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Archive for the ‘Professional Liability and MPL’ Category

U.S. Supreme Court Finds General Discovery Rule Inapplicable to the SOL for FDCPA Violations

Posted on: January 16th, 2020

By: Nicole L. Graham

In Klemm v. Rotkiske, No. 18-328, 589 U.S. ____ (2019), the United State Supreme Court unanimously agreed there is no blanket discovery rule that, as a matter of statutory interpretation, applies to all cases arising under the Fair Debt Collection Practices Act (“FDCPA”).  The majority held that the plain text of 15 U.S.C. §1692k(d) unambiguously states the date of the violation starts the clock on the one-year limitations period.  The Court declined Rotkiske’s request to read into the statute a provision that limitations period begins to run on the date on which the violation occurs or the date of discovery of such violation.  Justice Thomas, writing for the majority, found it clear from the face of the text that “[t]he FDCPA limitations period begins to run from the date the alleged FDCPA violation actually happened.”  Accordingly, the limitations period for an FDCPA claim arising from the filing of a collection action complaint begins to run from the date the action is filed and not from the date the debtor is served the complaint.  Similarly, the limitations period for an FDCPA claim based on a debt collection notice begins to run from the date of the notice and not from the date the notice is received.

The Court did, however, leave the door open to the possible application of an equitable “fraud-specific discovery rule.”  The Court declined to decide whether the text of 15 U.S.C. §1692k(d) permits the application of equitable doctrines because Rotkiske failed to preserve the issue before the Third Circuit and failed to raise the issue in his petition for certiorari.

Justice Sotomayor issued a concurring opinion to note that the Court’s decision does not prevent parties from invoking an equitable “fraud-specific discovery rule.”  Justice Ginsburg, the lone dissenter, felt Rotkiske preserved the equitable “fraud-specific discovery rule” argument in his petition for certiorari, and found the allegations of the complaint should suffice under the equitable “fraud-specific discovery rule” to permit adjudication of Rotkiske’s claim on the merits.

Because the question of the applicability of equitable exceptions to the FDCPA’s statute of limitations remains unresolved, it would not be surprising to see the issue before the Supreme Court again soon.

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

Tips on Dealing With Pro Per Parties In California

Posted on: January 15th, 2020

By: Greg Fayard

At some point in their career, lawyers deal with the unrepresented—or pro pers. In California, there’s now an ethical rule that governs how to fairly and properly engage with opposing parties who do not have lawyers.

Rule 4.3 of the Rules of Professional Conduct for California lawyers says a lawyer cannot tell an unrepresented party he or she is disinterested or neutral. If the lawyer reasonably believes the pro per thinks the opposing lawyer is neutral, the lawyer needs to make a reasonable effort to correct that misunderstanding.

If a lawyer knows or suspects the interests of the unrepresented person conflicts with the lawyer’s client, the lawyer cannot give legal advice to him or her, but may advise the person to get counsel. Further, lawyers shall not try to get privileged or confidential information from pro pers. Under Rule 4.3, a lawyer can negotiate with unrepresented parties, but the lawyer must disclose that he or she represents an opposing party.

The policy behind this rule is fairness to pro pers, and to not take advantage of them because they do not have counsel.

If you have any questions or would like more information, please contact Greg Fayard at [email protected], or any other member of our Lawyers Professional Liability Practice Group, a list of which can be found at

California Lawyers Should Not Lie

Posted on: December 20th, 2019

By: Greg Fayard

It seems obvious, but lawyers shouldn’t lie. A new Rule of Professional Conduct applicable to California lawyers says that while representing a client, a lawyer shall not knowingly make a false statement of material fact or law to a third person.

Rule 4.1 is aimed at lawyers communicating with opposing counsel or an opposing party. This duty to not misrepresent facts or law to others includes a lawyer “agreeing” with statements he or she knows are false. For example, if a lawyer hears a factually untrue statement said in a court hearing, and orally agrees with that statement, knowing it is false, that verbal affirmation runs afoul of the rule.

However, if the lawyer remained silent after hearing the false statement, such silence would likely not violate the rule—as silence is not an affirmation. Of course, the best practice for all lawyers, in California and elsewhere, is to tell the truth, don’t lie to others, and correct statements that the lawyer knows are untrue, even if it may not necessarily help the client’s case.

If you have any questions or would like more information, please contact Greg Fayard at [email protected], or any other member of our Lawyers Professional Liability Practice Group, a list of which can be found at

Loss of Earnings Calculations – Experts – Damages – California

Posted on: December 16th, 2019

By: Chuck Horn

California just changed the law on recovery of loss of earnings.  Traditionally counsel, and experts, would look to the actual earnings history of the plaintiff, or plaintiff’s decedent, in the years before the accident or injury.  Subpoenas and Requests for Production of Documents would seek the personnel file, the W-2s, the date of initial employment and pay rate, and the person’s wage-increase progress, promotions, and likely future promotions and pay raises, and information to calculate life expectancy.  Then independent forensic economists would be given this information and would investigate the known statistics that apply to that person and calculate reasonably likely “past” earnings from the accident to trial, and reasonably likely “future” loss of earnings.  Seems simple, right?

California has just changed the way all this works.  The California legislature changed the law (Civil Code §3361, enacted by SB 41 in 2019) for civil damages for loss of earnings because the results of past practices “are a reflection of gender pay gaps and workforce discrimination,”  and “perpetuate systemic inequalities” and “disproportionately injure women and minority individuals by depriving them of fair compensation,” recognizing that “[a]ny generalized reduction of civil damages using statistical tables alone, based on a plaintiff’s membership in a protected class identified in Section 51 of the Civil Code, is counter to the public policy of the State of California.”

Effective 01/01/2020 Section 3361 has been added to the California Civil Code, as follows: “Estimations, measures, or calculations of past, present, or future damages for lost earnings or impaired earning capacity resulting from personal injury or wrongful death shall not be reduced based on race, ethnicity, or gender.”  This is a significant change to past practices of counsel and experts for all sides in civil litigation in California and must be taken into account in claim evaluation and trial preparation.

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

The Courtroom Sins of Your Attorney: Punishable?

Posted on: December 9th, 2019

By: Thomas Hay

Two recent Massachusetts cases: Wahlstrom v. IPA IV Management Company, Inc., et al., and Fitzpatrick v. Wendy’s Old Fashioned Hamburgers of New York, Inc., et al., were granted motions for a new trial following a jury verdict awarded in the plaintiffs’ favor. The courts’ decisions to award a new trial in both matters involved the plaintiffs’ attorneys improperly questioning witnesses or going over the line in either opening or closing statements.

The defendants in each of these cases urged their respective judges to apply the four-factor framework for considering claims of prejudicial misconduct by an attorney, as set forth by the Massachusetts Appeals Court in its 2014 decision of Fyffe v. Massachusetts Bay Transp. Auth. Most importantly, the fourth factor of the Fyffe framework states that the court should prove “whether the error, in the circumstances, possibly made a difference in the jury’s conclusion.”

However, the Appeals Court, in its decisions in Wahlstrom and Fitzpatrick, held that the Fyffe framework is not a proper standard for a trial judge to use when considering motions for a new trial due to prejudicial attorney misconduct. Rather, the appropriate standard can be found in Evans v. Multicon Construction Corp. That case provides that a judge is to conduct a “survey of a whole case” and determine whether a “miscarriage of justice” would result if the jury’s verdict were upheld.

In the Wahlstrom matter, Judge Wilson temporarily voided a jury award of $4 million for a woman raped in a Boston parking garage. In the Fitzpatrick matter, Judge Brieger temporarily voided a jury award of $150,000 for a woman who required oral surgery after biting into a bone that was inside a Wendy’s hamburger. Each case involved its own set of claimed errors for which the judges relied on in ruling whether a new trial was warranted. Both Judge Wilson and Judge Brieger concluded, respectively, that curative instructions were inadequate to cure the claimed errors and granted motions for a new trial.

In Wahlstrom, the Appeals Court reversed the granting of defense’s motion for a new trial and concluded that the claimed errors upon which Judge Wilson based his decision were not sufficient to rise to the level of a “miscarriage of justice.”

In Fitzpatrick, Judge Brieger oversaw a retrial where a different jury awarded a plaintiff’s verdict of $10,000 – which amounted to $140,000 less than the initial jury award to the plaintiff. The Appeals Court stated, on remand, Judge Brieger “need not reconsider whether aspects of plaintiff’s counsel’s closing [argument] were impermissible.” In its decision, the Appeals Court instructed that a judge is not to act as a “13th juror” and set aside the verdict, just because they would have reached a different result. Nor is a judge to use a mistrial as a form of sanction for attorney misconduct. Moreover, the Appeals Court cautioned that a smaller verdict size awarded in a second case does not necessarily indicate that the jury in the first case was “misled or swept away” when a decision as to liability is consistent in both cases.

The Appeals Court’s decision in both Wahlstrom and Fitzpatrick appear to indicate that trial judges do not have the authority to punish parties for the sins of their attorneys, unless they create a “miscarriage of justice.” As such, greater incentive now exists for attorneys to “toe the line” in regard to courtroom conduct, stopping short of creating such a “miscarriage of justice.”

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