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Wednesday, August 09, 2017

Checking the boxes 

In McLeod v. The Jewish Center of the Blind, the pro se plaintiff had brought a discrimination action, but had failed to check the boxes on the form discrimination complaint indicating that, in addition to seeking relief under Title VII, she was seeking relief under the New York State Human Rights Law and the New York City Human Rights Law.  Her state law claims were dismissed on the pleadings and her federal claims were dismissed on summary judgment.

The plaintiff appealed, and the Second Circuit vacated the judgment and remanded the case to the district court, holding that, setting aside the unchecked items on the form complaint, based on the plaintiff's handwritten allegations, the district court should have been aware that the plaintiff was asserting claims under New York State and New York City law.  The Court stated  that "our holding is rooted in our well-worn precedent concerning a district court’s obligation to liberally construe pro se submissions. We do not expand that obligation here, nor do we purport to task district courts with the responsibility of scouring obscure bodies of law in order to come up with novel claims on behalf of pro se litigants. Rather, we conclude that in this case, where McLeod’s factual allegations supported claims under the well-known antidiscrimination provisions of the NYSHRL and NYCHRL, our existing precedent required the district court to construe McLeod’s complaint as asserting claims under those laws, regardless of her failure to check the appropriate blank on a form complaint"

The decision in the case can be found here.

Friday, May 12, 2017

Value of a rescission claim 

The Second Circuit, in a claim brought under the Magnuson-Moss Warranty -- Federal Trade Commission Improvement Act, held that the value of a contract, without offset, is the amount in controversy for purposes of a rescission claim that was brought under the Act, agreeing with the Third and Sixth Circuits.  In Pyskaty v. Wide World of Cars, LLC, the plaintiff sued the defendant, from whom she had purchased a car for violating the Act and under state law.  The cost of the car was $51,195.  The defendant claimed that the amount in controversy did not meet the jurisdictional threshold for a claim brought under the Act ($50,000), believing that the value of the claim was the amount paid under the contract minus the actual value of the car.  While the district court agreed with the defendant and dismissed the claim, the Second Circuit reversed, holding that the value of the claim met the jurisdictional threshold.

A copy of the decision in this case can be found here.

Wednesday, April 05, 2017

Adequate Notice under Fair Debt Collection Practices Act 

In Carlin v. Davidson Fink, the defendant, a law firm engaged in, among other things, the business of debt collection and foreclosure actions, commenced a foreclosure action against the plaintiff.  The defendant attached to the complaint a "Notice Required by the Fair Debt Collection Practices Act," which stated that the debt set out in the complaint will deemed to be valid unless the plaintiff disputed it within 30 days of receipt of the Notice.

On July 12, 2013, The plaintiff sent a letter to the defendant within the 30-day period disputing the validity of the debt and requesting a verification of the dollar amount of the the purported debt.

On August 9, 2013, the defendant complied, but stated that the amount provided included certain fees that were not yet due, and that if the amount was paid and any of those fees did not actually become due, such fees would be refunded.

The Fair Debt Collection Practices Act requires that within five days of an initial communication with a consumer, a debt collector has to provide a written notice containing, among other things, the amount of the debt.

The action was brought because plaintiff claimed that the defendant had not complied with that requirement.  The defendant moved to dismiss.the action, which motion was denied, but on a motion for reconsideration, the court dismissed the action.  The plaintiff appealed.  The two questions at issue was which document was the initial communication, and whether the notice had been provided.

The Court first held that the complaint was not the initial communication.  The Second Circuit had previously held that a complaint could be an initial communication, but the statute had been amended to eliminate a pleading as an initial communication.

The plaintiff's letter was not an initial communication because an initial communication under the statute was one sent by the debt collector to the consumer.

The Court held that the defendant's August 9, 2013 letter to the plaintiff was the initial communication.

The Court then held that the notice contained in the letter did not comply with the statute because because it "d[id] not specify what the 'estimated fees, costs,  [and] additional payments' are."  The Court stated that "[w]e do not hold that a debt collector may never satisfy its obligation under [the statute] by providing a payoff statement that provides an amount due, including expected fees and costs.  But a statement is incomplete where, as here, it omits information allowing the least sophisticated consumer to determine the minimum amount she owes at the time of the notice, what she will need to pay to resolve the debt at any given moment in the future, and an explanation of any fees and interest that will cause the balance to increase."

The Court acknowledged that the defendant's notice may be common in the debt collection interest, but stated that the Fair Debt Collection Practices Act "does not insulate a debt collector from liability merely because others in the industry engage in the same practice."

The Court vacated the order and judgment of the District Court and remanded the case for further proceedings.

The decision in this appeal can be found here.

Wednesday, February 22, 2017

No Common Law Right of Public Performance for Creators of Pre-1972 Sound Recordings 

A decision in Flo & Eddie, Inc. v. Sirius XM Radio, Inc has come down.

The plaintiff, which claim to own the rights to the recordings of "The Turtles," a well-known band with a string of hits in the 1960s, sued Sirius XM Radio, Inc., a radio and internet-radio broadcaster, claiming that Sirius infringed on the plaintiff's copyright in The Turtle's recordings.  On a motion for summary judgment, Sirius claimed that there was no public performance rights in pre-1972 recordings under New York law and that if such a right existed, it violated the Dormant Commerce Clause.

The District Court held that there was such a right and that it did not violate the Dormant Commerce Clause.  Sirius then moved for reconsideration or to certify its order for interlocutory appeal.  The Court denied the motion for reconsideration, but certified both the summary judgment and reconsideration orders for immediate appeal.

On appeal, the Second Circuit decided that there was an unclear issue of state law that should be decided by the New York State Court of Appeals -- whether there is a right of public performance for creators of pre-1972 sound recordings.

On December 20, 2016, the Court of Appeals held that New York common law does not recognize such a right.

Based on this finding, the Second Circuit reversed the District Court's order denying summary judgment and remanded the case to the District Court with instruction to grant Sirius's motion for summary judgment and to dismiss the case with prejudice.

The New York State Court of Appeal's decision can be found here.  The Second Circuit's decision can be found here.

Tuesday, February 14, 2017

FMLA -- Obligation on Employer to Ask for Information to Determine whether Employee is Entitled to Relief 

In Coutard v. Municipal Credit Union, the District Court dismissed a claim brought by an employee under the Family Medical Leave Act in which the employee claimed that the employer denied him leave to care for his grandfather.  The District Court held that the failure of the employee that he was in a loco parentis relationship with his grandfather doomed his claim.  The Second Circuit reversed, holding that the employer had an obligation to specify any additional information that it needed in order to determine whether plaintiff was entitled to such leave and remanded the case to the District Court for further proceedings.  The plaintiff had asked the Court to grant him partial summary judgment, but the Second Circuit declined to do so.  Even though it held that his claim should be dismissed on failure to give proper notice grounds did not establish as a matter of law that he was entitled to the relief he sought.

A copy of the decision can be found here.

Thursday, January 12, 2017

Special Education Case -- "Clear Consensus" 

The Second Circuit, in A.M. v. New York City Department of Education, held that where the school district developed an Individualized Education Program ("IEP") for an autistic child, that was against the clear consensus of the substance of the evaluative materials present at the IEP meeting of the Committee on Special Education ("CSE"), such IEP failed to provide the child  with a free, appropriate public education under the Individuals with Disabilities Act.  In so holding, the Court vacated the decision of the District Court and remanded the case for a determination as to whether the placement that the parents had made was appropriate and that equitable considerations favor reimbursement for the sum that the parents had to pay for that placement.

In A.M., the evidence before the CSE showed that A.M. needed intense applied behavior analysis therapy.  The school district had declined to provide for such therapy in the IEP.

A copy of the Court's decision in this case can be found here.

Monday, October 31, 2016

Certified Question on Punitive Damages in Cases under New York City Human Rights Law 

What is the standard for assessing punitive damages in a pregnancy discrimination under the New York City Human Rights Law?.  The law itself doesn't set a standard, so the district judge in Chauca v. Abraham, borrowed the standard  from the standard under the federal Title VII and based on that standard declined to give a punitive damages instruction to the jury.  On appeal, the plaintiff contended that this was error because the Human Rights Law should be construed liberally and independently of federal law.  Because there is no controlling New York precedent setting the standard and because that standard is an important issue of state law, the Second Circuit certified a question to the New York State Court of Appeals, asking it to decide as follows:

What is the standard for finding a defendant liable for punitive damages under the New York City Human Rights Law, N.Y.C. Admin. Code § 8‐502?

The decision in Chauca can be found here.

Clear and Unmistakable. 

The Second Circuit has reiterated its holding that if a contract agreement provides for arbitration for discrimination claims does not include statutory claims unless the contract's language is clear and unmistakable that such statutory claims are included.  The contract at issue in Winston Lawrence v. Sol G Atlas Realty Co. did not meet this standard.  While the contract stated that discrimination was prohibited and that any violation of the anti-discrimination provision were subject to arbitration.  Because nothing was stated as to claims  under anti-discriminatory statutes, the Court held that the contract did not clearly and unmistakably require such statutory claims be resolved in arbitration.  Accordingly, the District Court's decision sending the case to arbitration and dismissing the action was vacated and the case was remanded for further proceedings.  The Court noted that its decision was in concert with decisions of other circuits that have addressed the issue.

The decision in this case can be found here.

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