Friday, July 9, 2021

Former Fox News Anchor Ed Henry Files Defamation Lawsuit Against Network

 

Ed Henry

Former Fox News Anchor Ed Henry Files Defamation Lawsuit Against Network
ADWEEK, June 30, 2021

Former Fox News anchor and correspondent Ed Henry was fired by the network on July 1, 2020 for “willful sexual misconduct in the workplace.”

Nearly one year to the day later, the former TV newser, who has vehemently denied the allegations of sexual misconduct. has filed a defamation lawsuit against Fox News chief executive officer Suzanne Scott and is making a number of explosive claims in the process.

Through a statement from his attorney Ty Clevenger, Henry claims that Scott “publicly smeared” him, and that he was fired “in order to divert attention from Scott’s long history of covering up actual misconduct.”

Henry expounds on that statement, accusing Scott of “covering up other incidents involving Fox News senior executives and program hosts, including an extramarital affair between Fox News President Jay Wallace and a subordinate.”

The former Fox Newser goes on to claim that the subordinate ended up getting a “plum assignment” at the company.

Henry states in his lawsuit  that Fox Business Network president (formerly Fox News morning programming chief) Lauren Petterson told him that Scott was tired of “carrying water” for then-President Trump during the 2020 campaign. His lawsuit also alleges that Scott instructed producers at the network to rein in coverage of the national anthem controversy that Trump had been pushing about NFL players kneeling during the anthem. His lawsuit further alleges that Scott shut down the story because Fox Sports was trying to secure a multi-billion-dollar contract with the NFL.

“As we stated one year ago, Fox News Media conducted a thorough independent investigation into Ed Henry immediately after we were made aware of a serious misconduct claim against him by a former employee,” said a Fox News spokesperson via statement. “Based on the results of those findings, we promptly terminated Mr. Henry’s employment for willful sexual misconduct and stand by the decision entirely. We are fully prepared to vigorously defend against these baseless allegations as Mr. Henry further embarrasses himself in a lawsuit rife with inaccuracies after driving his personal life into the ground with countless extramarital affairs in a desperate attempt for relevance and redemption.”

The network spokesperson also addressed the claims being made about Scott: “Under the leadership of CEO Suzanne Scott, Fox News Media has worked tirelessly to transform the company culture, implementing annual, mandatory in-person harassment prevention training, creating an entirely new reporting structure, more than tripling the size of our HR footprint, conducting quarterly company meetings and mentoring events, as well as executing a zero tolerance policy regarding workplace misconduct for which we engage outside independent firms to handle investigations. No other company has enacted such a comprehensive and continuous overhaul, which notably, earned Fox News Media recognition as a ‘Great Place to Work’ for the first time in its existence, a testament to the many cultural changes that Ms. Scott has instituted during her incredibly successful tenure as CEO.”

The network put out a third statement, this one concerning the claims Henry has made about Wallace.

“Fox conducted a full and independent investigation of the claims against Jay Wallace — he was cleared of any wrongdoing and the allegations are false,” said the spokesperson.

Michael Avenatti Sentenced To 21/2 Years In Prison For Attmepting To Extort NIKE and Defrauding His Client

 

FILE - In this Dec. 12, 2018, file photo, attorney Michael Avenatti, speaks outside
court in New York. (AP Photo/Julio Cortez, File) 
The Associated Press

Department of Justice
U.S. Attorney’s Office
Southern District of New York

Michael Avenatti Sentenced To Over Two Years In Prison For Attempting To Extort Nike And For Defrauding His Client

Audrey Strauss, the United States Attorney for the Southern District of New York, announced that MICHAEL AVENATTI was sentenced today in Manhattan federal court by United States District Judge Paul G. Gardephe to 30 months in prison for attempting to extort NIKE, Inc., and for defrauding a client.  AVENATTI was previously found guilty on February 14, 2020, following a three-week jury trial.

Manhattan U.S. Attorney Audrey Strauss said:  “Michael Avenatti used illegal and extortionate threats and betrayed one of his clients for the purpose of seeking to obtain millions of dollars for himself.  Not only did Avenatti attempt to weaponize his law license and celebrity to seek to extort payments for himself, he also defrauded his own client.  Avenatti will now serve substantial time in prison for his criminal conduct.”

According to the Complaint, Superseding Indictment, court documents, and evidence presented at trial:

In a scheme that unfolded in less than a week, AVENATTI used threats of economic and reputational harm to seek to extort NIKE, Inc. (“Nike”), while defrauding his client (“Client-1”), by promising to settle potential claims by Client-1 against Nike if Nike agreed to make extortionate payments to AVENATTI.  AVENATTI threatened to hold a press conference on the eve of Nike’s quarterly earnings call and the start of the annual National Collegiate Athletic Association (“NCAA”) basketball tournament at which he would announce allegations of misconduct by employees of Nike.  However, AVENATTI stated that he would refrain from holding the press conference and harming Nike only if Nike made a payment of $1.5 million to Client-1, who was in possession of information potentially damaging to Nike, and further agreed to “retain” AVENATTI and another individual to conduct a supposed “internal investigation” – an investigation that neither Nike nor Client-1 requested – for which AVENATTI demanded to be paid, at a minimum, between $15 million and $25 million.  Alternatively, in lieu of such a retainer, AVENATTI demanded a total payment of $22.5 million from Nike to resolve any claims Client-1 might have and to buy AVENATTI’s silence. 

AVENATTI never told Client-1, among other things, that AVENATTI planned to and did threaten Nike that, unless Nike paid AVENATTI, he would hold the press conference, or that AVENATTI planned to and did seek money for himself separate from, and to the financial detriment of, Client-1.

*                *                *

In addition to the prison sentence, AVENATTI, 50, of Venice Beach, California, was sentenced to three years of supervised release. The Court deferred a determination as to restitution for a later date. 

Ms. Strauss praised the work of the FBI and the Special Agents of the United States Attorney’s Office for the Southern District of New York.

The case is being handled by the Office’s Public Corruption Unit.  Assistant United States Attorneys Matthew Podolsky, Daniel C. Richenthal, and Robert B. Sobelman are in charge of the prosecution.

Topic(s): 
Financial Fraud
Contact: 
NICHOLAS BIASE, JIM MARGOLIN (212) 637-2600
Press Release Number: 
21-167

Sunday, July 4, 2021

Thomas More Law Center Wins a Landmark First Amendment Case Against Former California Attorney General Kamala Harris

Kamala Harris

Thomas More Law Center Wins Landmark First Amendment Case for Every American in the U.S. Supreme Court

Press Release July 1, 2021

Today, the U.S. Supreme Court (SCOTUS) issued a landmark First Amendment decision holding that Americans are free to support nonprofit organizations without fear of harassment. In 2015, a federal lawsuit was filed against then-California Attorney General (AG) Kamala Harris, who had threatened severe sanctions against the Thomas More Law Center (TMLC) if names and contact information of its major donors were not disclosed to her office.

In a 6-3 decision, the U.S. Supreme Court sided with TMLC, a leading national public interest law firm based in Ann Arbor, Michigan, in its case Thomas More Law Center v. Bonta. In doing so, SCOTUS held that California’s law requiring donor disclosure was facially unconstitutional.

“When it comes to the freedom of association,” Chief Justice Roberts wrote in the Court’s opinion, “the protections of the First Amendment are triggered not only by actual restrictions on an individual’s ability to join with others to further shared goals. The risk of a chilling effect on association is enough, because First Amendment freedoms need breathing space to survive.”

Richard Thompson, TMLC’s President and Chief Counsel, hailed the Supreme Court’s ruling as a “landmark victory for the First Amendment.” He said, “Today’s victory is attributable to the superb legal work of attorney John J. Bursch and the Alliance Defending Freedom (ADF) legal team who represented TMLC in the Supreme Court, as well as San Francisco-based attorney Louis H. Castoria, who singlehandedly tried the case in the federal district court against a phalanx of California assistant district attorneys.”

Bursch, ADF senior counsel and Vice President of Appellate Advocacy, said, “The Court has confirmed that every American is free to peacefully support causes they believe in without fear of harassment or intimidation.”

On March 24, 2015, then-California AG Harris threatened in a letter to TMLC that if the Law Center did not provide her office with a list of its major donors within 30 days, the Law Center could lose its right to solicit donations in California and TMLC’s officers and tax preparers could be held personally liable for any penalties. Rather than comply under threat, TMLC filed a federal case claiming the AG was violating TMLC’s and its donors’ First Amendment rights of free speech, freedom of association, and the free exercise of religion, citing the 1958 SCOTUS ruling in NAACP v. Alabama as precedent.

A 3-day bench trial was held by Federal District Court Judge Manuel Real beginning on September 13, 2016. Auditors and investigators from the AG’s office testified that they never had a complaint against TMLC; they have never investigated TMLC; and they do not normally use major donation reports to start investigations.

On November 16, 2016, Judge Real permanently enjoined the AG from requiring TMLC to file a copy of its major donor list. The AG appealed Judge Real’s decision to the Ninth Circuit Court of Appeals, which vacated the injunction. On August 26, 2019, TMLC asked the U.S. Supreme Court (petition for certiorari) to review the Ninth Circuit’s ruling. The Supreme Court agreed, and on April 26, 2021, the Court heard oral arguments on the case.

In the Internet Age, where doxing one’s opponents has led to job loss, boycotts, ostracization, and violence, the fear of such repercussions should one’s charitable contributions become public could be enough to stymy giving, leaving the personal beliefs of many Americans to go unrepresented in the public square. While TMLC is considered by the media as a conservative Christian organization, an array of organizations across the political spectrum filed amicus briefs in support of the First Amendment arguments being made by the Thomas More Law Center.

To read the full opinion, click here.

SOURCE Thomas More Law Center

CONTACT: Tom Lynch, 734-707-5160, tlynch@thomasmore.org


            Photography via Creative Commons

Kamala Harris’ appointment is historic but don’t ignore her problematic past

The vice president-elect’s record as a prosecutor is more than troubling.
Shahed Ezaydi, 11 NOV 2020

After endless days of international anxiety, the United States finally elected a new president. Yet it’s his vice president-elect, Kamala Harris, grabbing the headlines around the world. The former prosecutor and attorney general of dual Black and South Asian heritage, has made history by becoming the first woman and person of colour to be America’s VP. And everyone is overjoyed – news outlets and social media are heralding her as the queen of feminism, the ultimate Girl Boss and an icon of representation. But beneath all the jubilation, there are people like me, wary of painting her as the epitome of progressiveness, given that Kamala Harris’ record is uncomfortable at best.

Remember all the memes about Kamala Harris being a cop? Though the sources of their dispersal were questionable at the time, it did highlight people’s legitimate concern around the senator’s tenure as San Francisco’s District Attorney and California’s Attorney General. The memes aptly summarised her problematic years of working in the criminal justice system, and told voters that she often used the law to harm people of colour, rather than helping them. Let’s not forget that she also once called herself a ‘top cop’.

“Let’s not forget that she once called herself a ‘top cop'”

During her time as District Attorney, she brought in an anti-truancy programme criminalising the parents of children who skipped school, knowing full well that communities of colour would be hit the hardest. Instead of looking at the causes of truancy, Harris decided that the children would benefit from more disruption, in the form of their parents possibly going to prison.

It gets worse. Harris also fought to keep people in prison, even after their innocence was proven. The most well known example is the case of Daniel Larsen, who was serving a life sentence under California’s Three Strikes Law. However, a court later found that Larsen was innocent and ordered his release. A “progressive prosecutor” would probably just accept this ruling and go home, but Harris chose to appeal on technical grounds that he filed his petition too late. The court denied Harris’ appeal, but this also happened in a number of other cases.

Unsurprisingly, Harris fought to release fewer prisoners in the past. California’s prisons, like most US prisons, are overcrowded, and the federal courts ordered the state to establish a new parole programme that would release some non-violent prisoners. The courts even called the overcrowding “unconstitutional cruel punishment”. But Harris wasn’t happy with this, stating that “prisons would lose an important labour pool”, as though retaining labour is a good enough reason to ignore horrendous, overcrowded conditions.

There’s more. Harris also defended California’s decision to deny a trans woman incarcerated in a men’s prison the surgery for her diagnosed gender dysphoria, arguing that the surgery wasn’t necessary.

And of course, with Black people significantly more likely to come into contact with the American criminal justice system, the positions she’s taken are in direct opposition to what racial justice and civil rights groups are fighting for. She even rejected calls from these groups to investigate deadly police shootings in Los Angeles and San Francisco, following the killing of Micheal Brown in 2014. Even though she’s been vocal about racial justice following the Black Lives Matter protests this year, she’s also been accused of frequently siding with the police unions and not pursuing aggressive enough reforms. It’s safe to say she won’t be joining in the chants to abolish the police any time soon.

“With Black people significantly more likely to come into contact with the American criminal justice system, the positions she’s taken are in direct opposition to what racial justice and civil rights groups are fighting for”

During her presidential campaign, Harris said she’d “end the wars in Afghanistan and Iraq and protracted military engagements in places like Syria, but she’ll do so responsibly”. She’s also not denounced the possibility of future US invasions, evidenced in the fact she hasn’t co-sponsored the bill which would prohibit US intervention in Venezuela. This “responsible” rhetoric echoes Barack Obama’s stance, who promised a “responsible end” to the war in Afghanistan, whilst continuing the US intervention in the region.

A Black American president didn’t stop the mass bombing of countries in the Middle East or bring an end to imperialism. Just like a partially brown Tory cabinet in the UK hasn’t suddenly reformed the immigration system or stopped the high levels of stop and search against Black communities, highlighting that representation doesn’t always equate to progress.

Another area Harris doesn’t fare particularly well in is around sex work. In 2008, she was a vocal opponent of Proposition K – a measure to decriminalise sex work – and led operations against the ‘Backpage’, a site sex workers could safely use for adverts. For someone who prides herself on fighting for marginalised groups, she made life for sex workers more difficult and risky. However, in a 2019 interview, she stated she would be open to decriminalising sex work. Harris still seems to support criminalising the act of purchasing sex, which is a position that would negatively impact sex workers, by increasing surveillance and policing around their work.

“It feels as though she’s being perceived as progressive because she’s a biracial woman, and not because of her politics”

The vice president-elect has argued that during her presidential campaign, she’s fought for racial justice reform, the reversal of incarceration and putting a stop to the death penalty. And she did manage a few policies that would be considered “progressive”, such as bringing in a scheme that would allow first time drug offenders to get an education and a job, instead of time in prison. Plus, she also refused to pursue the death penalty in a case where a police officer was shot, even when it was a widely unpopular stance.

However, we need to be careful in painting her as the beacon of progress and instead focus on her actions. It feels as though she’s being perceived as progressive because she’s a biracial woman, and not because of her politics. Yet we all know that not all Black and brown people are liberal by nature – look at Priti Patel.

Kamala Harris has made history, and that is something we should absolutely celebrate. Representation of women of colour in top positions is really great to see, and to be honest, long overdue. But representation alone doesn’t help the communities being represented if they there aren’t policies in place to support them. Black and brown faces in politics won’t solve the deep-rooted and systemic issues that people of colour face every day, especially if those faces support policies that uphold white supremacy.

As we celebrate this historic milestone, we shouldn’t lose sight of Harris’ track record. Instead, let’s hold her accountable and allow her to prove to American society that she’s fighting for progress.

Inside Kamala Harris’ polarizing record as a prosecutor

Kamala Harris’ rampant prosecutorial abuses

Saturday, July 3, 2021

Ohio Judge Strikes Down Biden's Ambiguous Tax Mandate in $1.9T Relief Package

Then-Republican candidate Dave Yost gives his victory speech after winning the Ohio Attorney General race at the Ohio Republican Party's election night party at the Sheraton Capitol Square in Columbus, Ohio, on Nov. 6, 2018. (Justin Merriman/Getty Images)

Federal Judge Strikes Down Ambiguous Tax Mandate Provision in Biden’s $1.9 Trillion Relief Package

 
July 3, 2021 Updated: July 3, 2021

A federal judge issued a permanent injunction on Thursday to block the ambiguous tax mandate in President Joe Biden’s $1.9 trillion COVID-19 relief package.

U.S. District Judge Douglas R. Cole from the District Court for the Southern District of Ohio ruled that the tax mandate in the America Rescue Plan Act (ARPA)—which seems to tie the relief fund to the states’ authority to reduce tax—exceeds the Congress’s authority under the Spending Clause due to its ambiguity.

The Interim Final Rule (IFR) issued by the Treasury Department intended to clarify the tax mandate “does not cure that constitutional violation,” the judge stated.

“Accordingly, this Court GRANTS Ohio’s Motion for a Permanent Injunction (Doc. 38), and enjoins the [Treasury] Secretary from seeking to enforce the Tax Mandate, 42 U.S.C. § 802(c)(2)(A), against Ohio,” reads the ruling (pdf).

The judge also expressed concerns that the tax mandate has breached the separation-of-powers principles laid down by the framers.

The Ohio Attorney General Dave Yost applauded the ruling and criticized the Biden administration for overreaching.

“The Biden administration reached too far, seized too much, and got its hand slapped,” Yost said. “This is a monumental win for the preservation of the U.S. Constitution—the separation of powers is real, and it exists for a reason.”

The Epoch Times reached out to the White House and the Treasury Department for comments.

A stipulation in the $1.9 trillion sweeping relief package has caused considerable disputes between red states and the Biden administration.

“A State or territory shall not use the funds provided under this section … to either directly or indirectly offset a reduction in the net tax revenue of such State or territory resulting from a change in law, regulation, or administrative interpretation during the covered period that reduces any tax (by providing for a reduction in a rate, a rebate, a deduction, a credit, or otherwise) or delays the imposition of any tax or tax increase,” the bill reads.

Several red states argued that this paragraph may deprive their authorities to reduce tax after receiving the relief.

Ohio became the first state to sue Biden’s administration over his pandemic rescue plan, arguing on March 17 that the provision holds a “gun to the head of states” by blocking them from cutting taxes, and exceeds the authority of Congress.

Thirteen states followed Ohio and launched legal action against the tax mandate provision.

The lawsuit (pdf) by the 13 states says the provision is “one of the most egregious power grabs by the federal government” in the nation’s history. It argues that the provision, by stipulating how states use federal funds with regard to tax cuts, is akin to forcing states to relinquish control of their taxing authority, which is not allowed under the Tenth Amendment.

The lawsuit also accuses the federal government of violating the conditional spending doctrine and the anti-commandeering doctrine.

The tax mandate “disables States from decreasing taxes on their citizens for a period of over three years” and in doing so, “usurps” the ability of the states to reduce their tax burdens, the states alleged in the lawsuit.

Treasury Secretary Jenet Yellon asserted back in March that the American Rescue Plan Act doesn’t prevent states from enacting a broad variety of tax cuts.

“That is, the Act does not ‘deny States the ability to cut taxes in any manner whatsoever.’ It simply provides that funding received under the Act may not be used to offset a reduction in net tax revenue resulting from certain changes in state law,” Yellen wrote in a letter responding to 21 attorneys general. “If States lower certain taxes but do not use funds under the Act to offset those cuts—for example, by replacing the lost revenue through other means—the limitation in the Act is not implicated.

The Treasury Department issued an IFR (pdf) accordingly on May 7, 2021.

Isabel Van Brugen and Mimi Nguyen Ly contributed to the report.

Follow Allen on Twitter: @AllenZM

Wednesday, June 23, 2021

Plaintiffs Lose Case Against Assisted Living Center in Schoengood v Hofgur

Plaintiffs neither sufficiently alleged they were discriminated against because of their disabilities, nor that they sought reasonable accommodations which were denied because of their disabilities. The court dismissed plaintiffs' disparate impact and reasonable accommodation claims under the ADA and RA.  Plaintiffs lost their case because, the Court ruled, "...the plaintiffs’ contention that Title III or Section 504 requires QACC to provide different and additional services than it allegedly currently provides would not appear to be an issue that Title III or Section 504 was meant to regulate."

Schoengood v. Hofgur LLC

Disabled Assisted Living Residents Do Not State ADA, RA Claims Against Facility Over Covid

Case Digest Summary

Defendants operate the Queens Adult Care Center. Plaintiffs, disabled QACC residents, alleged defendants violated the Americans with Disabilities Act and Rehabilitation Act by not complying with regulations and guidelines issued by the Centers for Disease Control and Prevention and the Department of Health and Human Services Centers for Medicare and Medicaid Services, thus leading to a rapid increase in Covid-19 cases at QACC. They claimed defendants permitted substandard conditions at QACC during the pandemic. Plaintiffs neither sufficiently alleged they were discriminated against because of their disabilities, nor that they sought reasonable accommodations which were denied because of their disabilities. The court dismissed plaintiffs' disparate impact and reasonable accommodation claims under the ADA and RA. Finding amendment futile, it ordered plaintiffs' case closed. Plaintiffs did not show that defendants' facially neutral acts or practices caused significantly adverse or disproportionate impact to either residents in defendants' assisted living programs, or psychiatric residents. 

Despite significant legal obstacles, on May 4, 2020, a group of plaintiffs filed a class action complaint alleging the Queens Adult Care Center (QACC) violated Title III of the Americans with Disabilities Act (Title III) and its precursor, Section 504 of Rehabilitation Act (Section 504), by failing to provide a level of care to safeguard their health and safety at its assisted living facility during the COVID-19 pandemic.

The plaintiffs seek to certify a class under Federal Rules of Civil Procedure Rule 23(b)(2) or (b)(3) of all current or future residents of QACC during the course of the COVID-19 pandemic who have disabilities that require assistance with activities of daily living.

The proposed class action lawsuit, Schoengood, et al. v. Hofgur LLC d/b/a Queens Adult Care Center and Gefen Senior Group, No. 1:20-cv-02022 (E.D. N.Y.), is the first of its kind seeking to hold a place of public accommodation liable under Title III or Section 504 for not taking adequate measures, in the plaintiffs’ estimation, to prevent or mitigate the spread of COVID-19.

Plaintiffs’ Claims, Relief Sought

Title III prohibits discrimination on the basis of disability “in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.” 42 U.S.C. § 12182(a). Title III applies to virtually any business that sells its goods and services directly to consumers.

Section 504 prohibits discrimination on the basis of a disability, providing that “[n]o otherwise qualified individual with a disability … shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any [federal] Executive agency ….” 29 U.S.C. § 794.

The plaintiffs base their claims on two more specific obligations under Title III and Section 504. The first requires a public accommodation to make reasonable modifications in policies, practices, or procedures when the modifications are necessary to afford goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities. The second prohibits the use of criteria or other eligibility standards that have the effect of discriminating on the basis of a disability.

The plaintiffs seek declaratory and broad injunctive relief, as well as the appointment of a Special Master at the defendants’ cost to oversee the facility and to make recommendations on preventing the spread of COVID-19 at the facility. They also seek reasonable attorneys’ fees and costs, which are generally mandated by these statutes to a prevailing plaintiff. While damages are not available under Title III, compensatory damages are available under Section 504. The plaintiffs have not expressly claimed relief in the form of awards for compensatory damages.

Potential Problems with Claims

The plaintiffs appear to face an uphill battle with their novel claims. They contend Title III requires QACC to adopt policies or have better policies during the COVID-19 pandemic to safeguard the health and safety of its disabled residents.

However, Title III has not been held to require public accommodations to adopt any policies, let alone the litany of policies the plaintiffs cite in their complaint, including testing, social distancing, isolation measures, and other policies recommended or required by the Centers for Disease Control and Prevention (CDC), the Department of Health and Human Services Centers for Medicare & Medicaid Services (CMS), and other federal and state regulations governing long-term care facilities, nursing homes, and assisted living facilities.

Section 504 regulations require covered entities and programs to have anti-discrimination policies, grievance procedures, and other procedural requirements in place. See, e.g., 45 C.F.R § 84 (HHS Section 504 regulations). However, the applicable regulations do not expressly impose the kinds of policies and procedures the plaintiffs contend Section 504 requires.

Further, to the extent that the complaint alleges QACC has policies concerning COVID-19, it does not allege a policy resulted in the denial of the services QACC offers based on an individual’s disability status.

Likewise, the plaintiffs’ contention that QACC used eligibility criteria that violates Title III and Section 504 would appear to fare no better. The complaint does not appear to allege what eligibility criteria QACC applied to the residents other than the eligibility criteria required by applicable New York law.

The complaint also does not appear to allege that any eligibility criteria screened out or tended to screen out persons with disabilities from using the services QACC offers, which is a requirement to establishing a Title III violation based on the use of unlawful eligibility criteria. The complaint appears to allege precisely the opposite. QACC provides its services mainly to disabled residents and, therefore, the plaintiffs contend that Title III and Section 504 require the facility to provide certain services the plaintiffs allege QACC does not currently provide.

However, by its plain terms, Title III’s prohibition against discrimination on account of disability “in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation” regulates access to the goods and services of a public accommodation, but not the type of goods or services offered by the public accommodation. See McNeil v. Time Ins. Co., 205 F.3d 179, 188 (5th Cir. 2000); Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1115-16 (9th Cir. 1999); Doe v. Mut. of Omaha Ins. Co., 179 F.3d 557, 560 (7th Cir. 1999); Lenox v. Healthwise of Kentucky, Ltd., 149 F.3d 453, 457 (6th Cir. 1998); Ford v. Schering-Plough Corp., 145 F.3d 601, 613 (3d Cir. 1998); Funches v. Barra, No. 14-cv-7382, 2016 WL 2939165, at *4 (S.D.N.Y. May 17, 2016). An owner denies the full and equal enjoyment of offered goods or services if they deny or inhibit access to those goods and services. However, “[t]he goods and services that the business offers exist a priori and independently from any discrimination. Stated differently, the goods and services referred to in the statute are simply those that the business normally offers.” Thus, the plaintiffs’ contention that Title III or Section 504 requires QACC to provide different and additional services than it allegedly currently provides would not appear to be an issue that Title III or Section 504 was meant to regulate.

Potential Problems with Class Certification

Regarding the plaintiffs proceeding as a putative class, Rule 23(b)(2) classes are well-known to civil rights lawyers and apply where the party opposing the class certification has acted or refused to act on grounds generally applicable to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.

Certification under Rule 23(b)(2) is unique in its requirements, as compared to other bases for class certification under Rule 23. A plaintiff seeking to certify a 23(b)(2) class must establish, in addition to the Rule 23(a) prerequisites (numerosity, commonality, typicality, and adequacy), that a single injunction can be issued that applies to the whole class and complies with Rule 65(d) — namely, the injunction “state its terms specifically; and describe in reasonable detail … the act or acts restrained or required.” See Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 360 (2011) (“Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class. It does not authorize class certification when each individual class member would be entitled to a different injunction or declaratory judgment against the defendant.”).

The wide-ranging and evolving recommendations and guidance offered by the CDC and other state and local governmental agencies, makes crafting a single injunction applicable to hundreds of residents with varying medical impairments and care needs problematic.

Given the individual nature of care residents typically need and their varying disabilities the complaint alleges they have, individual questions also appear more likely to predominate over common questions. This makes the plaintiffs’ claims unsuitable for class certification under Rule 23(b)(3) and failing to provide a superior method over proceeding and adjudicating on their individual claims.

Moreover, under the Rules Enabling Act, the plaintiffs’ decision to proceed as a class action cannot diminish the defendants’ substantive right to prove their defenses under Title III and Section 504 with respect to any member of the class. See 28 U.S.C. § 2072(b). Certain defenses, such as undue burden or fundamental alteration of the nature of services offered, tend to be fact-specific and may raise individual issues sufficient for a court to deny class certification.

This is not to suggest that the plaintiffs can establish all Rule 23(a) prerequisites. Numerosity would appear problematic for the plaintiffs because joinder of absent putative class members would not be impracticable. They are all residents at the facility, readily identifiable, and the court likely has personal jurisdiction over each of them. Aggrieved residents presumably have incentives to bring an individual action like the one filed by the plaintiffs given the potential individual stakes and the availability of an award of attorneys’ fees and costs if they prevail.

Merely identifying a common contention is insufficient for a plaintiff to establish commonality under Rule 23(a)(2) after Dukes. The U.S. Supreme Court explained in Dukes:

[The] common contention … must be of such a nature that it is capable of class-wide resolution — which means that the determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke. “What matters to class certification … is not the raising of common questions — even in droves — but rather the capacity of the classwide proceeding to generate common answers apt to drive the resolution of the litigation.”

In order for a “contention” to constitute a “common question,” it must yield the same answer with respect to each member of the proposed class. Even if the plaintiffs pled valid claims under Title III or Section 504, the answer to the common question of whether QACC committed discrimination under these statutes may be that it depends on the resident, given a host of individual factors, including the resident’s care needs, disability, and level of assistance with daily activities. The resolution of such individual issues has a higher probability of yielding different answers for each of the putative class members, thereby defeating commonality.

***

This case has potentially far-reaching implications for all places of public accommodation and we will continue to monitor it.

Tuesday, June 1, 2021

The Impeachment Of Governor Andrew Cuomo Goes Nowhere - No Surprises Here

 

Speaker Carl Heastie and Gov. Andrew Cuomo

In New York State, did anyone really believe that Governor Andrew Cuomo, son of former Gov. Mario Cuomo, would be held accountable for any of his actions, including sexual harassment of women who worked for him?

Reporter who covered Cuomo for years recounts governor's 'checkered, bullying, spiteful' past

Nope.

 Betsy Combier

Editor, ADVOCATZ.com
Editor, ADVOCATZ blog
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, NYC Rubber Room Reporter
Editor, NYC Public Voice
Editor, National Public Voice
Editor, Inside 3020-a Teacher Trials

Even the impeachment of Gov. Cuomo is just grist for corruption

NY POST Editorial Board, May 31, 2021

The charges against Gov. Andrew Cuomo won’t be real until Speaker Carl Heastie says they are.

Assemblyman Charles Lavine, who’s nominally in charge of the supposed Cuomo impeachment inquiry, admitted last week that there’s no end anywhere in sight. Nor will there be, until Speaker Carl Heastie decides he wants it.

At just the third Judiciary Committee meeting to even pretend to address the issue since the ball supposedly started rolling in March, Lavine merely announced that the $250,000 for outside lawyers at Davis Polk & Wardwell is just the start; the Assembly will spend as much “as needed” on its investigation.

Meanwhile, The Post’s Bernadette Hogan reported that Heastie dutifully played middleman when Gov. Andrew Cuomo wanted Assemblyman Ron Kim to walk back his truth-telling about the admission by top Cuomo aide Melissa DeRosa that Team Cuomo had intentionally kept legislators in the dark about the true COVID death toll in state nursing homes.

At the gov’s behest, Heastie had an aide “relay” Cuomo’s request that Kim deny what he’d already told the press. “I came to the conclusion that if I put out this statement, that I would be complicit in the coverup,” Kim told The Post.

And Heastie had his staff convey that invitation to help deceive the public, not the first time he’s had staff relay the gov’s threats.

So it stands to reason the Assembly’s impeachment probe won’t get very far until Cuomo tells Heastie it’s time to wrap it up. And, sadly, all Cuomo has to do in return is let the speaker have his way with public policy — the public interest be damned.

Pretty sordid, isn’t it, that even the effort to hold a governor to account for horrific abuse of his office is just grist for another corrupt bargain?

Tuesday, May 18, 2021

Report of The Special Advisor on Equal Justice in the Courts



Recommendations from the  Special Adviser on Equal Justice in the Courts 

From: National Public Voice

New York’s courts continue efforts to combat racism

By Rachel Vick, Queenseagle.com, May 17, 2021

Just six months after the release of a report outlining racism in the state’s court system, leaders shared an update on the steps they are taking to eliminate system-wide bias.

The dozen recommendations made by the Special Adviser on Equal Justice in the Courts, former U.S. Secretary of Homeland Security Jeh Johnson, were issued in October 2020 to mitigate pervasive racism within the courts by declaring a zero-tolerance policy and implementing bias training. 

“There is no greater priority for the court system than the implementation of the Special Adviser's recommendations,” Chief Administrative Judge Marks said on Monday. “I am gratified by the significant progress made these past few months and look forward to further developments in our pursuit to combat racial and other bias systemwide.” 

Marks described the task force’s ongoing efforts as a “critically-important undertaking” and “a wide-ranging endeavor that relies on the collaboration and support” from all parties involved. 

To date, the courts have taken steps including improving high ranking court official’s outreach, mandatory training for all judges and nonjudicial staff on racial bias and implicit bias, mandatory name tags for court personnel, updating the court system’s juror orientation video to address juror bias, increasing visibility of the Franklin H. Williams Judicial Commission and Office of Diversity and Inclusion, increasing language access and the inclusion of diversity in a new Unified Court System mission statement.

“In the service of our mission, the UCS is committed to operating with integrity and transparency, and to ensuring that all who enter or serve in our courts are treated with respect, dignity, and professionalism,” the new statement reads.  “We affirm our responsibility to promote a court system free from any and all forms of bias and discrimination, and to promote a judiciary and workforce that reflect the rich diversity of New York State.” 

They are also working to increase awareness of the Inspector General’s office, including its Bias Matters Unit, where court system employees and court users can file complaints, and increase access through an intermediary. 

Judge Edwina Mendelson, who is overseeing the overhaul, is launching a website to highlight the vision and ongoing work of the Equal Justice in the Court's Initiative in the coming weeks. She is also in the process of organizing court officer community outreach programs and a community affairs appointee in each courthouse to improve public trust.

“It is a professional and personal privilege for me to oversee implementation of the Special Adviser’s recommendations for eliminating racial bias in the courts and promoting meaningful diversity, equity, and inclusion at all levels,” Mendelssohn said. “I have deep faith in the strength of our commitment and a strong belief in our collective will to meet this moment – and to fulfill our obligation to provide equal justice in all our courts.”

Saturday, May 15, 2021

Cornell Law Student Defends Blogger's First Amendment Rights in Anti-SLAPP Case

 


Law student plays key role in blogger’s defamation defense

A decision in a defamation case argued primarily by a Cornell Law School student is one of the first in New York state court to address a legal question spurred by recent legislative changes strengthening free speech protections.

On May 10, a New York Supreme Court judge in Ontario County dismissed a construction company’s lawsuit against James Meaney of Geneva, New York, publisher of the Geneva Believer watchdog blog, who was defended by the Law School’s First Amendment Clinic and co-counsel Michael Grygiel of Greenberg Traurig LLP.

Judge Brian Dennis


During a virtual hearing on Dec. 9, 2020, third-year law student Rob Ward led the defense team’s argument for why the amended anti-SLAPP laws – short for Strategic Lawsuits Against Public Participation – should apply retroactively. Judge Brian Dennis agreed that amendments approved in November to New York’s so-called “anti-SLAPP” statutes, which seek to deter use of the courts to silence criticism in public matters, should apply to the case retroactively. But he also found that the previous version of the statute would have applied as well and that Massa Construction Inc. could not meet its statutory burden to show that its claims had a substantial basis in law and fact. Dennis ruled that Meaney’s challenged articles were comprised of true facts and constitutionally protected opinions, rejecting Massa’s theory of defamation by implication and holding that satirical images in the articles were non-actionable.

State and federal judges have recently reached that conclusion in unrelated cases, but at the time of the hearing no courts had weighed in on the matter.

Ward pointed to legislative history revealing state lawmakers’ intent to clarify the original purpose of statutes enacted in 1992, which was for the statute to apply more broadly than courts have previously interpreted it, and for the amendments to take effect immediately.

“New York has a long history of being at the forefront of expansive definitions of free expression,” Ward said. “This decision helps build on that tradition and will help protect journalists and other citizens trying to make their voices heard in their communities.”

The victory was the First Amendment Clinic’s second on Meaney’s behalf since Massa filed its defamation claim in January 2020. Last June, the same court on First Amendment grounds denied Massa’s request for a temporary restraining order demanding Meaney take down articles reporting on the company’s ties to the Geneva city council, which according to Meaney’s reporting has awarded Massa more than $4 million in contracts since 2010.

Meaney’s articles highlighted potential conflicts of interest involving a city council member who was also a Massa employee, and a former council member whose son worked part-time for both the company and the city. He reported on missing bid records – revealed by his Freedom of Information Law requests – and questioned the rationale for certain projects.

The First Amendment Clinic said the defamation case lacked merit broadly, including the fact that Meaney’s reporting – based on public meetings and public records – was accurate. The company claimed the allegedly defamatory statements implied wrongdoing and corruption – a disfavored legal theory, according to First Amendment Fellow Tyler Valeska.

Meaney’s reporting on and criticism of the city’s spending “is protected at the core of the First Amendment and the New York Constitution as speech on a matter of public concern,” the defense team argued in requesting the case be dismissed.

Valeska was thrilled with the comprehensive victory. He emphasized the court’s conclusion that Meaney would have been protected even under the narrower prior version of New York’s anti-SLAPP law. And he noted that the amended laws, applied retroactively, made the case a slam dunk. Application of the anti-SLAPP law increased Massa’s burden of proof, facilitated the case’s early dismissal and entitled Meaney to collect attorney’s fees.

The case was part of the First Amendment Clinic’s Local Journalism Project, which supports newsgatherers and media outlets lacking the resources to defend themselves against expensive, potentially frivolous litigation. Associate Director Cortelyou Kenney and a group of students including Michael Mapp were also part of the clinic team handling the case.

“The clinic believes that such threats have a dangerous chilling effect on local journalism and must be fought to ensure that the public receives newsworthy information,” said Mark Jackson, the clinic’s director and adjunct professor of law.

For Ward, helping to shape a novel aspect of state law was a rewarding opportunity, one that is relatively rare for a law student.

“I was grateful to play a role in defending this journalist who, if the clinic weren’t here, might have had to stop publishing,” Ward said. “Getting to not only write on his behalf but to argue before a judge on his behalf was an amazing experience.”

Ward said the skills and courtroom experience gained during his three semesters in the clinic will serve him well in a career that will start in tax law, and that First Amendment issues will remain a passion. Meaney’s challenges in Geneva, a city of 13,000, resonated personally with the native of Broadalbin, New York, a town of 5,000 about an hour northwest of Albany in Fulton County.

“This case hit close to home,” he said. “It was really appealing to me to work with someone who cares about his upstate New York community and is trying to report on it and make it a better place.”