CLOSE X
RSS Feed LinkedIn Twitter Facebook
Search:
FMG Law Blog Line

Archive for the ‘Government Law’ Category

SCOTUS Affirms FMG Victory In First-Of-Its-Kind 11th Circuit Flash Bang Case

Posted on: October 10th, 2017

By: Wayne S. Melnick and A. Ali Sabzevari

Previously, we blogged on a first-of-its-kind summary judgment obtained by Freeman Mathis & Gary in a Section 1983 case involving allegations of excessive force based on the police’s use of “Flash Bang.”  The case was appealed to the 11th Circuit Court of Appeals and that court affirmed the lower court opinion finding this case of first impression was the first in the circuit to address Flash Bang usage; and as such, the officer was entitled to the qualified immunity granted by the district court because there was no clearly established law on point.

In a one-line order issued earlier this month, the United States Supreme Court denied plaintiff’s petition for certiorari thereby locking in the 11th Circuit victory as controlling precedent. Because the 11th Circuit provided a bright line test for future Flash Bang use, it is imperative that all practitioners defending law enforcement officers who deploy Flash Bangs (as well as those officers themselves) be familiar with the rules provided by the court going forward.

If you would like a copy of the 11th Circuit opinion or more information, please contact either Wayne Melnick at [email protected] or Ali Sabzevari at [email protected].

Repaying Old Debts – The Supreme Court Limits FDCPA Liability for Scheduling Time-Barred Claims in Bankruptcy

Posted on: October 9th, 2017

By: Matthew M. Weiss

Earlier this year, the Supreme Court handed a victory to debt collectors when it held that the scheduling of a time-barred claim in bankruptcy was not a violation of the Fair Debt Collection Practices Act (FDCPA).

In Midland Funding, LLC v. Johnson, Aleida Johnson filed for personal bankruptcy under Chapter 13 of the Bankruptcy Code in the Southern District of Alabama. Midland Funding, LLC (Midland) filed a proof of claim asserting a credit card debt of $1,879.71. Johnson’s last charge on the account was in 2003, more than 10 years before Johnson’s bankruptcy filing, even though Alabama’s statute of limitations on the collection of debts was six years. Johnson objected to the claim and it was disallowed. Johnson then brought suit against Midland seeking actual damages, statutory damages, attorneys’ fees, and costs for a violation of the FDCPA, 15 U.S.C. § 1692k. After the district court determined that the FDCPA was inapplicable and dismissed the lawsuit, the Eleventh Circuit Court of Appeals reversed the decision, and Midland appealed to the Supreme Court.

In a 5-3 decision (with Justice Gorsuch abstaining), Justice Breyer, writing for the majority, first determined that a claim under the Bankruptcy Code was a “right of payment”, and that a creditor has the right to payment of a debt even after the limitations period expires. The Court also noted that a claim does not automatically have to be enforceable. Further, the definition of claim under the Bankruptcy Code provided that the claim could be “contingent” or “disputed”. Additionally, the Court found that the running of the statute of limitations was meant to be asserted as an affirmative defense by the debtor after the creditor asserted a claim.

Turning to whether the filing of a time-barred claim was “unfair” or “unconscionable” under the FDCPA, the court distinguished bankruptcy from civil cases in which creditors were subject to FDCPA liability for bringing suit on time-barred claims because “a consumer might unwittingly repay a time-barred debt” in a civil case. The Court reasoned that unlike civil cases, the consumer initiates bankruptcy proceedings, and are unlikely to pay a stale claim just to avoid going to court. Additionally, the Court said that the presence of knowledgeable trustees and procedural rules provided additional protection to debtors. The Court also noted that by filing a stale claim that was subsequently disallowed, that claim would be forever discharged, removing the debt from the debtor’s credit report and “potentially affecting an individual’s ability to borrow money, buy a home, and perhaps secure employment.” For all of these reasons, the Court concluded that the filing of a stale claim in bankruptcy was not “unfair” or “unconscionable” under the FDCPA.

The Supreme Court’s decision in Midland Funding legitimizes a major tool of debt collectors, who now can freely assert time-barred claims in bankruptcy proceedings with the hope that both the debtor and the bankruptcy trustee fail to assert a statute of limitations defense. As Justice Sotomayor wrote in her dissent, because debt buyers assume that a certain percentage of old debt will be written off as uncollectible, the Supreme Court’s decision will likely make consumer debt a more valuable commodity based on the assumption that a greater percentage of that debt will be collected in bankruptcy proceedings. Sotomayor had specifically predicted that “debtor collectors may file claims in bankruptcy proceedings for stale debts and hope that no one notices that they are too old to be enforced.”

In light of the Supreme Court’s decision, bankruptcy debtors should be extra vigilant about reviewing claims filed in their bankruptcy cases to determine whether a statute of limitations affirmative defense can be asserted. Conversely, creditors should not become too comfortable because, even though the Supreme Court’s decision precludes FDCPA liability for filing time-barred bankruptcy claims, the Supreme Court expressly declined to extend its holding to creditors who assert time-barred claims outside of bankruptcy.

If you have any questions or would like more information, please contact Matthew Weiss at [email protected].

 

Qualified Immunity and The First Amendment – Why Plaintiffs Continue To Struggle Proving “Clearly Established Case Law”

Posted on: October 3rd, 2017

By: Bradley T. Adler and Will Collins

The recent Eleventh Circuit decision Gaines v. Wardynski, 2017 U.S. App. LEXIS 18276, No. 16-15583 (11th Cir. Sept. 21, 2017), is a good reminder of the importance and value of qualified immunity as a defense to litigation in the Eleventh Circuit Court of Appeals (federal appeals court covering Georgia, Florida and Alabama).  In Gaines, a school teacher, Lynda Gaines, filed a Section 1983 claim against the school superintendent, Dr. Casey Wardynski, alleging violations of her First Amendment right of freedom of speech and freedom of association.  After Gaines filed suit and before discovery commenced, Dr. Wardysnki filed a motion to dismiss based on qualified immunity.  The district court denied the motion and Dr. Wardysnki appealed.

In short, Gaines’ claim arose out of a dispute in May of 2013 when Gaines’ father, a county commissioner, “blasted” the Hunstville City Board of Education and Dr. Wardynski for recent actions they were taking.  Gaines, who was a teacher in the Huntsville school system at the time, alleged that, after the article was published, she was denied a promotion to one of three open teaching positions in retaliation for her father’s comments. While the district court denied Dr. Wardynski’s motion for summary judgment based on qualified immunity, the Eleventh Circuit reversed.  Through its decision, the Eleventh Circuit reminded practitioners that, in order for a constitutional right to be clearly established by law under the doctrine of qualified immunity, the clearly established law must be specifically particularized to the facts of the case. The Eleventh Circuit concluded in Gaines that the case law that the district court and Gaines cited “was not particularized to the facts of the case, but rather merely set out First Amendment principals at a high level of generality.”  As a result, the Eleventh Circuit concluded that the defendants had not violated a clearly established constitutional right.

As a part of its decision, the court emphasized that whether a right is clearly established turns on whether the governmental official had fair warning.  According to the court, there are three methods for a plaintiff to show fair warning: (1) citing a materially similar case already decided; (2) pointing to a broader clearly established principle that should control the novel facts of the situation; and (3) where the conduct of a situation so obviously violates the constitution, prior case law is unnecessary.

Here, the court quickly moved past the second and third methods, which are rare and generally involve cases of egregious conduct. Instead, this decision turned on whether there was a materially similar case already decided. The Eleventh Circuit stressed that the “materially similar case” analysis is not a general inquiry, but rather must (1) be particularized to the facts; (2) be particularized to the context; and (3) give notice to the governmental official.  As a part of its analysis, the Eleventh Circuit stopped short of saying that the facts must be directly on point, but emphasized the facts must be close enough to put the “question beyond debate” and must come from a previously-issued decision of the United States Supreme Court, the governing federal court of appeals, or the applicable state supreme court.

In the end, the Gaines decision emphasized just how difficult it is for a plaintiff to overcome qualified immunity because of the level of particularity required for a case to be materially similar in facts and context.  As a result, when government officials are facing suits for constitutional violations, it is critical for them to remember to assess the potential use of a qualified immunity defense at the outset of the case.

If you have any questions or would like more information, please contact Bradley Adler at [email protected] or Will Collins at [email protected].

Will California Change the Statute of Limitations for Presentation of Minors’ Claims under the Government Claims Act?

Posted on: October 2nd, 2017

By: Owen T. Rooney

In J.M. v. Huntington Beach Union High School District, 2017 Lexis 2017, the California Supreme Court ruled that a minor plaintiff was required to comply with the time requirements for petitioning a court for relief under the Government Claims Act after a late claim was denied when the public entity failed to act upon the application.

On October 31, 2011 plaintiff J.M. suffered a concussion during a high school football game.  Plaintiff did not file a claim with the District within the six months as required by Government Code section 911.2(a). Almost a year after his claim accrued, he presented the District with a late claim application which was timely pursuant to section 911.4.  The District did not take any action on the claim.  Under Government Code section 911.6, if the public entity does not take any action on a late claim application, it is deemed denied on the 45th day after it was presented. Therefore, by operation of law, the late claim application was deemed denied on December 8, 2012.

On October 28, 2013 plaintiff’s counsel petitioned the Superior Court for relief to present a Tort Claim. Under Government Code section 946.6 (b) a petition for relief from the claims requirement must be filed within six months after a late claim application is denied or it is deemed denied by operation of law. The petition for relief thus should have been filed no later than June 9, 2013. The trial court denied the petition for relief. The Court of Appeal affirmed.

The Supreme Court rejected plaintiff’s argument that under section 911.6 (b)(2) the District was required to grant his late claim application and that this section superseded the “deemed to have been denied” language of section 911.6(c).   The Supreme Court  was able to reconcile these two provisions. In doing so, the Supreme Court did not suggest that a public entity should routinely ignore late claim applications and instead rely on the “deemed denied” language as a default position.  A public entity may fail to refuse to act for a number of reasons including there may be uncertainty as to when the claim accrued or the applicant’s status as a minor, the public entity may not have been able to complete its investigation or the public entity may have simply failed to act on the claim due to inadvertence.

The six-month limitations period in section 946.6 is mandatory.  The Supreme Court held it was plaintiff’s responsibility to petition the court for relief when the District failed to respond to his claim notwithstanding that they were required to grant it.

This decision provides clarity to the statutory construction of Government Code section 946.6. In short, despite the requirement that the minor’s late claim application be granted, a denial due to the public entity’s  inaction nonetheless starts the forty-five day clock.

Three of the Justices suggested that the Legislature address the “anomaly” created by the fact that a public entity does not have an obligation to provide the claimant with written notice that the application has been denied or that the six months to petition the Superior Court has started to run when the public entity  denied an application.

It will be interesting to see if the Legislature, in fact, addresses this issue.

If you have any questions or would like more information, please contact Owen T. Rooney at [email protected].

Ranking the State Courts: Is the Litigation Environment Getting Better?

Posted on: September 26th, 2017

By: Jacob E. Daly

Earlier this month, the U.S. Chamber Institute for Legal Reform (“ILR”) published the results of its 2017 lawsuit climate survey. Participants in the survey were 1,321 in-house attorneys and other senior executives at companies with at least $100 million in annual revenue who are knowledgeable about litigation matters and have recent firsthand litigation experience in each state they evaluated. The states were ranked on a scale of 0-100 based on grades assigned by participants in the following categories: (1) enforcing meaningful venue requirements; (2) overall treatment of tort and contract litigation; (3) treatment of class action suits and mass consolidation suits; (4) damages; (5) proportional discovery; (6) scientific and technical evidence; (7) trial judges’ impartiality; (8) trial judges’ competence; (9) juries’ fairness; and (10) quality of appellate review. Participants assigned a grade of A, B, C, D, or F for each category, and these grades were then translated to scores of 100, 75, 50, 25, and 0, respectively.

The ILR has conducted this survey 11 times since 2002 (2002-2008, 2010, 2012, 2015, and 2017), and Delaware was the top-ranked state every year until this year when South Dakota claimed the no. 1 ranking. Interestingly, the states in which Freeman Mathis & Gary has an office all rank in the bottom half of the country, which suggests that FMG attorneys are toiling in some of the most difficult legal arenas. Those states and their rankings and scores are: New York (29th; 68.4), North Carolina (33rd; 68.2), Pennsylvania (38th; 66.3), Georgia (40th; 64.1), New Jersey (41st; 63.8), Florida (46th; 60.5), and California (47th; 60.0). In addition, the survey identified the cities and counties with the least fair and reasonable litigation environments in the country, and several cities and counties where FMG has an office are on this list: Los Angeles, San Francisco, New York City, and Philadelphia.

The survey shows that the overall average scores are increasing, which means that in-house attorneys and other senior executives believe that the litigation environment is improving overall, though it is interesting to note that the ranking of each state where FMG has an office has gotten worse since 2010. About 63% of participants describe the fairness and reasonableness of state courts as excellent or pretty good, which is up from 50% in 2015 and 49% in 2012. Further, a substantial majority of participants (85%) say that a state’s litigation environment is likely to affect decisions about where to locate or do business, which is up from 75% in 2015 and 70% in 2012.

The full report on ILR’s survey can be found here.

If you have any questions or would like more information, please contact Jacob Daly at [email protected].