Friday, October 12, 2007

Re: Encouraging Discretion in Blogging Is Better Than Restricting It

Carolyn Elefant of the blog recently published an interesting post, here, entitled "Encouraging Discretion in Blogging Is Better Than Restricting It." Elefant's post was itself a response to Connecticut Employment Law blogger Daniel Schwartz' "The Blog Post I Didn't Publish," here, and here is my two cents:

I am a relatively new blogger, but there are definitely some difficult choices in deciding what to post. First, blogging is habit forming, and as a junior associate I don't want it to detract from my work. Second, there is a danger of damaging a pending case. In fact, a week or so ago I read a post that discussed an appeal where I had written the bulk of the winning brief, and I was tremendously tempted to post a comment that drew from an an off-the record discussion with the opposing attorney about his theory of the case. The comment likely would have been harmless, and was well intended, but with the possibility of the matter being re-filed I thought it tread into some questionable territory.

If my firm were to create guidelines, however, I would hope they would be along the lines of the ethical canons, as opposed to strict directives. The nice part of blogging is the freedom of it. Most of what I write is heavily constrained by seriousness and a desire to maintain a certain level of decorum, but in a blog post you can -- in theory -- write whatever you want and be as stylistically creative as you want.

Wednesday, October 10, 2007

Letter Writing

So, I've spent my day writing letters. I recently completed one full year since graduating law school, and every day is still a series of learning experiences (as, I suspect, it will always be). I am something of a writer-in-residence for a midsize firm, but I also manage a small case load of more complex cases. I've developed a habit of making lists. Almost every day I sit down and write out four or five major goals for the day, and usually only finish one or two of them.

For the last week or two there has been a lull in motion/appellate writing. I still have one motion and one appeal on my to do list, but they aren't as time sensitive as usual. With this lull, I have had the opportunity to follow up on discovery matters that, unfortunately, have settled to the bottom of my to do list and have been piling up.

Whenever I start on this type of administrative work, in the back of my head I think: I can't wait until I'm more established and I have an associate to pawn these things off on. I complete these assignments well, of course, but it doesn't make them any more fulfilling. When I draft a brief, I have work product that I can look at proudly and beem at as-if it were a trophy; making a productive phone call simply doesn't have the same affect.

My new strategy, however, is letter writing. Not only does it help document the progress of the case, and hopefully speed the case along, but it also provides a tangable work product. So, now I am taking a little more pride in my "to confirm our earlier phone conversation" letters, and I am mentally structuring my nebulous list of "discovery" tasks as a series of letters that need to be written.

Contingent Fee Set-Off In Legal Malpractice

The Poppe Law Firm Blog of Louiseville Kentucky today published a post, here, discussing the debate over whether an attorney subject to a malpractice suit can seek a set-off of the contingent fee they would have earned if they had been successful in the case.

My Comment:

I know that in New York you cannot take a set-off, and it makes sense. The 1/3 now goes to the malpractice lawyers, not the tortfeasor lawyers. For the tortfeasor attorneys it seems unfair, since they have the double-hit of not only losing the fee but also paying the damages. There is nothing unfair about that, however, because the tortfeasor attorneys are the ones who screwed up, and thus should not be allowed to complain about their own lost profits. If a doctor commits malpractice and kills someone, he cannot claim a set-off for the profits he would have gained from seeing that patient in the future; the attorneys fee setoff relies on the same rational.

Tuesday, October 9, 2007

Re: Jobs At Biglaw Limited - So Why Is This News?

In "Jobs At Biglaw Limited - So Why Is This News?," here, Carolyn Elefant of the "My Shingle" Blog offers the observation that the recent WSJ article, describing how prospective law students misunderstand their future salary prospects, in part, because of misleading marketing by law schools, can be read "not as a caution to law students who attend lower tier schools but as a scare tactic to remind lawyers that as much as they hate their 80 hour billable weeks, life could be much, much worse"

Here's my comment:

Your take on the WSJ story is interesting. I think there are a few factors that played into the timing of the story. People have been complaining about misleading law school marketing for years. I know I started complaining about it, with many of my fellow students, during my second year of law school in 2004, and over the last year I have since written several blog pieces, and a letter to AG Cuomo. And many people have been voicing their complaints for at least as long, and often with more diligence.

One factor is the job market: it is getting worse. Another is the financial aid scandal, which led people to question the assumed integrity of institutions of higher education. A third factor is the big firm salary wars, and I think your "conspiracy theory" plays into that factor. For the past several months there has been a great deal of press coverage discussing BigLaw first year associate salaries, and many 1st year associates at large firms, despite making multiple times what their slightly lower-ranked classmates earn, legitimately feel that they are underpaid. Large mega-firms appear to simply have money to burn, so why not give it to the new associates. In fact, many new associates whose firms have raised to 145 or 150 but are still below the top firms salaries, feel that they are underpaid.
In that respect, the WSJ -- which is one of the newspapers that provided the most coverage to the salary wars -- was providing much needed scope to its coverage of the legal job market, and making amends for its role in proliferating the myth that a law degree is a license to print money.

One startling fact, however, is that -- unlike the financial aid crisis -- there has been little response to this issue other than increased traffic in the blogosphere. To my knowledge, none of the law schools named in the article have made any statements on the issue, and no public investigations have ensued.

The only somewhat related ameliorative measure is the government's new student aid package. Government financial aid, however, is a scam, even if well intentioned. Students do not borrow from the government; rather, the government subsidizes financial institutions who lend to students at a discount. The effect of this system is that higher education institutions raise tuition in response to easy money, the financial institutions push as much debt on the students as possible under the guize that there is a low interest rate. In the end, the private schools and the financial institutions are huge winners, while any benefit the students gained by low interest rates is negated by the increased debt load and the tax payers overall are hurt.
If nothing else, although it does not directly address the misleading marketing issue, a better system would be for the federal government to institute a direct lending program that is funded through a special bond release subsidized with a tax on high-tuition private schools. That would help unravel the tangled web of conflicting interests that have hampered higher education oversight.

Another step would be for consumer lawyers to start going after law schools for misleading marketing practices, but what self-respecting lawyer wants to sue a law school?

Friday, October 5, 2007

Family Guy

Family Guy has been sued for an episode where Peter Griffin, one of the main characters, sings "I need a Jew," set to the tune of "When You Wish Upon A Star." 

For anyone who is unfamiliar with the show, Family Guy is comedy cartoon focusing on pop culture satire/parody. In the "infringing song," Peter explains his poor financial skils and decides that he needs to hire a jewish person to manage his money. Here is the complaint, courtesy of the WSJ, (typos and all). Although the lyrics were technically antisemetic, the song was clearly intended in good fun and I doubt anyone, other than someone who finds Family Guy offensive overall, would be in any way consider the parody as a factor in valuing the tune negatively. The show is often politicaly incorrect, but rarely if ever mean spirited. Can a case be made that The Family Guy's parody has decreased the value of "When You Wish Upon A Star"? Come-on! In fact, the parody exposure (like the exposure the plaintiffs attorneys are gaining from this lawsuit) probably has positive marketing value. If anything has hurt the value of the tune, it is the fact that the copyright holder, Bourne Co., is bringing this lawsuit. As sympathetic as I am for plaintiff's lawyers going after deep pockets, that's just not right. Not only am I a Family Guy fan, I am also a fan of the First Amendment.

I hope the Seth Macfarlane does a parody of overzealous copyright infringment and defamation lawsuits next.

Wednesday, October 3, 2007

Re: Marci Hamilton, "Did the Six Supreme Court Justices Who Chose to Attend the 54th Annual 'Red Mass' Exercise Bad Judgment?"

In her Findlaw Writ column, here, Cardozo Law Professor Marci Hamilton, also a noted law and theology scholar, argues that the Supreme Court Justices who attended this year's "Red Mass" exercised poor judgment in that their attendence offered the appearance of impropreity. I disagree, for the most part.

Prof. Hamilton's view is well thought out, and she is careful to explain that she is not arguing that the Justices should be banned from religious observance, but to the extent she argues that mere attendence gave the appearance of impropriety, I find it doubtful that the Justices' attendence at the mass in any way reflects that the Catholic Church is exercising undue influence over United States law.

What I take from the Justices' attendence is a demonstration of respect for the First Amendment, gratitude towards those people of all religious persuasions who elevate the Law to a stature of something sacred, acknowledgment of the county's sizeable Catholic population, and encouragement of that population to take an active role in the process of Law. I once attended a lecture by Guido Calebrisi where he spoke -- in wholly secular terms -- of "faith and trust in the rule of law," and I believe that the Justices' attendence sends a message to American Catholics that they can have such faith in the American Judiciary.

What is not acceptable, however, is the Catholic Church using this opportunity as a political pulpit for hot button issues. By attending, particularly for those Justices who are not Catholic, let alone not Christian, the Justices offered a showing of respect to the Catholic population of the United States. To the extent the sermon focused on areas of discord rather than offering a unifying and supportive message, this was disrespectful to both the Judiciary and the American Catholic populous.

I was raised in a traditional Catholic household, and still consider myself a Catholic despite the fact that I disagree with the Church's viewpoint on almost every issue of controversy (and many that aren't even that controversial). Catholics should be angry at their church. The Church is of course entitled to its viewpoint on moral issues, but should express that viewpoint in an appropriate manner and forum. If the "church" wants to express its opinion on an issue of constitutional law, request to submit an amicus brief (with sound, rational arguments that comport with American notions of democracy and civil liberty).

In my opinion, silencing personal freedoms is about as un-catholic as an idea can be. Catholic means "universal," afterall. The First Vatican Counsel, I think (or somewhere thereabouts) defined the Church by saying something to the effect of "the Church is the community of believers bound together by the pursuit truth." The Church's persistent attack on personal freedoms runs counter to its central mission of pursuing the truth.

Faith is meant to be uplifting and socially beneficial, and in this context it appears -- although I have not read the actual sermon -- that the sermon was misquided proselytization. So, kudos to the open minded justices; shame on the Church.

Monday, September 10, 2007

Re: Skilling/Enron Appeal

A few days ago, the WSJ Law Blog published a post, here, discussing Jeffrey Skilling's 237 page appellate brief in the Enron criminal prosecution. Since I concentrate in appellate practice and commercial litigation, I thought the tome was worth taking a look at (although I did not have time to read the whole thing).

Generally, appellate briefs have strict page and word limits, (in federal court, the limit by default is 14,000 words (i.e., a little over 25 pages of text). Appellate courts also generally discourage bullets and charts, which this particular brief used a great deal. Noticibly absent from the brief, at least the version given to the WSJ, are a table of contents and table of authorities.

O'Melvany and Myers, however, is a good firm, and if you're at the top you get to bend the rules. The brief makes four arguments: (1) the prosecution's legal theory was faulty because "honest services" fraud, i.e. fraud that was meant in good faith to help the shareholders, is a misunderstanding of the criminal law, which requires intent; (2) the jury instructions were bias; (3) the jury was bias, both due to incomplete questioning by the court during jury selection and the refusal to change the venue from Houston, a city that was particularly hurt by the Enron callapse; and (4) prosecutorial misconduct consisting of withhelding and destroying evidence and coercing witnesses.

To weed out these arguments, however, you will need to read eleven pages into the brief. The strategy is clear: overwhelm the appellate court with rhetoric and complex argument so that they can better understand how the jurors and lower court were overwhelmed by the publicity and complexity of this case.

My guess is that the appellate court will grant some extension, perhaps double their ordinary word limit and give the prosecution a higher word limit and additional time to respond, but I think the court will see, as is clear from looking at the brief, that the brief needs an editor to go through and slash the surplus.

One of the main things they teach in legal writing courses is to be succinct and avoid excess verbiage. In practice, this skill is slowly pruned, since -- unfortunately -- the "weight of the evidence" often refers to the literal heft of the papers submitted rather than the substance of the argument. Authorship on the brief is shared by nine attorneys (and, most likely, there are countless unnamed junior associates and researchers) and it seems that the overall editor did not keep the individual writers on as short of a leash as he needed. The arguments are good, and as someone who writes appellate briefs I understand that it is simply painful to cut out days worth of research, or catchy phrases that made you feel clever when you wrote them, but it needs to be done.

One of my pet pieves, although I do it all the time, is co-writing. In every complex matter I've worked on there has been at least one argument that I believe in strongly which is dropped from the final brief. I have a penchant for arguments where my opposition has failed to jump through a technical hoop, and my experience has been that most judges, particularly federal judges, are prone to agreeing with these arguments because they are clear cut: this person was required to do something, they didn't do it, hence, I win. My supervisor, on the other hand, is more a fan of what one of my appellate advocacy professors called "uncle joe" arguments: common sense, fact centered, moral arguments. Which, since judges are human, are persuasive. Overall, however, I can't be too angry about it, because the balance works well. They need someone with a liberal red pen.

Saturday, September 8, 2007

Re: Are Plaintiff's Attorneys Becoming Targets?

There was a post on the blog today entitled, Are Plaintiff's Attorneys Becoming Targets? discussing whether the Federal Government and various special interest groups are now targetting the Plaintiff's bar. Plaintiff's publications such as "Trial: The American Associate of Justice Journal" have been discussing this issue for a long time, and there has been academic scholarship on the issue for decades.

In short, it is well established that yes, Special Interest groups and, in turn, the Federal and State governments are prone to attacking trial lawyers. It is a reciprocal relationship, since the goal of the Trial bar is for the most part, unfortunately, to go after deep pockets. The Trial layers vilify "Corporate America," and Corporate America vilifies the trial lawyers. It is so engrained in the anglo-american culture that it can be considered a quasi-governmental function akin to journalism. Trial lawyer's do not simply target insurance companies, and point out the most shameful conduct in that industry, they do it to every industry.

Tort Law, (the field of law that encompasses personal injury, medical malpractice, and the other retail t.v. commercial type issues, as well as more complex fiduciary and commercial matters), is the field of law that involves governmentally imposed morals, and thus Tort lawyers are, at least they are supposed to be, the gate keepers for public responsibility.

We probably are seeking an era where special interest groups are particularly influential and exploiting the Plaitiff's bar's failings (while hiding their own). The lesson from the situation, however, deals more with the big picture. If the less-ethical side of Corporate America (bear in mind I am a big fan of corporate america, I just feel that you need to keep an eye on its leaders, since not all of them are ethical) is winning this battle, it means that we need stronger gatekeepers.

What keeps the Plaintiff's bar down is a lack of public respect and unfortunately low salaries. Money is concentrated at the top, just like in corporate america, and Plaintiff's lawyers are disproportionately composed of sole practitioners and small firms. Salaries for the Plaintiff's bar, (median and mode moreso than average) are a mere fraction of the salaries for their large-firm and defense counterparts. There's two explanations: first, that the 1/3 contingency fees are less lucrative than hourly billing; and second (the one I find more credible), that the money does not trickle down (and I don't mean this to knock my current firm, it is an industry wide epidemic). The average Plaintiff's attorney, however, even if they are making less, has a chance -- if they are successful -- to do better than they would as a partner at a large firm.

What we need are better Plaintiff's attorneys, both as an ethical and practical matter. Top law school grads go to large firms, and Plaintiff's work -- as an entry-level job -- is considered profoundly less respectable than public interest but with near comparable pay. Until that changes, the Plaintiff's bar will be on the defensive.

Tuesday, September 4, 2007

Employment Attorney - Court of Appeals Grants Absolute Privilege From Defamation For Statements Made To NASD In Connection With Termination of Securities Dealers

In Rosenberg v MetLife, Inc., 2007 NYSlipOp 02627 (March 29, 2007), over strong dissent, the NY Court of Appeals extended absolute privilege from defamation for statements made by an employer on the NASD's U-5 form, stating taht "statements made by an employer on a NASD employee termination notice are subject to an absolute privilege in a suit for defamation."

According to NASD regulations, whenever a securities dealer is terminated, the employer is required to file a U-5 form, stating the reason for termination, within 30 days. Traditionally, statements made by a former employer have been subject to only a "qualified privilege," meaning that an employer may comment on the reason for terminating an employee so long as the comments were made without malice, i.e. they were made in good faith and for a legitimate purpose. For example, when an employer receives a reference phone call, they are free to say the reason the employee was fired, such as being suspected of robbery or some other immoral act, so long as the employee actually was suspected of the immoral act, without fear of legal repercussions.

By granting an abosolute privilege, however, which is traditionally reserved for judicial and legislative proceedings, an employer is wholly immune from liability unless the statements are completely unrelated to the purpose of the communication. The court's reasoning rested on the premise that the NASD is a self-regulating body -- which has the capacity to deter malicious comments within its own framework -- and the public interest in encouraging complete disclosure to the NASD without threat of reprisal outweighs the invidivual interest in any possible defamation action.

Friday, August 31, 2007

Consumer Protection - Overdraft Fees, UK Curbs Excessive Fees; US Efforts Not So Well Received

According to an article today in the UK Times, here, Britain's Office of Fair Trading has initiated a suit against UK banks for charging illegal overdraft fees. According to the coverage, the OFT believes that the illegal overdrafts were derived from "unauthorised overdrafts, bounced cheques and unpaid direct debits."

Abusive overdraft protection charges have also been a major problem in the US, but the government has not stepped in and private lawsuits have generally not been successful. In the US the overdraft problem has two main causes. First, the some banks do not adjust the accounts in real time to reflect debits and holds (despite the technology to do so), making more money appear to be available in the account than there actually is and thus allowing transactions to be processed against money that actually isn't there. In some instances, even when the bank knows the account is already overdrawn, they will also allow a debit to be processed rather than declined, calling it a "courtesy," and then charge an exhorbant fee.

The second problem is an accounting method called high-low sequencing. Rather than processing transactions on a first-in-first-out basis, banks will wait for the end of the day and then process your debits from the highest to lowest amount. The effect of high-low sequencing is that multiple overdraft transactions occur, rather than only one. For example, a customer has $10 in their account, makes nine $1 purchases, and then a $9 purchase later in the day. Under FIFO, the customer overdrafted once with the $9 transaction. Under high-low sequencing, however, the customer overdrafted eight times, the $9 transaction and one $1 transaction cleared the account, and each of the eight remaining $1 transactions were overdrafts. By using this accounting method, the bank, rather than collecting one fee of, say $30, will collect eight fees, amounting to $240.

Early overdraft litigation in the US showed some promise. See Best v. United States Nat'l Bank, 303 Ore. 557, 568 (Or. 1987); Best v. United States Nat'l Bank, 78 Ore. App. 1, 13 (Or. Ct. App. 1986) (national banking act does not preempt NSF litigation; an NSF fee of $6 is not unconscionable; whether the bank acted in good faith is a question of fact); Rebney v. Wells Fargo Bank, 220 Cal. App. 3d 1117, 1128 (Cal. Ct. App. 1990)(NSF Settlement for Wells Fargo/BOA, notes 1986, NSF fees were 3% of total income for banks).

In the late 1990's, however, judicial hostility towards overdraft litigation began to mount. See Video Trax, Inc. v. NationsBank, N.A., 33 F. Supp. 2d 1041 (SDFL, 1998)(Overdraft fees are not interest and therefore not subject to usury laws); Terrell v. Hancock Bank, 7 F. Supp. 2d 812 (D. Miss. 1998)(Overdraft fees are not interest and therefore not subject to usury laws).

In 2002, the Office of the Comptroller of Currency, the regulator who sets rules for National Banks (i.e., all banks with an "N.A." after their name), formally approved the practice of high-low sequencing. OCC Interpretive Letter #997, dated April 15, 2002, released August 2004 (discussing high-low sequening under 12 USC 24(7) and 12 CFR 7.4002).

In the last five years -- although mostly unrelated to the OCC's approval of high-low sequencing, but stemming from the same general mindset -- overdraft litigation in the US has been nearly futile. See e.g. Hill v. St. Paul Fed. Bank for Sav., 329 Ill. App. 3d 705, 710 (Ill. App. Ct. 2002)(debit sequencing, while not disclosing the accounting method, was not unfair or deceptive); Tobin v. Casco N. Bank, 663 A.2d 1 (Me. 1995)(it is not illegal to allow customer to overdraft account through $10 withdrawal from atm, where the bank knows the account will overdraft but the customer doesn't, and then charge a $20 fee); Hernandez v. Wells Fargo Bank, 2006 NMCA 18, 11 (N.M. Ct. App. 2005)(approving debit transactions despite knowledge that an NSF Fee will be incurred is not unconscionable); Hill v. St. Paul Fed. Bank for Sav., 329 Ill. App. 3d 705, 710 (Ill. App. Ct. 2002)(debit sequencing, while not disclosing the accounting method, was not unfair or deceptive); Hernandez v. Wells Fargo Bank, 2006 NMCA 18, 11 (N.M. Ct. App. 2005)(approving small debit transactions despite knowledge of already existing overdraft, and thus collecting a large fee, is not unconscionable); Brooks v. Northwest Corporation, 2004-NMCA-134, Docket No. 23,423 (NM, 2004)(denying class certification for an action related to high-low sequencing and NSF fees); But see 70 CFR 29582 ("courtesy" overdraft protection, and fees, must be disclosed to consumers).

There is some hope. At least one recent decision has been receptive towards overdraft litigation, Sola v. Wash. Mut. Bank FA (In re Wash. Mut. Overdraft Prot. Litig.), 201 Fed. Appx. 409, 410 (9th Cir. 2006)(allowing excessive overdrafts on a debit card may count as “unsolicited issuance of a credit card” under 12 CFR 226.12). There have been some high-quality academic commentary. See Aruna Apte, "The Impact of Check Sequencing on NSF (Not-Sufficient Funds) Fees," 34 Interfaces 97 (March, 2004). And at least one state's banking commission has conducted an investigation and found that banks intentionally use high-low sequencing for the sole purpose of increasing their NSF fee earnings, which are directed intentionally towards the uneducated and underprivileged, and have reaped an astonishing amount of profit from the practice (I found this report once, a year or two ago, but unfortunately have lost the citation).

Eventually, people are going to get angry enough to do something. In recent months, the FTC has held hearings on several credit issues and has moved towards wholesale improvement of its various consumer protection policies. If the government becomes receptive, and quality lawyers begin taking initiative (not just for profit, but for the general good), this terrible injustice will be rectified soon. Perhaps this activity in the UK, with the renewed scrutiny of banks after the mortgage backed securities scandal, will provide an impetus for improvement.

If you would like more information, please see my other related posts:

* February 8, 2009, "Potential Tide-Turning Victory In The Battle Against Illegal Overdraft And Non-Sufficient Fund Fees: Bank Of America Settles Closson Class Action."

* June 27, 2008, "Week In Review," (the Federal Reserve is now considering a rule to curb abusive overdraft fees by banks).

* May 7, 2008, "Debit Cards and Overdraft Protection: The US Allows Banks To Steal 10 Billion Dollars Per Year From The Poor."

* August 31, 2007, "The UK Takes Steps to Curb Illegal Overdraft Fees, But US Efforts Have Not Been So Well Received."

Also, consider the following outside sources:

* The Washington Post, Bailout recipients also major lobbyistsashington Post Article, (1/23/2009)

* USA Today, FDIC: Bank overdraft fees hit young, low-income customers, (12/3/2008)(Overdraft fees are boosting banks' profits at the expense of consumers, especially young and low-income people, finds a new Federal Deposit Insurance Corp. study.")

* USA Today, Banks raise penalty fees for customers' overdrafts (6/18/08)

* USA Today, Good news in the works on overdraft charges, 6/3/08.

* USA Today, Banks' check-clearing policies could leave you with overdrafts, (11/19/2006)

* USA Today, Banks' check-clearing policies could leave you with overdrafts (11/20/06)

* Wikipedia, Overdraft

Personal Injury Attorney - "Cleaning" Injuries Under Labor Law 240(1)

In Broggy v Rockefeller Group, Inc., 2007 NYSlipOp 05775 (July 2, 2007), here, the New York Court of Appeals resolved some of the ambiguity over what type of "cleaning" is a protected activity under Labor Law 240(1), which places an affirmative duty on owners and contractors to protect workers engaged in certain high-risk occupations from gravity related hazards.
The Courts of Appeals had previously said that “the ‘cleaning’ encompassed under the statute does not include the routine, household window washing… [but does include] the cleaning of all the windows of a large, nonresidential structure such as a school,” Brown v. Christopher St. Owners Corp., 87 N.Y.2d. 938, 939 (1996), but the Departments of the Appellate Division then split over how this was to be applied: the First and Third Departments hdld that “Cleaning” refers to any commercial cleaning but not truly domestic cleaning, while the Second and Fourth Departments hold that “cleaning” refers only to professional window washing. Compare Chapman v. IBM, 253 A.D.2d. 123, 125 (3rd Dept., 1999)(cleaning interior light fixture of building a protected activity) and Fox v. Brozman-Archer Realty Servs., 266 A.D.2d. 97, 98 (1st dept., 1999) (maintenance worker protected when power-washing Plexiglas canopy at entrance of building) with Machado v. Triad III Assocs., 274 A.D.2d. 558 (2nd dept., 2000) and Noah v. IBC Acquisition Corp., 262 A.D.2d. 1037 (4th Dept 1999). See also Garcia v. Delta Air Lines, Inc., 98-CV-7259 (JG), 2001 U.S. Dist. LEXIS 621, 8-9 (E.D.N.Y, 2001) (agreeing with 1st and 3rd Departments).
In Broggy, 30 AD3d 204, 206-207 (1st Dept. 2007), the First Department attempted to narrow its previous holdings regarding "cleaning," and held that cleaning was only a protected activity if it is ancillary to construction, demolition or repair.
The Court of Appeals reversed this finding, however, and held that cleaning, as defined in Brown v. Christopher Street, is a protected activity regardless of whether it is ancillary to construction, demolition, or repair.
Although it disagreed on this point, the Court of Appeals nonetheless affirmed the decision to grant summary judgment, finding that the plaintiff in Broggy had failed to prove that his work necessarily entailed a gravity related risk. The Broggy plaintiff had been injured when he climbed on a desk to clean a window inside an office, but in opposing summary judgment the burden was on the plaintiff to prove that he had climbed on the desk due to a gravity related hazard that was necessarily incumbent upon his employment (either through the nature of the job or the direction of his employer), and the Broggy plaintiff failed to meet this burden. Had the desk not been in his way, the plaintiff could have cleaned the window while standing on the floor with his extendable squeegie, and thus the plaintiff had failed to prove that he had climbed on the desk because of the height of the window and could not rebut the defendant's argument that he had climbed on the desk merely to avoid the difficulty of either moving it or leaning over it.
You can learn more about Labor Law 240(1) here.  If you are seeking representation, feel free to contact me at

Friday, July 6, 2007

Overzealous Debt Collection Contributes to Suicide

MacDermid v. Discover Financial, (6th Cir. 2007), is an extremely unfortunate example of the need for more stringent legislation in the area of debt collection.

Intentional infliction of emotional distress is more than merely a byproduct of bad debt collection practices; it is the avowed goal of many debt collection agencies. The most frequent bar to civil prosecution is whether the conduct is "outrageous," and -- although, as discussed by the Sixth Circuit in this case, the bar is set extremely high for what constitutes outrageous conduct -- debt collection agencies routinely engage in the most contemptible tactics that easily warrant civil censure.

The problem, however, is that overly-aggressive debt collection efforts are, by definition, directed at persons with financial difficulty. These victims, in turn, either lack the acumen to pursue legal remedies, or are otherwise dissuaded from pursuing redress by the nature of their circumstances.

Another problem facing these victims is a lack of sympathy for persons who fail to pay their debts. Each year, financial institutions earn billions of dollars on fees, sub-prime interest rates, default raters, and the like. An occasionally delinquent consumer can easily pay twice-over the principal on a credit card and have the entire sum swallowed by interest and fees. Often the legal remedies that could be sought by the creditor are intentionally delayed because a judgment, which could be collectible in a variety of fashions but yields perhaps 9% interest, is less profitable than letting the debt grow exponentially and then reaching a seemingly meager settlement.

It is counter-intuitive, but it is often extremely profitable for financial institutions to lend to people who they know cannot pay their debt. Then, in the event that the venture proves unprofitable, the institution will find some mechanism to shift the risk of loss to unsuspecting consumers. The sub-prime mortgage scandal is a perfect example.

When the creditor, rather than the debtor, is viewed as the victim, the threshold for what seems "outrageous" is drastically shifted.

Hopefully, this case will spurn efforts not only by lawyers, but also by psychological researchers. The psychological effect of debt collection is an area where there has been unfortunately little study. In this case, the debt collection efforts exacerbated an already existing condition, one that seems to have been rather severe. Poor financial management, however, is a frequent symptom of psychological illness and Mrs. MacDermid's situation may not be all that rare. Furthermore, it is entirely possible that aggressive debt collection efforts may trigger depression and other psychological difficulties in persons who are otherwise mentally healthy, thus imprinting a sense of defeatism and complacency that significantly worsens the financial trouble which caused the debt collection efforts in the first place.