal a legal defense rejected as a basis for summary judgment (e.g., res judicata, statute of limitations, immunity, preemption) because by definition a legal defense provides a basis to avoid liability for an otherwise meritorious claim”).
Circuits rejecting the legal-question exception and barring appeal
By contrast, the Fourth and Eighth Circuits have held that there is no such exception for questions of law. EEOC v. Southwestern Bell Tel., L.P., 550 F.3d 704, 708 (8th Cir. 2008) (refusing to consider appellants’ appeal of summary judgment denial where appellant argued district court erred “as a matter of law”); Varghese, 424 F.3d 411(rejecting the exception in a 2-1 decision and acknowledging the circuit conflict); see also Eaddy v. Yancey, 317 F.3d 914, 916 (8th Cir. 2003) (“Even a cursory review of precedent in this Circuit reveals that we do not review a denial of a summary judgment motion after a full trial on the merits.”).
The Eleventh Circuit also appears to reject the exception. Lind v. United Parcel Servs., Inc., 254 F.3d 1281, 1286 (11th Cir. 2001) (noting its earlier decision suggesting that the exception might exist but holding that “this Court will not review the pretrial denial of a motion for summary judgment after a full trial and judgment on the merits”); see also Larson v. Benediktsson, 152 P.3d 1159, 1167 (Alaska 2007) (noting that the Eleventh Circuit is among those courts that “have apparently converted to the broader view after initially adhering to the narrower form of the rule” barring such summary-judgment appeals).
Among other reasons for adhering to the general rule, these courts explain that allowing parties to appeal denials of summary judgment, even for pure questions of law, “would undermine Federal Rule of Civil Procedure 50(a) and (b) and 28 U.S.C. § 1292(b) (permitting a party to appeal an interlocutory order of the district court if the district court certifies the order for appeal).” Eaddy, 317 F.3d at 916. These courts have stated that they “do not reward litigants who fail, either inadvertently or intentionally, to exercise their rights under Federal Rules of Civil Procedure.” Id. Courts also explain that overturning verdicts in this context is unfair to the party who obtained the verdict after a full trial. Larson, 152 P.3d at 1167.
The second split: Is there an exception where the moving party chose not to appeal before trial?
Circuits rejecting post-trial appeals that could have been raised before trial
Though the Ninth Circuit generally recognizes the legal question exception, it will not review the legal question where the appellant could have brought the appeal before trial but failed to do so. Price, 200 F.3d 1237. Similarly, it appears that the Fourth Circuit would adhere to its clear holdings that appeals of summary judgment denials are simply not appealable after a full trial under any circumstances — suggesting that it would not rule otherwise, even where the legal question involved qualified immunity. See Varghese, 424 F.3d 411(rejecting the exception altogether and acknowledging the circuit conflict).
The rationale for this conclusion is well articulated in Price. There, the Ninth Circuit reaffirmed the general rule, as expressed in Locricchio, that summary judgment denials are not reviewable after a full trial. Id. at 1243. The court saw “no reason to deviate from Locricchio in the present context[,]” where the appealing party chose not to bring an interlocutory appeal regarding qualified immunity. Id. at 1244. “In fact,” the court explained, “there is even less reason to permit a post-trial appeal of a pretrial denial of qualified immunity” because “a denial of a motion for qualified immunity as a matter of law is appealable as of right on an interlocutory basis.” Id. The court encapsulated its view as follows: “The defendants’ complaint to us now — that in retrospect the officers should have been immune from suit at the time of the pretrial order — is long past due and unreviewable on this appeal.” Id.
This conclusion appears consistent with the Supreme Court’s holdings regarding the collateral-order doctrine. To fit within the “small class” of orders that are immediately appealable (such as qualified-immunity denials), the decision must be “effectively unreviewable on appeal from a final judgment.” Id. (citing Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139 (1993).) The Price court’s decision not to review, after trial, the pre-trial denial of qualified immunity reflects that such an order is indeed “effectively unreviewable” after trial. See also Johnson v. Walton, 558 F.3d 1106, 1108 n.1 (9th Cir. 2009) (reaffirming Price and noting that “[p]arties intending to appeal the determination of qualified immunity must ordinarily appeal before final judgment”).
Circuits allowing post-trial appeals that could have been raised before trial
By contrast, the Sixth, Seventh, Eighth and Tenth Circuits have allowed such appeals. Medina v. Bruning, 56 F. App’x 454, 455 (10th Cir. 2003); Pearson v. Ramos, 237 F.3d 881, 884 (7th Cir. 2001) (acknowledging Ninth Circuit’s contrary position); Goff v. Bise, 173 F.3d 1068, 1072 (8th Cir. 1999); but see Littlewind v. Rayl, 33 F.3d 985, 987 (8th Cir. 1994) (holding that defendants waived qualified-immunity defense where they failed to bring interlocutory appeal and failed to include the issue in their notice of appeal).
Among other reasons, these courts generally explain that the qualified-immunity question is reviewable because it is a pure question of law. E.g., Pearson, 237 F.3d at 884.
Conclusion
The Sixth Circuit concluded that it had jurisdiction to review the denial of summary judgment after a full trial on the merits that culminated with a jury verdict in Michelle Ortiz’s favor. By granting certiorari, the Supreme Court can clarify the conditions under which, if ever, a party may appeal the denial of summary judgment after trial and effectively overturn the verdict.1
Endnote
1For the latest briefs and news about the case, visit www.scotuswiki.com/index.php?title=Ortiz_v._Jordan.
David Mills, owner of The Mills Law Office LLC, focuses his practice on federal appeals and certiorari. He also will begin teaching Appellate Practice this fall as an Adjunct Professor of Law at Case Western University School of Law. He can be reached at dm@MillsFederalAppeals.com
Brown Bag Lunch with Judges Cook and Lioi
|
Top: Judge Sarah Lioi and Judge Deborah Cook. Bottom: Judge Deborah Cook with her former clerk Michael Ruttinger and Irene Keyse-Walker. |
On Monday, June 21, the FBA Northern District of Ohio Chapter offered its members another installment of its increasingly popular Brown Bag Luncheon series (the 22nd to be exact, since our first in 1998, attesting to the popularity of the series). This one was a “two for one” event, hosted by Sixth Circuit Court of Appeals Judge Deborah Cook and Northern Ohio District Court Judge Sara Lioi. It was held in Judge Lioi’s courtroom at the federal courthouse in Akron, and it played to a full house, attended by more than 60 members and guests. It was a fine event.
Following the format of its predecessors, the program began with each of the judges giving a brief introduction of herself and their respective courts (and at this one an introduction of their law clerks and externs as well), followed by a question and answer session. Judge Cook spoke on, and answered questions about, her experiences on the Supreme Court of Ohio and the Sixth Circuit, briefing and oral advocacy, collegiality among the judges, opinion writing, and the Sixth Circuit’s practice (though less common now, given the greater compliment of circuit judges in recent years) of bringing in district judges from within the circuit to sit on panels. Judge Lioi did the same, taking questions on and discussing her experiences as a common pleas judge and district judge, the district court’s docket, encouraging collegiality among lawyers, trial and motion practice, and particularly the benefit she has found in scheduling an informal non-argumentative “science presentation day by experts” prior to the formal motion hearing in cases where complex or otherwise unfamiliar technical information will be needed to decide the motion. It was an informative and engaging discussion with the judges.
As those who have attended our Brown Bag Luncheons know, they provide an excellent opportunity for our members to meet in an informal setting with the judges of our courts, and with our colleagues in federal practice, to learn from each other and hear what each has to say. These lunches are one of the many benefits our Chapter offers to its members, and for many, a favorite.
University of Toledo College of Law Hosts Military Commissions Act Symposium
On February 19, 2010, the University of Toledo College of Law hosted a symposium on Congress’s recent enactment of the Military Commissions Act of 2009. The symposium focused on the ongoing debate of whether those accused of terrorist activity should be tried in an Article III, U.S. District Court, or before a military tribunal of the United States.
The symposium included a panel discussion with judges of the United States District Court: Senior District Judge James G. Carr, Northern District of Ohio; Chief Judge Gerald E. Rosen, Eastern District of Michigan; and District Judge Marcia G. Cooke, Southern District of Florida. The judges, who have each tried cases involving alleged incidents of terrorism, discussed the various evidentiary and administrative challenges presented to the court, prosecution, defense attorneys, and intelligence community in trying terrorism cases.
Attorneys from the Cleveland office of the U.S. Attorney and Office of the Federal Public Defender also discussed their respective experiences in trying terrorism cases. Other panelists included: former U.S. Attorney, Captain David Iglesias, JAGC-USN; Prosecutor, Office of Military Commissions, U.S. Department of Defense, John Rizzo; and former Acting General Counsel for the Central Intelligence Agency, and well-known criminal defense attorney, Joshua L. Dratel.
Over 100 attendees were treated to a lecture by Professor John Q. Barrett, St. John University School of Law. Professor Barrett provided an informative look back at the Nuremburg Trials and examined their continued relevance to the ongoing debate concerning the use of military tribunals in trying terrorism suspects. The Northern District of Ohio Chapter of the Federal Bar Association sponsored lunch for those in attendance.
Chapter’s Quarterly Breakfast a Great Way to Network
By Michael J. Ruttinger, Associate, Tucker Ellis & West LLP
I usually eat breakfast at my desk. Usually — but on April 29, 2010, I decided to try something different. Instead, I joined members of the Federal Bar Association for the FBA’s quarterly breakfast, held in April at Tucker Ellis & West. This was my first time at an FBA event outside of a CLE course and, to be honest, I had little idea of what to expect. It won’t be my last.
When I joined the FBA in April of this year, I thought (like many of you, I’m sure) that it would be a great way to get discounts on CLE. Of course, I also knew that it would be a valuable way to network with other Cleveland-area lawyers. But the problem with networking is motivation — it is often difficult to set aside time with the press of business during the day, and at night many of us have families to see. Breakfast, on the other hand, is a great time to meet other professionals before the day begins and the offices and court rooms fill up.
Adding to its appeal, the FBA’s quarterly breakfast is the perfect opportunity for new members to engage with the bar association. Unlike larger meetings or CLE courses, the breakfast is a smaller and more collegial gathering. It is, in fact, the first bar association event where I have ever learned everyone’s name. And for those interested in becoming more involved, the meeting offers an unparalleled opportunity to talk with the organization’s leadership, one-on-one, about ways to participate.
Moreover, the breakfast is a great opportunity not only to learn about the bar, but also about each other and our practices. Indeed, most of the time was devoted to talking about current events and the accomplishments of other members of our bar. And it’s just that — our bar association. Since April, I have met many of these people again and again. We practice with these men and women every day and owe it to ourselves to know a little about our colleagues. There is no better opportunity than this.
And if that doesn’t sell you, the breakfast is free. I hope to see you all there.
Mike Ruttinger joined Tucker Ellis & West as an Associate in 2009. He is a graduate of the University of Michigan Law School and, before joining Tucker Ellis, served as a law clerk to the Hon. Deborah L. Cook on the U.S. Court of Appeals for the Sixth Circuit.
Chapter's Tribute to Judges Carr, Gallas and Perelman
A Tribute — a first time event — for Chief Judge Carr, and Magistrate Judges Gallas and Perelman, was held on May 25, 2010 at the federal courthouse in Cleveland. Judge Carr is going on senior status and will be teaching at the University of Toledo College of Law. Magistrates Gallas and Perelman are retiring.
|
Retiring Magistrate Judge Gallas addresses FBA-NDOC chapter members at a Tribute event held in honor of Chief Judge Carr, Magistrate Judge Perelman and himself. |
More than 90 chapter members and members of the court attended. The event began with a reception in the court’s atrium followed by the program. Following brief remarks regarding their respective careers by Immediate Past President Ellen Toth (for Judge Carr), and Judge Carr (for both magistrates), all three honorees were presented with engraved clocks by Chapter President Carter Strang, courtesy of the Chapter. The Chapter — led by Ellen Toth — worked closely with Clerk of Court Geri Smith, who is also a Chapter Board member.
FBA’s Gathering Place 5K Team
For the first time in its history, the Chapter formed a 5K road racing team that participated in The Gathering Place fund raiser. The Gathering Place is a support center for those stricken by cancer and their families. The race took place on June 6, 2010. The Chapter’s Newsletter Chair, Steve Jett, was the organizer, assisted by Board member Rebecca Bennett. Participants included Board members Judge Benita Pearson, Clerk of Court Geri Smith, Chapter President Carter Strang, Past President Jim Satola and Rebecca Bennett.
Cleveland Chapter Trains the Next Generation of Trial Lawyers
By Thomas Baker, Partner, Tucker Ellis & West LLP
A group of aspiring trial lawyers from Garrett Morgan School of Science in Cleveland competed in their first mock trial competition on May 7. The students, all seniors from teacher Scott Garapic’s Street Law class, were trained and readied for trial by Chapter members Keven Eiber (Brouse McDowell), Chapter President Carter Strang (Tucker Ellis & West), and Tom Baker (Tucker Ellis & West). The Chapter’s involvement with Garrett Morgan stems from the recent launch of our Chapter’s new public service program.
The mock trial competition, a joint project between the Cleveland Municipal Court, Cleveland Metropolitan Bar Association and Cleveland Metropolitan Bar Foundation, is in its fourteenth year. But for this group of Street Law students, this year was their first. The competition pit Cleveland high schools against each other in a vehicular homicide trial arising out of a fictionalized student’s violation of a text-messaging-while-driving statute.
|
Left to right: Tom Baker, Scott Garapic, Keven Eiber, and Carter Strang |
For our Chapter members, the training involved one-on-one preparation sessions with the students, assisting them in witness and argument preparation, direct and cross-examination, and courtroom etiquette. The Garrett Morgan team presented the case both as prosecution and defense.
According to Garapic: “Our students really respond to the kind of personalized attention that comes from having a group of practicing lawyers spend time in their classroom. Giving them the opportunity to learn firsthand from trial lawyers, then stand up in a courtroom and actually try a case has been truly unique and rewarding.”
Added Garapic: “The lessons they learned about the law, and from the experience generally, are invaluable. We’ve got a group of younger students already interested in the 2011 competition.”
Garrett Morgan’s prosecution and defense teams fared well, and three students took home individual honors. Sydnei Sellers and Brianna Baker won outstanding attorney awards, and Christian Mauldin won an outstanding witness award.
The Chapter will be looking for volunteers to expand this outreach program for the 2011 mock trial competition. So please consider volunteering your time as part of this program next year.
Thomas Baker is a trial lawyer who specializes in product liability litigation, complex business and commercial litigation, professional liability defense and maritime litigation.
|
Kip Bollin |
|
Eric Daniel |
Greenwashing Class Action Lawsuits
By Kip Bollin, Partner, and Eric Daniel, Associate, with Thompson Hine
Introduction
“Going green” with a company’s products is both a positive corporate value and the commercially smart thing to do, but it also can be an invitation for litigation.1 Unfortunately, the confusion over what it means to be green and enhanced enforcement by the Federal Trade Commission (FTC) is beginning to fuel the next wave of consumer class actions. A company should take a hard look at its environmental claims before a consumer class action lawyer takes issue with its “earth-friendly” advertising.
Green Is gray
Because of the consumer tendency to purchase green products, most consumer-facing businesses, and many commercial suppliers, have felt pressure to advertise the green aspects of their products. But while the marketplace has no shortage of green products available, there is no consensus on a universal objective standard for defining what makes a product green. As a result, companies that advertise their products as green, natural, biodegradable, eco-friendly or earth friendly sometimes have inconsistent bases for using such labels, leaving consumers questioning whether their purchase was as environmentally friendly as they expected.
One emerging trend is the development of accepted independent indicia of greenness — the 21st Century equivalent of the Good Housekeeping Seal of Approval. Although there is no defined leader in green product certification, some popular options have emerged, including Green Seal, Greenguard, USDA Organic, Energy Star and Ecologo. These and other certification options focus on everything from the recyclability of product packages to the type and extent of chemicals that are emitted from the product. Perhaps in response to the lack of consensus as to what is a green product, some companies have even created their own, internal certification process for identifying certain of their products as environmentally friendly.
The FTC’s efforts to clarify the appropriate scope of environmentally friendly advertising
In an attempt to clarify an otherwise uncertain green marketing landscape, the FTC has taken steps to provide companies with guidance regarding the proper scope of their green marketing. Specifically, the FTC currently is finalizing the long-awaited update to its Green Guides (16 C.F.R. Part 260), which provide companies with recommended parameters for their environmental advertising. The Green Guides are administrative interpretations of FTC law and a statement of its enforcement intentions, not full-blown administrative rules. However, failure to conform environmental advertising to the Guides could result in the FTC taking civil action against the company pursuant to the Commission’s authority under Section 5 of the FTC act, which declares unlawful “unfair or deceptive acts or practices in or affecting commerce.”2
The Green Guides provide several practical examples of forms of marketing that could be viewed by the FTC as misleading. For example, the Green Guides warn against overstating the environmental attributes of a product. If a package is labeled “50 percent more recycled content than before,” but the manufacturer merely increased the recycled content of its package from 2 percent recycled material to 3 percent recycled material, the claim is deemed misleading because it is likely to convey the false impression that there has been a significant increase in the recycled material used in the product.3 The Green Guides also provide examples of deceptive forms of advertising the recyclability of your products. If a product is simply advertised as “recyclable” without further explanation, consumers are likely to assume that the entire product, and package, are recyclable. If the product and package that typically remain after use of the product are not recyclable, this form of advertising would be considered misleading to the FTC.4
In addition to its efforts to provide guidance regarding the appropriate scope of green marketing through the Green Guides, the FTC recently has taken a more aggressive stance by filing civil lawsuits against companies that it perceives have improperly advertised the environmentally friendly nature of their products. For example, the FTC announced in June 2009 that it was charging three companies with making false and unsubstantiated environmental claims in violation of Section 5 of the FTC act. Each of the claims relates to advertisements by retailers that certain products they sell are “biodegradable.” According to the FTC, the subject products are improperly advertised as biodegradable because the products do not comply with the Green Guides, which state that advertising a product as biodegradable requires proof that the entire product or package will completely break down and return to nature within a reasonably short period of time.
These high-profile steps by the FTC to reign in green marketing confirms its intention to hold companies to a higher standard when it comes to green advertising. Green marketing that is determined to be deceptive or misleading, known as “greenwashing,” also was recently highlighted by environmental marketing firm TerraChoice, when it published a study called “The Six Sins of Greenwashing.”5 The study, which follows a strict view of what constitutes deceptive green advertising, found that more than 99 percent of 1,018 common consumer products randomly surveyed exhibited one or more forms of greenwashing, including advertising that a product is “certified organic” even if there was no verifiable certification and advertising that a product is “100% natural” even though many naturally-occurring substances are hazardous. While TerraChoice’s position regarding greenwashing is extreme, it was given consideration by Congress in June 2009, when TerraChoice’s Vice President testified before Congress’ Subcommittee on Commerce, Trade and Consumer Protection.
State Law class actions pick up where the FTC leaves off
While a company may have honest intentions when manufacturing and advertising environmentally friendly products, the crackdown by the FTC on green marketing, the broad definition of greenwashing described by TerraChoice, and a market that is already skeptical of perceived corporate marketing ploys, create an environment where the manufacturer must tread carefully to avoid modern commercial class action litigation.
There is no private cause of action for violations of the FTC act.6 However, every state has adopted some form of consumer protection statute, allowing a private cause of action for fraudulent or deceptive advertising. Since many of these state consumer protection statutes mirror the FTC act, in whole or in part, the efforts of the FTC to prevent greenwashing may be used to bring private causes of action, on a class action level, against the same or similar companies.
In fact, this scenario already has appeared in other non-“green” FTC enforcement actions. In a recently filed action, plaintiffs are seeking certification of a nationwide consumer class arising from a well-known drug store’s allegedly fraudulent marketing of a product that it marketed based on the product’s purported ability to prevent or reduce the risk of catching the common cold. According to plaintiffs, the product is deceptively marketed because there is insufficient evidence that the product can actually prevent colds.
Likewise, class action litigation arising out of perceived greenwashing already has commenced. In California, a class action lawsuit was filed that involved advertising related to a granola bar that was described as “100% Natural.” Plaintiffs in that lawsuit alleged that the advertising is false, misleading, and deceptive because the product contains ingredients that they consider “artificial,” such as high fructose corn syrup. According to plaintiffs, use of the term “natural” implies that the product is not highly processed and, otherwise, is a superior product to a non-natural alternative. Since high fructose corn syrup does not occur in nature and, instead, is man-made, plaintiffs alleged that use of the term “natural” was false and misleading. Similar claims for alleged deceptive green advertising have already been filed and more will almost certainly be filed in the year to come.
These claims are typically based on state consumer protection statutes. While each states’ version of consumer protection may vary, consumer protection statutes typically require proof of a deceptive act or practice by defendant (either statutorily defined or interpreted by case law) that causes injury or damage to plaintiff.7 Since advertising is intended to induce large numbers of consumers to purchase products, a product that purportedly violates a consumer protection statute is often targeted as a potential class action lawsuit. If plaintiffs succeed in establishing a consumer protection violation, the remedies include the recovery of compensatory damages and, often, multiple and/or punitive damages.
The granola bar case mentioned above provides a glimpse of the types of claims the plaintiffs’ bar has begun to assert, focusing on ambiguous terms such as “100% natural.” In much the same way, the marketplace now has become replete with green terminology which has not been commonly defined.
How to avoid becoming a greenwashing target
Until the terminology used in green marketing is objectively defined, virtually every company that advertises a green product is at risk for potential litigation, which will likely come in the form of a consumer class action. However, taking the following steps to prepare a comprehensive marketing strategy can greatly reduce a company’s vulnerability to this type of litigation.
Step one — follow the green guides: To the extent that a company wants to use green buzz words, such as “biodegradable”, “organic”, or “100 percent natural”, the FTC provides a general outline of what standard should be followed.8 While the Green Guides are not law, they provide objective guidance to follow when developing this type of advertising terminology. Should a company’s advertising violate one or more of the guidelines that the Green Guides provide, plaintiffs’ attorneys will likely rely heavily on the Green Guides to show that the company, like other companies, was warned by the FTC that certain forms of advertising are misleading to consumers. By strictly following the Green Guides, a company will potentially reduce the ability of plaintiffs’ attorneys to use one of the few objective benchmarks for environmentally-friendly advertising.
Step two — use credible third-party certification: Until the FTC, extensive case law, or the marketplace develop a clear definition of the scope of environmentally-friendly advertising, the burden will be on product manufacturers to use plain terminology in product labels and advertising. While self-certification is not precluded, the most objective way to certify a “green” product is to use a nationally recognized, neutral, third-party certification process.9 While there are many credible third-party certification options (including Green Seal, Greenguard and Energy Star), the meaning of green is unsettled and evolving, and there is no clear-cut industry green standard-setting entity. It will be important to continue to monitor the marketplace to make sure that the potential certification option has not changed its standards, and that it still enjoys support from the current marketplace.
Step three — substantiate: Most green claims amount to assertions of fact concerning environmental or health benefits. When making such a claim, the company should have available to it reasonable scientific or equivalent evidence supporting the truth and relevance of the claim. If, for example, a company advertises that its new product reduces greenhouse gas emissions by 25 percent, it should have reliable evidence, obtained through valid tests replicating actual conditions of use, demonstrating that reduction.
Step four — keep in mind “The Seven Sins of Greenwashing”:10 Clearly, TerraChoice’s exceptionally broad classification of virtually all green product marketing as committing one or more sins creates the impression that there is no safe form of green marketing, but this vision of green marketing appears untenable. While some of its suggestions (such as the sin of fibbing, which essentially says that you should not lie about your products) make sense and should be followed, other sins should be taken with a grain of salt. Ideally, a company should review TerraChoice’s sins to get a sense for the types of marketing that plaintiffs’ attorneys will likely focus on as the basis for potential future class action lawsuits. After that, companies should strongly consider whether these strict standards are realistic for the marketplace, and consider them in collaboration with the Green Guides and advice from its legal counsel to determine the appropriateness of its intended marketing.
Step five — get a second opinion: The best way to limit a company’s likelihood of encountering green class action litigation is to have its legal counsel review its marketing plan prior to rolling it out. While it is easy to think that one’s advertising could never be perceived as false or misleading, even those with the best intentions can be attacked for poor marketing decisions. A company’s legal counsel can review the marketing plan in advance, identify common green marketing pitfalls, and greatly increase the company’s chance of avoiding litigation or, at the least, increase its chances of successfully defending a greenwashing class action lawsuit should one be filed.
Conclusion
Although most would agree that the availability of green alternatives to today’s consumers is a positive step toward meeting earth-friendly consumers’ purchasing expectations, companies need to be wary of a hasty step into green marketing without careful planning. Based on past consumer class action litigation, it is apparent that some attacks on green marketing are due, in large part, to the currently undefined marketplace. While the FTC has taken steps to pursue aggressively greenwashing causes of action, it also has created a potential roadmap for future private causes of action pursuant to state consumer protection statutes. In light of the uncertainty regarding what makes a product “green,” companies must be careful in preparing a thoughtful and objectively-verifiable marketing plan that will minimize the risk of being a greenwashing class action target. Through well-planned marketing, a company will be able to prepare itself to avoid a potential wave of greenwashing class action litigation.
Endnotes
1For example, a recent survey of 1,001 individuals, conducted by researchers at Yale and George Mason Universities, revealed that 64 percent of those surveyed believe that “corporations and industry” should do “more” or “much more” to address global warming. Leiserowitz, A., Maibach, E., & Roser-Renouf, C. (2010) Climate Change in the American Mind: Public Support for Climate & Energy Policies in January 2010. Yale University and George Mason University. New Haven, CT: Yale Project on Climate Change. http://environment.yale.edu/uploads/PolicySupportJan2010.pdf.
2See 15 U.S.C. §45(a)(1).
3See 16 C.F.R. Part 260.6(c).
4See 16 C.F.R. Part 260.7(d).
5“The Six Sins of Greenwashing” was updated in April, 2009 to include a seventh “sin.”
6However, businesses that feel their competitors are deceptively advertising their products can file suit under §43 of the Lanham Act to seek injunctive relief (to prohibit the competitor from continuing the deceptive advertising campaign) and/or monetary damages (if the plaintiff can prove actual reliance on deceptive advertising by consumers and a resulting economic impact on the plaintiff). Further, the National Advertising Division (NAD) of the Council of Better Business Bureaus provides a cost-effective alternative to litigation through a confidential and efficient advertising dispute resolution forum. The confidentiality is limited, however, because failure to resolve a claim through the NAD could result in a lawsuit being filed pursuant to the Lanham Act.
7In addition, some state consumer protection statutes require proof of defendants’ intent to be deceptive. See Ark. Code Ann. §4-88-107(a)(1);Nev. Rev. Stat. §598.0915; Wyo. Stat. Ann. §40-12-105(a). Further, most states require plaintiffs to prove reliance on the false or deceptive act or practice. See Ind. Code 24-5-0.5-4 (limiting damages to those “relying upon” a deceptive act); Wyo. Stat. Ann.§40-12-105(a) (limiting damages to those “relying upon” a deceptive act).
8See 16 C.F.R. Part 260.
9However, even objective certification does not insulate companies from potential liability.
10According to TerraChoice’s “The Seven Sins of Greenwashing,” companies purportedly commit the following “sins” when advertising their green products: (1) Sin of the Hidden Trade-off (suggesting a product is green based on an unreasonably narrow set of attributes while ignoring other important environmental issues); (2) Sin of No Proof (when an environmental claim cannot be substantiated by easily accessible supporting information or by a reliable third-party certification); (3) Sin of Vagueness (when a claim is so poorly defined or broad that its real meaning is likely to be misunderstood by the consumer); (4) Sin of Irrelevance (when an environmental claim is true but unimportant or unhelpful for consumers seeking environmentally preferable products); (5) Sin of Lesser of Two Evils (when claims may be true within a product’s category, but risk distracting the consumer from greater environmental impacts of the category as a whole); (6) Sin of Fibbing (when the environmental claims are false); and (7) Sin of Worshipping False Labels (when a product gives the impression of third-party endorsement where no such endorsement actually exists). See The Seven Sins of Greenwashing, Environmental Claims in Consumer Markets, Summary Report: North America, TerraChoice, Ap.
This article was first published by DRI in its May 12, 2010 issue of The Voice, Volume 9, Issue 19.
Kip Bollin is a Partner in Thompson Hine’s litigation area. He focuses primarily on the defense of complex product liability and business claims, including putative class actions. Eric Daniel focuses his practice on product liability defense and dispute resolution concerning automotive manufacturers, commercial and consumer products, injuries to persons and property, and other business transactions and relationships.
The authors wish to thank Thomas F. Zych for his contributions to this article, especially his advice and knowledge regarding FTC regulations.
Health Care Reform: An Overview of the Legislation and Discussion of Provisions Governing Employer Plans
|
Cathy Dunlay |
|
Stephen Riga |
By Cathy Dunlay, Partner, and Stephen Riga, Associate, Taft Stettinius & Hollister LLP
The enactment of the Patient Protection and Affordable Care Act (PPACA) on March 23, 2010, and the Health Care and Education Reconciliation Act (HCERA) one week later on March 30, 2010 (collectively, the “Acts”, for purposes of this article), represent the most extensive revision of the rules governing health care and insurance coverage in a generation.1 This article will provide a very high-level overview of the Acts and a more detailed discussion of the provisions of the Acts and regulations promulgated to date that affect employer-sponsored health plans.
Overview of the Acts
PPACA consists of nine titles that address insurance market reforms, expansion of coverage, Medicare/Medicaid payment reforms and new delivery models, health care workforce supply, fraud and abuse, and changes to the tax laws, plus a tenth title that amends the first nine titles. The HCERA contains further amendments to the provisions of PPACA (plus the Student Aid and Fiscal Responsibility Act, addressing student loans).2
Title I of PPACA contains insurance market reforms, including the extension of dependent coverage, prohibitions on lifetime and annual limits and pre-existing condition exclusions, establishment of temporary high-risk pools to provide coverage to individuals with pre-existing conditions, creation of health insurance exchanges, provision of premium tax credits, and coverage mandates for individuals and employers.
The Acts provide for federally-funded high-risk pools for individuals with pre-existing conditions as a method to provide coverage until 2014, when health insurance plans will be banned from excluding applicants with pre-existing conditions. Federal funding for the pools became available on July 1. In Ohio, the state has chosen to implement the high-risk program, which will be administered by Medical Mutual of Ohio.3 The Acts also provide for state-based American Health Benefit Exchanges and Small Business Health Options Program (SHOP) Exchanges, administered by a governmental agency or non-profit organization, to become operational in 2014.4 The health insurance exchanges will facilitate the purchase by individuals and small businesses with up to 100 employees of “qualified health plans.” Qualified health plans will be certified by the exchanges, and must offer “essential health benefits,” which are further discussed below.
Title II of PPACA contains Medicaid reforms, including expansion of coverage to 133 percent of the poverty level (in 2014), federal funding for that expansion, and adoption of a modified gross income test for eligibility. Title III contains Medicare reforms, including a number of reimbursement changes, provisions for quality initiatives and pilot programs, and establishment of the Medicare Independent Payment Advisory Board. Starting in 2015, if Medicare costs are projected to be unsustainable, the proposals from the Medicare Independent Payment Advisory Board will take effect unless Congress passes an alternative measure to achieve the necessary savings. Title IV of PPACA addresses disease prevention and public health, including Medicare coverage of an annual wellness visit with a health risk assessment and prevention plan services, waiver of coinsurance for many preventive services beginning in 2011, and grants for pilot programs targeting the 55 to 64-year-old populations.
Title V of PPACA addresses workforce supply, including provisions for grants, scholarships and loan repayment programs for primary care, pediatrics, nursing and mental health, grants for nurse-managed clinics, financial support for various training programs, and provisions addressing medical residency programs. Title VI contains broad-ranging provisions addressing fraud and abuse, transparency and physician self-referrals. Title VII provides for generic equivalents of biologics and expansion of certain drug purchasing programs, and Title VIII consists of the CLASS Act. This Act establishes a national, voluntary insurance program for community living and assistance services, to be operational October 1, 2012.
Title IX of PPACA contains revenue-generation and tax provisions. Its provisions include a requirement that employers disclose the value of the health insurance benefit provided by the employer on its employees’ W-2s, imposition of the so-called “cadillac tax“ on high-cost employer-sponsored coverage (commencing in 2018), new limitations on contributions to health FSAs commencing in 2013, elimination of health FSA, HRA, Archer MSA and HSA reimbursements for over-the-counter drugs without a prescription in 2011, and a number of new requirements that must be met by tax-exempt hospitals.
Employer-sponsored health plans
Employers, and the counsel who advise them, face a bewildering array of questions. Under a Memorandum of Understanding between the Departments of Treasury, Labor, and Health and Human Services, the government has attempted to answer many of the most immediate questions administratively through a barrage of new regulations.5
Interim regulations issued in June start the monumental task of putting flesh on the bones of health care reform in the years before the arrival of health insurance exchanges in 2014. On June 14, 2010, interim regulations defining grandfathered plans (the “Grandfather Regulations”) established rules on how to maintain or lose grandfather status.6 Two weeks later, on June 28, 2010, the administration issued another set of regulations, called a Patient’s Bill of Rights (the “Patient Protection Regulations”), which outlined several of the immediate changes to health care coverage that health insurance and employer-provided plans must implement in the coming months.7 Together, these new regulations effectively illustrate the tension between two stated purposes of the Acts: to allow employees to keep the coverage they have, and to make major reforms that extend coverage while bending the cost curve and slowing the rapid growth of health care spending.
What is a grandfathered plan?
One tenet of health care reform is the often-repeated promise that an employee happy with his or her coverage will be able to keep that coverage. The primary mechanism for keeping that promise is grandfathering. A grandfathered plan is a plan that existed on March 23, 2010, when PPACA was enacted. While a plan remains grandfathered, it is not subject to many of the Acts’ new requirements. However, the Acts do not address how a plan ceases to be grandfathered. The new Grandfather Regulations do.
Under the newly issued regulations, a grandfathered plan can make certain changes and remain grandfathered. A grandfathered plan can add new benefits, for example. Small adjustments may be made to a grandfathered plan’s deductibles, out-of-pocket limits or co-payments to keep pace with medical inflation plus up to an additional 15 percent, or, for copayments, an additional $5 (indexed to medical inflation). The employer’s contribution rate also may be reduced by up to 5 percent from the contribution rate on March 23, 2010. Changes in excess of these caps result in a loss of grandfathered status. A grandfathered plan can also lose its grandfathered status if the employer increases percentage cost-sharing requirements above the plan’s March 23, 2010, levels.
Other events can cause a grandfathered plan to lose its status. If the plan establishes a new policy, certificate or contract of insurance after March 23, 2010, that will end the plan’s grandfathered status. If benefits for a particular condition are eliminated or effectively eliminated, the plan will cease to be grandfathered as well. Failure to comply with the Grandfather Regulations’ disclosure and recordkeeping requirements can also lose a plan its grandfathered status.
Grandfathered status is designed to be temporary. It is anticipated that by 2014, more than half of all grandfathered plans will have lost their status.
Why would a grandfathered plan want to stay grandfathered?
Until a grandfathered plan loses its status, the Acts exclude the plan from many of the most significant new requirements. For plan years starting on or after September 23, 2010, grandfathered plans do not need to comply with the following new requirements:
- First dollar coverage of preventive care;
- Elimination of pre-certification for emergency services and the requirement that plans treat out-of-network emergency services as in network;
- Coverage to age 26 of all children, even those with employer-provided coverage available;
- Access to any available in-network primary care physician;
- Treatment by pediatricians as primary care physicians for children;
- Elimination of referral and pre-certification requirements for access to an OB/GYN specialist;
- Salary non-discrimination for insured plans; and
- Appeals process additions, including external review, the use of testimony, and continued benefits through the appeals process.8
In 2014, the Acts add new requirements from which grandfathered plans are excluded: guaranteed availability and renewability of coverage, cost sharing limits and disclosures, coverage for the routine costs of clinical trials, and further restrictions on plan use of health status information.9
Not all mandates are avoided by grandfathered plans. For plan years starting on or after September 23, 2010, all plans, grandfathered and non-grandfathered, must:
- Eliminate pre-existing condition exclusions for children to age 19;
- Abolish plan-wide lifetime dollar limits and allow otherwise eligible former participants who lost coverage due to the lifetime limit to re-enroll;
- End specific lifetime per-individual dollar limits for essential health benefits;
- Restrict annual dollar limits for essential health benefits to a single annual limit that is phased out by the end of 2013;
- Provide coverage to children until age 26, except where the child has employer-provided coverage available; and
- Place limits on the rescission of coverage.10
Though the effective date is unclear, the Acts also require employers with 200 or more employees to establish automatic enrollment in their health plan for new employees.11
For plan years starting on or after January 1, 2014, all plans must also:
- Eliminate all pre-existing condition exclusions;
- End all annual dollar limits for essential health benefits; and
- Limit plan entry waiting periods to 90 days.12
Many details await further regulatory guidance. For example, the definition of “essential health benefits” is critical for determining which plan limits are subject to the new lifetime and annual limit restrictions. The Acts list the following items and services as essential health benefits: emergency services, hospitalization, ambulatory patient services, maternity and newborn care, mental health and substance abuse services, prescription drugs, rehabilitative services, laboratory services, preventive and wellness services, chronic disease management and pediatric services — including oral and vision care for children.13 Further definition and clarification will be provided in future regulations. Until then, the departments have declared that a good faith effort to comply with a reasonable interpretation of the term will suffice.14
The Patient Protection Regulations offer a suggestion of the regulatory web to come, detailing rules for some of the Acts’ limits, tweaks, and revisions. In their treatment of emergency services, for example, the Acts require that out-of-network emergency services be paid without more restrictive administrative requirements (e.g., pre-certification) or cost-sharing requirements (e.g., copayments or coinsurance) than in-network emergency services.15 To ensure that any balance billed to the patient for out-of-network services after plan payment (a practice still permitted under the Acts and regulations) is reasonable, the Departments established a three-prong pricing structure for calculating the proper reimbursement of out-of-network services. Plans must determine and pay the greatest of three reimbursement rates: the in-network rate, the out-of-network rate (with in-network cost sharing), and the Medicare rate.16 This amplification of the Acts’ initial mandate indicates the administrative complexity presented by many of the Acts’ new rules.
The departments are issuing new regulations at an unprecedented rate, racing against the clock to provide guidance in time to allow plans to implement the necessary changes before open enrollment period for the first plan year subject to the new rules. By the time of publication of this article, new regulations will likely have been added to the stack of guidance for employers and their attorneys to review and implement.
Endnotes
1Public Law No. 111-148. Available at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=111_cong_bills&docid=f:h3590enr.txt.pdf. Public Law No. 111-152, available at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=111_cong_bills&docid=f:h4872enr.txt.pdf
2A section-by-section summary of PPACA, with the amendments of Title X and HCERA incorporated, is available at http://dpc.senate.gov/healthreformbill/healthbill96.pdf.
3Information on the Ohio risk pool is available at: http://www.healthcarereform.ohio.gov/Pages/Highrisk.aspx. A fact sheet on the federal program is available at: http://www.hhs.gov/ociio/initiative/hi_risk_pool_facts.html . On July 1, a Web site required under the Acts, which can be used to identify insurance options, including coverage through a risk pool, also was launched at: www.healthcare.gov.
4Exchanges and qualified health plans are addressed in Subtitle D of Title I of PPACA.
575 Fed. Reg. 34538, 34539-40 (June 17, 2010).
6Treas. Regs. § 54.9815-1251T, et. al.; DOL Regs. § 2590.715-1251, et. al.; 45 CFR § 147.140, et. al.; 75 Fed. Reg. 34538 (June 17, 2010).
7Treas. Regs. § 54.9815-2711T, et. al.; DOL Regs. § 2590.715-2711, et. al.; 45 CFR § 147.126, et. al.; 75 Fed. Reg. 37188 (June 28, 2010).
8See 75 Fed. Reg. 34538, 34542 (providing a chart indentifying which health plan mandates under the Acts are applicable to grandfathered plans).
9Id.
10Id.
11PPACA § 1511. The effective date was not included in the statute and has yet to be determined, but should be set in future regulations.
1275 Fed. Reg. 34538, 34542.
13PPACA § 1302(b).
1475 Fed. Reg. 37188, 37191.
15See id. at 37194; Treas. Regs. § 54.9815–2719AT(b); DOL Regs. § 2590.715–2719A(b); 45 CFR § 147.138(b).
16Id.
Catherine T. Dunlay is a Partner in the Health and Life Sciences Practice Group of Taft Stettinius & Hollister LLP, practicing in the Columbus, Ohio office. Her practice is devoted to representation of hospitals, physicians and other health care organizations and professionals in transactions and regulatory matters.
Stephen Riga is a member of Taft Stettinius & Hollister LLP’s Tax practice group. He concentrates his practice on employee benefits, counseling employers in the design, development and administration of health and welfare benefit and retirement plans. He can be reached at sriga@taftlaw.com and 317-713-3483.
Write an Article
Members of the Northern District of Ohio Chapter of the Federal Bar Association are invited to submit an article for an upcoming issue. Please note: it is generally required that authors be members of the FBA-NDOC in order for his or her article to be published in Inter Alia. If you are not currently a member but wish to submit an article, please "Join Here".
If you are interested in writing an article, please contact me at (216) 706-3874 or sjett@taftlaw.com.
Stephen H. Jett, Partner
Taft Stettinius & Hollister LLP
2010-2011 Newsletter Editor
The views expressed herein do not necessarily represent those of the FBA. This newsletter is published with the understanding that the FBA-NDOC is not engaged in rendering legal or professional services. © FBA-NDOC. Send any and all corrections, articles or other contributions you may have to:
Stephen H. Jett, Partner
Taft Stettinius & Hollister LLP
200 Public Square, Suite 3500
Cleveland, Ohio 44114-2302
e-mail at sjett@taftlaw.com
Welcome New Chapter Members
New FBA-NDOC Members (March to July 2010)
Douglas A. Andrews, Law Offices of Douglas A. Andrews
Fritz E. Berckmueller, Calfee Halter & Griswold, LLP
William D. Beyer, Wuliger, Fadel & Beyer
Brent L. Bondy, MacMillan, Sobanski & Todd LLC
Scott E. Bratton, Margaret Wong & Assoc.
Lynne H. Buck, U.S. Attorney’s Office
Michael C. Campbell, Hahn Loeser & Parks LLP
Maria A. Citeroni, Thompson Hine LLP
James A. Climer, Mazanec Raskin Ryder & Keller
Eric S. Daniel, Thompson Hine LLP
Catherine R. Donnelly, The Chandra Law Firm LLC
Catherine T. Dunlay, Taft Stetlinlius & Hollister LLP
Kevin M. Dunn, Hahn Loeser Parks, LLP
Jonathan L. Entin, Case Western Reserve University
Julie R. Fenstermaker, Frantz Ward LLP
Christine M. Garritano, Roetzel & Andress LPA
Arturo G. Hernandez, U.S. Department of Justice
Khary Hanible, Kerger & Hartman LLC
Christina M. Janice, Community Legal Aid Services, Inc.
Suzanne F. Jucaitis, Suzanne J. Jucaitis Attorney at Law
Daniel M. Katz, Attorney at Law
Jocelyn S. Kelly, Jones Day
Patrick R. Kramer, Friedman & Associates
Ellen M. Lander
Bozana Lazic, Roetzel & Andress LPA
Bernadette Marshall, Marshall Law Co.
Lauren H. Marshall, Hart Smith Law Offices
Matthew C. Marshall, Hart Smith Law Offices
Daniel P. Moore, Schuster & Simmons Co. PLA
Lori A. Pinjuh, Margaret W. Wong & Associates
Emily L. Seidman, Squire Sanders & Dempsey LLP
Daniel A. Starett, The Barrett Law Firm LLC
Rachel L. Steinlage, Meyers Roman Friedberg & Lewis
Julie A. Trout
MacAllister A. West, Hahn Loeser & Park LLP
Edyta Zydorek, Brown Zydorek Kats LLC
New Law Student Members through the Law School Initiative
Case Western Reserve University School of Law
Eric Bapes
Britney Bennett
Allison Kretz
Katherine North
Brett O'Brien
Nicholas Pompeo
John Samples
Benjamin Skomsky
Ryan Voorhees
Melissa Yasinow
Cleveland-Marshall College of Law
Ogenna Agbim
Christopher Baxter
Benjamin Beckman
Lon' Cherie' Billingsley
Howard Bob-Manuel
Aja Brooks
LaDonna Burrell
Brandon Cox
Jethro Dely
Joshua DiYanni
Danielle Doza
Erin Eurenius
Megan Fischietto
Kevin Golden
Griffin James
Paul Kelley
Sung Kim
Nicole Lester
Brett Moss
David Mullen
Patrick O'Connor
Drew Odum
George Ofor
Marilyn Robertson
Priscila Rocha
Jose Roman
David Schwark
Sherrod Seward
Hallie Shipley
Victoria Smith
James Smolinski
David Sporar
Stephane Stone
Jessica Taylor
Daniel Utrata
Mark Abramowitz
University of Toledo College of Law
Nicholas Adams
Kevin Ankney
Kevin Bashaw
Kawaki Braun
Jacalyn Crecelius
Rebecca Fahim
Brent Hartman
Brian Kelly
Bryan Latta
Douglas Leavitt
Sydney Leavitt
Aamir Mahboob
James Marin
Fredric Roth
Andrew Seger
Jay Umerley
Samuel Usmani
Zachary Wertz
Officers, Directors and Representatives |
||
Officers |
President President-Elect Vice President |
Secretary Treasurer Immediate Past President & Delegate to National Council |
Directors |
Hon. Randolph Baxter |
Charles A. LoPresti |
Representatives |
Public Representative Chapter Representative University of Akron School of Law Case Western Reserve University School of Law |
Cleveland-Marshall University of Toledo College of Law |
Upcoming Events
September 2, 2010 - Publicity Committee Meeting at Tucker Ellis & West (please contact Sanford Watson for more information)
September 8, 2010 - Board Meeting at McDonald Hopkins
September 13, 2010 - State of the Court Luncheon
September 17, 2010 - A Whole Trial in 3 Hours CLE (application for accreditation as an NLT CLE program will be submitted to the Supreme Court)
September 22 - 25, 2010 - FBA National Convention in New Orleans
October 7, 2010 - Publicity Committee Meeting at Tucker Ellis & West.
October 13, 2010 – Installation of Chapter President Kip T. Bollin
October 14, 2010 – Discovery Reform: Coming to a Courthouse Near You CLE - with Judge Jack Zouhary (application for accreditation will be submitted to the Supreme Court of Ohio)
October 28, 2010 – Brown Bag Luncheon with Federal Public Defender Dennis Terez
November 4, 2010 - Publicity Committee Meeting at Tucker Ellis & West.
November 12, 2010 - Advanced Federal Practice CLE (application for accreditation as an approved CLE program will be submitted to the Supreme Court)
November 19, 2010 - What You Need to Know About . . . CLE (application for accreditation as an NLT CLE program will be submitted to the Supreme Court)
December 2, 2010 - Publicity Committee Meeting at Tucker Ellis & West.
Not a member? Join today!
Benefits of membership in the FBA include:
- Access to a network of federal practitioners that reaches all 50 states.
- The opportunity to network and exchange information with federal practitioners in your local area through Chapter membership.
- A voice in Washington. The FBA is the foremost voice on behalf of federal practitioners. Whether it’s working with an oversight agency on new regulations that could impact federal practice or acting as an advocate on a particular initiative – the FBA advances effective practice before the federal bench.
- Leadership opportunities. There are many leadership opportunities available at the local, state, and national level. Your participation as a leader in a national association not only will enhance your membership experience, but will also give you cutting-edge knowledge of current developments in the federal practitioner’s arena.
- Access to an impressive list of incentive programs, thanks to FBA’s group buying power. Vendors include LexisNexis, MBNA America, Legalspan.com, LegalTimes, Liberty Mutual, to name a few.
- Continuing legal education (CLE) – over 700 hours! The FBA offers annually more than 700 hours of continuing legal education on the national, regional, and local levels. FBA members receive substantial discounts on registration.
Additional Benefits of membership in the Northern District of Ohio Chapter include:
- "Brown Bag" lunches with Northern District of Ohio judges.
- The Chapter's "New Lawyer Curriculum" which is a series of CLEs that satisfy Ohio's new lawyer CLE requirements.
- Chapter members attend the Chapter's yearly Ethics, Professionalism, and Substance Abuse CLE for free.
- The Chapter offers a program in cooperation with the Northern District that satisfies the requirements of Local Rule 83.5(d)(4) for admission to the Northern District of Oho Court.
- "Members Only" events that are free to all members and include quarterly networking breakfasts hosted by local law firms and the Chapter's annual summer social event.
- The Chapter's award winning newsletter, Inter Alia, offers a window into our Chapter's work and includes a number of informative articles by attorneys and judges.
- Rennillo Deposition & Discovery Rewards Program (see the Rennillo Rewards Program page on our web site detailing this exciting new program).
To join the Federal Bar Association and the Northern District of Ohio Chapter, click here and click “Join”.