RJ Gaudet & Associates LLC provides U.S. legal advice and representation to clients in Europe and the United States.
RJ Gaudet & Associates LLC is a law firm registered in Seattle, Washington with a branch in The Hague, the Netherlands. The firm was established by American lawyer Robert J. Gaudet, Jr. while he was studying complex litigation in Europe under a Fulbright grant.
On September 25, 2015, Stockholm University in Sweden conferred the honor of “Doctor Jubilaris” upon Prof. Dr. Ingrid Detter who graduated from the faculty of law and went on to a D.Phil. at Oxford University and a second doctorate from Stockholm University; became the first female Fellow of St. Antony’s College at Oxford University; was elected to the Chair of International Law at Stockholm University; and served as Legal Advisor on International Affairs to the Pope, Saint John Paul II, for 25 years.
Prof. Dr. Detter attended the ceremony in Stockholm at the Blue Hall in the Stockholm City Hall, followed by a gala supper at the Golden Hall which is often called the “Little Noble Feast” since it occurs on the same premises as the annual Nobel Prize ceremony.
The ceremony was conducted in Latin. Prof. Engelbrekt of Stockholm said, in Latin, that she had consulted with her colleagues in the law faculty and that they had selected Prof. Dr. Detter for this honor. In Latin, Prof. Engelbrekt said at the ceremony, “I order you to step forward to receive the sign of your honor.” And, then, she said, “I greet you, Jubilee Doctor” (again, in Latin) and “Good bye, distinguished Doctor” (in Latin as “Vale, clarissima, Doctor”). The program was performed in Latin to maintain the historical roots of this medieval tradition. Participants wore white tie and long evening dresses.
Prof. Dr. Detter de Lupis Frankopan was delighted to receive this honor bestowed by her colleagues on the law faculty. The Doctor Jubilaris is conferred under the auspices of King Carl XVI Gustaf of Sweden who officially serves as the head of the University. The firm of RJ Gaudet & Associates LLC congratulates Prof. Dr. Detter for this recognition.
After receiving this award, Prof. Dr. Detter has embarked to Rome for a meeting with HH Pope Francis. She advised his predecessors on matters of international law. It was, perhaps, due to her impressive scholarship and work that Prof. Dr. Detter was recognized on September 25 by her peers. Her academic career started at Oxford University where she attained a D.Phil. under the supervision of Sir Humphrey Waldock who later served as President of the International Court of Justice.
By Arthur H. Bryant*
Two years ago, dissenting in American Express v. Italian Colors Restaurant, Justice Elena Kagan, referring to the civil procedure rule on class actions, wrote, “To a hammer, everything looks like a nail. And to a court bent on diminishing the usefulness of Rule 23, everything looks like a class action, ready to be dismantled.” The message to people and companies involved in class actions was clear: “Be afraid. Be very afraid.”
Last term, the U.S. Supreme Court basically left class actions alone. This upcoming term, however, the court has already agreed to hear four cases that could dramatically restrict or terminate class action litigation in numerous ways. The concern is real. Will the court keep hammering class actions or let them be?
To understand why so many are worried, just look at the decisions that prompted Kagan’s remarks. In 2011, AT&T Mobility v. Concepcion effectively held that the Federal Arbitration Act gave corporations the power to violate state laws and use mandatory arbitration clauses in their form contracts to bar customers and workers from bringing class actions against them.
Wal-Mart Stores v. Dukes announced several new rules making it harder to prosecute cases as class actions and precluded the courts from determining whether the country’s largest private employer was discriminating against its female workers nationwide.
In 2013, neither Comcast v. Behrend, an antitrust case, nor Genesis Healthcare v. Symczyk, a Fair Labor Standards Act case, presented the questions the court heard them to address. But, instead of dismissing them, the court stopped both from proceeding as class actions on grounds not addressed by the parties.
Finally, in American Express, the court held corporations could use mandatory arbitration clauses to ban class actions when, as a practical matter, that prevented their customers from vindicating their substantive rights and let the companies illegally obtain billions.
FOUR NEW CHALLENGES
Against this background, the court’s decision to hear four new challenges to class actions has understandably raised grave concerns. Tyson Foods v. Bouaphakeo, attacking a $5.8 million jury verdict against the company for underpaying its workers, raises two questions: first, whether the trial judge should have permitted Tyson’s workers to rely on statistical sampling to establish liability and damages; and second, whether a class can be certified that contains some members who have not been injured and have no legal right to damages.
But statistical sampling has been used to establish liability and damages in cases for years. And classes have always been certified even though they contain some members who have not been injured and are not entitled to damages. For example, even if an employer is discriminating against women in hiring, unqualified female job applicants would not have been injured or be entitled to damages. That fact has never stopped class actions charging gender discrimination in hiring from proceeding.
In Spokeo v. Robins, a Fair Credit Reporting Act case, the company, charged with publishing inaccurate information and failing to provide legally required notices, contends that Congress cannot constitutionally give people the right to seek statutory damages, individually or collectively, when corporations violate the law.
Based on this rationale, it urges the court to bar class actions for statutory damages authorized by Congress to enforce the Truth in Lending Act, Fair Debt Collection Practices Act, Telephone Consumer Protection Act, Employee Retirement Income Security Act, Real Estate Settlement Procedures Act, Lanham Act, Fair Housing Act, Americans With Disabilities Act, Video Privacy Protection Act, Electronic Communications Privacy Act, Stored Communications Act, Cable Communications Privacy Act, Migrant and Seasonal Agricultural Worker Protection Act, Expedited Funds Availability Act, Homeowners Protection Act, Equal Credit Opportunity Act and the Driver’s Privacy Protection Act.
Campbell-Ewald v. Gomez presents the question the court granted review of Genesis Healthcare to decide: whether defendants can stop class actions and render them moot by offering the individual class representatives their full damages and the class members nothing. Since Genesis Healthcare, the lower courts have unanimously agreed that Kagan’s dissent in that case was right: the answer is no. But the court took the case anyway.
And, in DirecTV v. Imburgia, which charges early-cancellation penalties imposed on consumers were illegal, the company’s 2007 customer agreement said its mandatory arbitration clause was invalid if the clause’s class action ban violated “the law of your state.” It did. AT&T Mobility later held federal law pre-empted that state law, but the lower court found that didn’t matter — because the parties’ agreement was to follow state law. Contract interpretation is supposed to be governed by state law, which the Supreme Court does not create. The court could, however, still find a way to enforce the class action ban.
These cases are important to everyone in America. While they involve class actions — a procedural device — what’s at stake are the substantive and constitutional rights class actions are designed to preserve and enforce. When corporations or the government harm many people or businesses, class actions are often the only way that justice can be done.
The court will be deciding whether class actions can continue to be used, as they have been, to enforce state and federal consumer protection, employment, civil rights, civil liberties, environmental and other laws — and the state and U.S. constitutions. If it keeps hammering nails in class actions’ coffin, it could be burying significant portions of these laws as well. We will see.
*Arthur H. Bryant is the chairman of Public Justice, a national public interest law firm dedicated to advancing and preserving access to justice for all. His practice focuses on consumers’ rights, workers’ rights, civil rights, environmental protection, and corporate and government accountability.
[Reprinted from the National Law Journal (Sept. 7, 2015) with permission of Arthur Bryant, chairman of Public Justice. Mr. Gaudet is a member of Public Justice.]
By Arthur Bryant
Chairman, Public Justice
The U.S. Chamber of Commerce’s Institute for Legal Reform just released the latest version of the propaganda piece it started publishing in 2002. Entitled “2015 Lawsuit Climate Survey: Ranking the States,” the report summarizes the answers of a “nationally representative sample of 1,203 in-house general counsel, senior litigators or attorneys, and other senior executives who are knowledgeable about litigation matters at companies with annual revenues over $100 million” who responded to what it calls a “survey.” The so-called “survey” does not, however, show what these people really think. Everyone taking it knows that its purpose is – as it has been for the past 13 years – to give big business a basis to smear state court systems that aren’t pro-business enough as “judicial hellholes” and push all state courts to limit corporate liability for wrongdoing.
Even so, the answers provide some extraordinary information.
First, Corporate America’s representatives say that state courts are increasingly better for them. Consumer, worker, environmental, and civil rights advocates would agree. As the report says, in the 13 years since the so-called survey began, “there has been a general increase in the overall average score” given to state court systems by lawyers for big business – “and this trend continues with the 2015 survey.”
“From 2002-2006,” the report finds, “the overall score averaged approximately 52.9, whereas from 2007-2015, the score averaged approximately 59.6.” Chart 2 of the report gives the details and shows that the score given by big businesses’ lawyers to state court systems has gone up almost every year. In 2003, Corporate America’s lawyers gave the state courts a score of 50.7; in 2015, they gave them a score of 61.7.
Since this is supposed to be the views of one side in an adversarial system, wouldn’t a score close to 50 be ideal? The Chamber’s propaganda campaign (backed by corporate lobbying, campaign donations, and decisions like Citizens United) is plainly working. I understand that, in theory, a system perceived to be fair by all parties should get a score of 100 from everyone but, remember, this was a “survey” taken by specific people of specific people for a specific purpose: to push the state courts in the corporations’ favor. You could reasonably expect a court system that got a score of 100 from these participants to get a score of zero from lawyers trying to hold big businesses accountable for breaking the law.
Second, even in a “survey” designed and taken to show that the state courts are biased against big business, half of Corporate America’s lawyers say the state court liability systems overall are “excellent or pretty good.” Another 41% say the systems overall are “only fair.” I thought the goal was for them to all be “fair.” But perhaps that’s why I’m a public interest lawyer, not a lawyer for big business. Despite the reason for the “survey,” only 8% said the systems overall were “poor” (the last 1% was not sure or declined to answer).
In other words, despite what the “survey” is intended to show, it actually shows that the state court systems overall are viewed by Corporate America’s lawyers as significantly better for big businesses than they are for the people and companies suing them. Can you imagine the cries of bias we would hear if a survey showed legal services, consumer, and workers’ lawyers saying the courts were “excellent or pretty good” for them (much less “only fair”) in lawsuits against big business?
Third, Corporate America’s lawyers give grades between A and F to each of the state court systems and say where they do and don’t like to be sued. In a stunning and continuing display of arrogance, they actually include a map of the “Best to Worst Legal systems in America.” The map was apparently created in Bizarro World. They give As to 14% of the state courts, Bs to 38%, Cs to 27%, and Ds to 11%. In other words, even according to these “survey” respondents, 90% of the state court systems are passing. They give failing grades, Fs, to 5%. The other 5% were not sure or declined to answer. These answers, too, put the lie to Corporate America’s claims that state courts need to be more favorable to them. If anything, they show that many state courts are already far more favorable to big businesses than they are to those trying to hold big businesses accountable.
The “survey” respondents also took the time to tell us which states’ courts are the most, and least, favorable to Corporate America. The top five states, according to them, are Delaware (often called a subsidiary of DuPont), Vermont, Nebraska, Iowa, and New Hampshire. See any states in there with a lot of minorities and poor people who might not look kindly on big corporations abusing their power? The bottom five states, they say, are West Virginia, Louisiana, Illinois, California, and New Mexico. Ask yourself the same question. I question some of these rankings. Most plaintiffs’ lawyers would list the Texas state courts as one of the most pro-business in the nation. But maybe the state’s so big that they don’t want to admit that. The states they rank highest are all fairly small.
If you want to figure out which states have juries most likely to hold big corporations accountable, try reversing the order. These are the states the Chamber of Commerce regularly uses this “survey” to label “judicial hellholes.” In reality, however, a “hellhole” for corporations violating the law may be “heaven” for those seeking justice against businesses that cheat or injure consumers (for more on this, click here).
What we need in America are state and federal court systems that are fair – and biased in no one’s favor. Unfortunately, the Chamber of Commerce’s latest propaganda piece shows we are far from that goal and, for some time, things have been getting worse. Big businesses’ own lawyers say that state court systems have turned increasingly in Corporate America’s favor since the “survey” began.
This needs to stop. Our courts systems need to turn back to being even-handed. That’s the only way justice can be done.
[Reprinted with permission of Mr. Bryant. Mr. Gaudet is a member of Public Justice, the organized chaired by Mr. Bryant.]
By Robert J. Gaudet, Jr.
Today, in a decision that is sure to delight the Argentine critics of Judge Griesa (and Argentina’s lawyers, one of whom has already said he is “very pleased”), a panel of three judges of the U.S. Court of Appeals for the Second Circuit reversed an August 29, 2014 order by Judge Griesa to expand the class definition of bondholders in Brecher v. Argentina, one of numerous class actions against Argentina.
On August 29, 2014, Judge Griesa had expanded the class, at the plaintiffs’ request, to include “all holders of Republic of Argentina European Medium Term Note Bond, with a coupon rate of 9.25% and a maturity date of July 20, 2004 (ISIN XS011 3833510)” without limitation as to time held. The Second Circuit held that this definition was too broad and violated the requirement that the class be “ascertainable.”
Today, the Second Circuit gave a puzzling hypothetical that, in its opinion, demonstrated that the new class definition was not ascertainable:
A hypothetical illustrates this problem. Two bondholders—A and B—each
hold beneficial interests in $50,000 of bonds. A opts out of the class, while B opts
in. Both A and B then sell their interests on the secondary market to a third
party, C. C now holds a beneficial interest in $100,000 of bonds, half inside the
class and half outside the class. If C then sells a beneficial interest in $25,000 of
bonds to a fourth party, D, neither the purchaser nor the court can ascertain
whether D’s beneficial interest falls inside or outside of the class.3 Even if there
were a method by which the beneficial interests could be traced, determining
class membership would require the kind of individualized mini‐hearings that
run contrary to the principle of ascertainability. See Charron, 269 F.R.D. at 229;
Bakalar, 237 F.R.D. at 64–66. The features of the bonds in this case thus make the
modified class insufficiently definite as a matter of law. Although the class as
originally defined by the District Court may have presented difficult questions of
calculating damages, it did not suffer from a lack of ascertainability. The District
Court erred in attempting to address those questions by introducing an
ascertainability defect into the class definition.
This hypothetical makes little sense. For instance, it assumes that it is possible that “A opts out of the class, while B opts in.” However, this is not even possible in a Rule 23(b)(3) class action, as Brecher v. Argentina was certified under Rule 23(b)(3). In such a case, bondholders are automatically members of an opt-out class unless they exclude themselves by opting out. There is no requirement or procedure by which any party “opts in.” The opt in procedure is a part of opt-in class actions brought under the Fair Labor Standards Act (and it is also a primary feature of class actions in many European countries, like Sweden and Italy, where the mechanism is rarely used) but it is not a part of a Rule 23(b)(3) class action. The Court’s hypothetical suggests a fundamental misunderstanding of the way a Rule 23(b)(3) class action functions even though the panel’s opinion may be correct in other respects.
The problem identified by the Second Circuit could be cured. For instance, the class definition could be adjusted to include owners of beneficial interests at a certain point in time, e.g., at the time of final judgment or settlement. Even this would be an improvement over the initial class definition that required bondholders to continuously hold their bonds from the date of class certification until the date of final judgment in order to be a part of the class. It appears the Second Circuit may wish for the parties to return to this original class definition although it is not entirely clear.
The Second Circuit’s decision is further puzzling because it seems to add a new requirement, on remand, that does not seem to have any direct relationship to the class definition, the issue that was on appeal. Specifically, the Second Circuit seems to say in today’s opinion that the parties must know make a reasonable estimate of class damages and, if they are unable to do so, then they must estimate damages for individual members of the class:
There remains the question of determining damages on remand. Given
that Appellee here is identically situated to the Seijas plaintiffs and this Court has
already addressed the requirements for determining damages in those cases, we
conclude that the District Court should apply the same process dictated by Seijas
II for calculating the appropriate damages:
Specifically, it shall: (1) consider evidence with respect
to the volume of bonds purchased in the secondary
market after the start of the class periods that were not
tendered in the debt exchange offers or are currently
held by opt‐out parties or litigants in other proceedings;
(2) make findings as to a reasonably accurate, nonspeculative
estimate of that volume based on the
evidence provided by the parties; (3) account for such
volume in any subsequent damage calculation such that
an aggregate damage award would “roughly reflect”
the loss to each class, see Seijas I, 606 F.3d at 58–59; and
(4) if no reasonably accurate, non‐speculative estimate
can be made, then determine how to proceed with
awarding damages on an individual basis. Ultimately,
if an aggregate approach cannot produce a reasonable
approximation of the actual loss, the district court must
adopt an individualized approach.
493 F. App’x at 160; see also Seijas III, 2015 WL 4716474, at *4 (repeating
instructions). The hearing will ensure that damages do not “enlarge plaintiffs’
rights by allowing them to encumber property to which they have no colorable
claim.” Seijas I, 606 F.3d at 59.
This latter part of the 10-page opinion is also puzzling because there is no apparent reason why an estimate of damages would be necessary at this stage of the proceedings. There is no settlement to discuss. There is no motion for judgment or any order of judgment on the docket. Hence, it is not necessary to estimate damages in Brecher at this moment, so it appears the Second Circuit panel decided issues that were not before it and that it may not be necessary for Judge Griesa to hold a hearing over at this stage.
The Second Circuit’s panel decision is available at this link: 2d Circuit – Sept 16 2015. It is unclear whether the plaintiffs will file a petition for rehearing by a full panel of the Second Circuit but that may be advisable since the panel opinion seems to misunderstand the functioning, e.g., of a Rule 23 opt-out class action.
Mr. Gaudet of RJ Gaudet & Associates LLC drafted the original complaint in Brecher v. Argentina when he was a lawyer at a previous law firm. He has not worked on the case since he resigned from that firm in 2007 and the expanded class definition that was reversed by the Second Circuit was not related to his work.
Lawyers Mr. Gaudet, Jenik Radon, and Tim Ashby currently serve as class counsel in a separate class action against Argentina, Barboni v. Argentina, in which they are assisted by English barrister, Dr. Ingrid Detter de Frankopan, of the United Kingdom, who is an expert in the field of international law.
This week, Robert Gaudet was re-appointed for 2015-2016 to the Case Development/Special Projects Committee of Public Justice.
Public Justice “pursues high impact lawsuits to combat social and economic injustice, protect the Earth’s sustainability, and challenge predatory corporate conduct and government abuses” according to its mission statement. The appointment was made by the new president of Public Justice, Brad Moore. Mr. Gaudet was previously appointed to this same committee for 2014-2015.
The national headquarters of Public Justice are in Washington, D.C. with a West Coast Office in Oakland, California. Read more at http://www.publicjustice.net/.
The U.S. Court of Federal Claims today issued a new set of local rules governing cases before the Court. The new rules are available at this link. Every practitioner before this Court should have a copy of the new rules. RJ Gaudet & Associates LLC represents Customs and Border Protection canine student instructors with wage and hour claims under the Fair Labor Standards Act in a case that is pending before this Court. Mr. Gaudet has defended depositions in San Diego and Washington D.C., drafted a brief, and conducted legal research on behalf of the Plaintiffs in this case against the U.S. Government.
On August 6 and 7, 2015, El Paso and Juarez will host a bi-national conference called “A View From the Border” that is free to attend with presentations mostly in El Paso as UTEP (University of Texas El Paso) with one presentation in Juarez at the Cultural Center of the North. The agenda is available at this link.
Speakers will include the Commissioner of the U.S. Customs and Border Protection, Gil Kerlikowske; the Mexico Secretary of Energy, Pedro Joaquin Coldwell; the U.S. Secretary of the US Department of Commerce, Penny Pritzer; the Mexico Secretary of Economy, Ildefonso Guajardo Villarreal; Congressman Beto O’Rourke; and many others.
The topics that will be discussed include: “What’s Next For North America?”; “Moving People and Trade: What Does the Ideal U.S. – Mexico Border Look Like?”; “People Solving Problems: Where Civil Society Leads the Way”; “The Economic Future of North America: US – Mexico High Level Economic Dialogue”; and “Mexican Energy Reform and the Implications for the North American Economy.” This exciting conference will present the views of the most informed leaders in both countries and allow us to envision the future prospects for international trade, movement, and education across the border.
Mr. Gaudet and Mrs. Gaudet-Asmus of RJ Gaudet & Associates LLC plan to attend and are grateful to the staff members of Congressman O’Rourke, including but not limited to Mario Porras, for their hard work in organizing this conference. More information about the conference is available at this link and registration is open at this link.
By Robert J. Gaudet, Jr.
After reviewing a provocative article posted in the “Stanford Lawyer” by Stanford professor Nora Freeman Engstrom (a former classmate of mine) about the infirmities of the $3.4 billion no-fault Vaccine Injury Compensation Fund that was set up to compensate victims so they don’t have to go to court with a lawsuit, I shared the article with a Seattle plaintiff’s lawyer, Lee Burdette, who has filed numerous cases with the Vaccine compensation fund. His experience is “quite different than the picture she paints,” he wrote.
Nora’s article concludes the Vaccine compensation fund takes too long (up to 5 years) to resolve cases instead of resolving them within the 240-day deadline and that it does not provide the guaranteed equal treatment to each claimant. Therefore, generalizing from this basis, she suggests that alternative compensation mechanisms might be less useful than traditional litigation in compensating victims in other fields, e.g., medical malpractice.
In Lee’s experience, however, the Vaccine compensation fund provides adequate compensation for victims who otherwise would not find lawyers to represent them in lawsuits in court. In addition, many claims are processed quickly, Lee says, and it is only a subset of contested off-the-Table claims and fee disputes that take longer. Lee responded to my email as follows: “if someone did a case by case analysis I think they would find” the following, as written in his own words (with very minimal editing by me):
“1. Many petitions are filed that are a) completely bogus; b) unsupported by proper documentation (medical records, expert reports, etc.); c) pro se. These cases take a long time to get through the system because there is no more lenient court in the world than the vaccine court about giving claimants more time to get it right – if I need another 30, 60 or even 90 days to do something, I simply call my opposing counsel, they agree and we file a stipulation.
2. Much of the time between case opening and closing is often devoted to fee and cost disputes. You would be shocked at the fee applications some of the major firms submit. It appears that the game for them is to ask for as much as they can and then litigate or negotiate. (By the way, we have never had a fee request challenged – they have all been entered by stipulation).
3. The cases that are brought as Table Injuries go quite quickly. The Vaccine compensation program was designed around the idea that the injuries that are scientifically accepted as being caused by vaccines should be compensated without much discussion. That principle is followed in my view. However, some claimants seek special damages because of the cap of $250K on general damages. That, of course, leads to the typical push back from defendants. Nevertheless, the awards seem pretty generous to me (with the exception of the general damages cap, which is a disgrace – Congress’ fault, not the program).
4. Cases that are not Table Injuries take much longer – and that is understandable. Claimants are always pushing to get compensation for everything that happens to them following a vaccination. Some of these claims may be spurious; others may be unsupportable by science. (I wonder how the hundreds or thousands of autism cases affected Nora’s averages). In my view, the Special Masters cultivate the principle of giving any tie to the claimant. It is a loose “preponderance of the evidence” standard.
Now, most of our cases are non-Table Injuries. Our experience is that the vast majority of them don’t exceed the 240-day guideline. We do have a beef with how long it takes to get the claimant’s money and our money (separate checks) after the case is concluded. It can be, often is, a few to several months.
All in all, I think the program is superior to litigating against drug companies, which I’ve done many time. Most of the people who go through the Vaccine Court would not even be able to get an attorney if the only recourse was to sue Merck or its ilk. Just too expensive for the types of claims that are typical.”
Nora’s article says she “studied nearly three decades of previously untapped material” but it’s not clear whether she interviewed any plaintiff’s lawyers, like Lee, or gathered anecdotal information. The latter approach served Prof. Deborah Hensler very well when she wrote a well-regarded book on class actions when she was employed at the Rand Institute. Given the differences between Nora’s apparently paper-based research and Lee’s real-world experience, it may be that this topic deserves a more in-depth look with a different methodology. It was good of Nora to dig through decades of materials, shine the light of inquiry, and raise this topic for discussion. She has nicely served the public and academia with her research.
The fund is a subject of criticism and debate. According to an episode on NPR, as overheard by Lee, the government intentionally does not publicize the fund because it is concerned that people might become more scared about using vaccines.
By Karin Gaudet-Asmus
On May 16, 2015 Stanford alumni from all over the world joined forces to make a difference in their local communities by volunteering for a day. This initiative, called ‘Beyond the Farm’, takes place every year in May. For May 16, 2015 Robert Gaudet and Karin Gaudet-Asmus helped organize this event in El Paso, Texas. A first for the city!
Together with Jose Luis Vilarreal, an officer of the alumni group in the region (El Paso Del Norte Stanford Alumni), we considered various local charities that could use the help of Stanford alumni for a day. As the charity of our choice, we picked Reynold’s Home, a shelter for women and children. Reynold’s Home celebrates its 25th anniversary this year.
Dr. and Mrs. William J. Reynold’s opened up their private home, a two story farmhouse built in 1926, to families in need. After the Reynolds passed away, their children (including current director of the home, Dorothy Truax) recognized what a great resource the home was for providing families in need with a place to stay while they put their lives back in order. Reynold’s Home is now publicly known as a shelter in El Paso and the community is welcome to help the shelter with their mission. One of their main projects at the moment is the building of a storage facility, for which they could use the help of a construction company and electrical expertise.
The families in the shelter typically have problems with domestic violence, immigration issues, poverty and other crisis situations. While at the Reynolds Home, individuals are expected to go to school and find employment. They acquire the skills to live productive lives when they leave. Families reside at the shelter for periods ranging from one month to two years. Dorothy personally takes time each week to talk to all of the ladies staying in the shelter to help them overcome obstacles on their way to independent living. The ladies are directed towards school programs, job counselors, life-skills classes, health programs, daycare and other resources in the community. Even when residents leave, Reynold’s Home provides them with occasional assistance in the form of food, payment of rent, deposits or utility bills. Reynold’s Home provides the women with a family for life!
A group of approximately 15 Stanford alumni, friends and family signed up for the El Paso Beyond the Farm initiative at the Reynold’s Home. There were multiple events scheduled for each part of the day, and activities included crafts, sports, and educational presentations, as well as a marketing and manual labor effort by the volunteers. Before the activities started in the morning, one girl – after observing the strangers in her house – asked me [Karin] whether we were there to entertain the kids. When the answer was affirmative, the girl shrieked and quickly ran upstairs – probably to inform her siblings and friends of the fun that was to be had.
In the morning, kids interested in crafts joined a competition led by volunteer Sandy V. and other members of Wise Latina International, as well as Stanford alum Andrea, to make the nicest painting of Reynold’s Home. The winners received coloring books as prizes. Stanford alum and Emmy award winner, Liz, together with volunteer Amanda, used the kids’ drawings to update promotional materials for Reynold’s Home. Some of the kids preferred to play sports and joined volunteers Gilbert and Mario for a game of soccer in the morning and football in the afternoon. In the afternoon, kids interested in crafts used q-tips to paint in pointillism style, as instructed by volunteer Glennis, with help from Isabella and others. The women got crafty, too: I gave instructions on how to make a print on canvas with gesso. Volunteers Monica and her daughter Cristina, who had her prom later that day, babysat some of the smallest children while the moms were crafting. Between craft sessions, Robert Gaudet gave a presentation to the women on wage and hour law and on how to expunge criminal records. Sandy C. of Wise Latina International helped translate the legal presentation and craft instructions, and helped out moms with the crafting activities. The handy men and women among us, such as volunteers Bryan and Terri, sanded and painted a greenhouse. The volunteers, staff, children and moms alike enjoyed the barbequed burgers and hot dogs that were prepared by Reynold’s Home’s own volunteers, Josh and Amanda, while listening to a presentation by Liz of Wise Latina International, a group that’s focused on empowering women. But perhaps the biggest hit of the day, for both the moms and the kids, was the Kung Fu lesson provided by Matt, a friend of Stanford alum Bryan and his wife Glennis, who takes Kung Fu classes.
By Robert J. Gaudet, Jr.
From April 24-25, I attended a nationwide conference on workers’ rights, organized by NELA (National Employment Lawyers Association). The participants arrived from around the country to share experiences representing employees as the “good guys” in the courtroom.
One speaker, a Texas lawyer, remarked, “no restaurant complies” with the Fair Labor Standards Act (FLSA). Aside from requiring employers to pay at least the minimum wage (which is now $7.25 nationally) and one-and-a-half times the regular rate for overtime beyond 40 hours per week, the FLSA also requires employers to give written notice to their employees about their rights to overtime pay. I asked a few other lawyers at the conference if they agreed that all restaurants violate the FLSA. Surprisingly, all of them did. Apparently, virtually every restaurant violates one or more of the FLSA requirements, especially the requirement to give written notice.
The home care industry was identified as a field that needs more litigation to protect the rights of employees. “There are violations everywhere,” a speaker noted, and it is a “growing wild west industry.” About 2.5 million people work in home care and 70 percent of them are employed by private, for-profit companies, many of which do not follow the rules. Companies can earn, for instance, $19/hour for care but pay just $8/hour to care givers. Some companies have engaged in Medicaid fraud which can be grounds for a separate whistleblower, or qui tam, action against the same defendant.
One speaker stated that, in 2016, Texas regulations will bring new rights for a minimum wage and overtime for employees who provide elderly care. The speaker also predicted that more workers will be put on fluctuating workweek schedules in 2016.
Speakers shared useful tips. One advised that plaintiff’s lawyers should, when they start representing a client with a new grievance, file a FOIA request with the Department of Labor to find out if there were any previous complaints against the same employer. Another speaker said she might discuss settlement with a defendant before filing a complaint but she will ask the defendant to enter into a tolling agreement. That way, her clients are not penalized under the statute of limitations for taking time to negotiate.
The United States Solicitor of Labor, M. Patricia Smith, spoke at the conference. She noted that, after the Obama Administration releases an overtime rule, staff will next prepare Administrative Interpretations. The Bush Administration had revamped the FLSA by issuing Opinion Letters on the day before President Bush left office. The Obama Administration will not issue Opinion Letters but rather prefers Administrative Interpretations, which will be issued in the near future. The Obama Administration has, so far, issued roughly 100 Fact Sheets, which are available at the Department of Labor’s website (www.dol.gov).
As did other speakers, Ms. Smith noted a common violation of FLSA is the misclassification of workers as “independent contractors” when they are, in fact, employees. She said this problem is especially prevalent in the construction industry. Ms. Smith related that, in an Arizona Tract case in Arizona and a GSA Systems case in Utah, the Department of Labor obtained consent judgments against companies that had misclassified employees as “owners” of the LLCs when, in fact, they were simply employees.
Janitors and cleaning personnel are often misclassified as “independent contractors” when, in fact, they are employees with legal rights to compensation under the FLSA. Similarly, cable installers and health care works are often misclassified. Ms. Smith noted that the home care industry will see a 40 percent increase in the next years for both the elderly and disabled.
In a separate panel discussion on arbitration, speaker Shannon Liss-Riordan noted that 40 percent of companies are inserting mandatory arbitration provisions into their employment agreements. That is a stark increase from several years ago when it was closer to 16 percent. The result is that employees, now, have less access to courthouses. They are increasingly forced into arbitration to settle legal disputes with employers.
Another speaker noted, “arbitration is faster and cheaper” with some advantages over traditional litigation. The speaker advised that lawyers should “go for it.” Among other things, employers are required to pay for the cost of arbitration under the AAA and JAMS rules.
With a wide variety of speakers including a government representative, private practitioners, and a judge, the NELA conference covered the basics of wage and hour law but offered enough sophistication for veterans, like Jac Cotiguala of Chicago who’s belonged to NELA for decades, to learn about new legal developments. The conference, called “Protecting Pay: Representing Workers With Wage & Hour Claims,” took place in The Sphinx Club in downtown Washington, D.C.
Because I practice in El Paso, I was interested in what participants thought about the risk of deportation for illegal immigrants who stand up for their rights. During her remarks, Ms. Smith said the Department of Labor (“DOL”) has a Memorandum of Understanding with Immigration and Customs Enforcement (“ICE”). ICE sends DOL a list of names to DOL before it does a workplace audit. ICE then “stand[s] down,” stopping any deportation proceedings against illegal immigrants if there is an DOL investigation into an employer’s violations of labor laws against the same people.
I asked a few private lawyers if their clients had ever been deported or if they had ever seen that happen as a result of the clients’ participation in private lawsuits. They said no. One lawyer from a large employment firm had not seen that happen. A senior lawyer with decades of experience had, also, not seen illegal immigrants ever deported for participating in a private lawsuit. The consensus seemed to be that illegal immigrants who file lawsuits under the FLSA are not at risk for deportation unless they have been convicted of felonies.
On the day immediately before the conference, some NELA members, including myself, consulted with elected officials and their staff in the U.S. Congress. Another member of NELA and I met with Counsel for Senator John Cornyn (R-TX), in the Hart Senate Office Building, to discuss the Arbitration Fairness Act and the Civil Justice Tax Fairness Act.
After the conference, the exchange of practical and legal ideas has continued through the vigorous NELA listservs. As it turns 30 years old, NELA has become a valuable resource for lawyers who care about the rights of employees.