JGL attorneys, Cary Hansel and Matt Ling stepped up to the ALS Ice Bucket Challenge this week in response to a client nomination. Sporting suits and ties in the office, Hansel and Ling bravely dumped buckets of ice water over their heads, joining the cause to raise awareness and funds for ALS research.
Matt and Cary not only followed through with the Ice Bucket Challenge, they also will be donating a portion of their fees from a recent civil rights case to the ALS Association. For more information on how you can get involved, visit the ALS Association website.
ALS, also known as “Lou Gehrig’s Disease,” is a progressive neurodegenerative disease that affects the nerve cells in the brain and spinal cord. To date, the Ice Bucket Challenge has raised millions of dollars worldwide to help fund research into treatment options and hopefully one day, a cure.
Matt and Cary stand with the rest of the JGL family in support of ALS victims.
Late on Friday, August 22, a Baltimore jury returned a $100,000 verdict against two former Baltimore police officers for beating a 16 year-old boy. Plainclothes officers in an unmarked car encountered the boy walking beside a family member’s home in the Park Heights neighborhood in the early morning hours of July 10, 2010.
The plaintiff’s case was that the Caucasian officers provoked the young African American boy to run by shouting racial epithets and other insults at him. When he ran in fear, two officers chased the child to the rear of his family’s home, where the plaintiff testified that he was savagely beaten, punched, kicked, choked and handcuffed. The boy was slightly built, 5’4” and approximately 120 pounds at the time.
Three independent witnesses testified that they saw the officers beat the minor. After two of the witnesses were seen by officers, the beating victim was handcuffed and transported to a different location approximately 3 blocks away, where he was searched and released without charges.
In closing argument, the plaintiff’s counsel, Cary J. Hansel, of the Greenbelt law firm, Joseph, Greenwald & Laake, argued that the minor was moved as part of a cover up so that when supervisors responded to the minor’s new location, there would be no witnesses there to the attack.
The officers, who were with the now-disbanded Violent Crimes Impact Division, used the incident as a pretext to search and interrogate the boy about any crime in the area. He had no such information to provide them and the search turned up no contraband.
The former officers found liable were Kody Taylor and Matthew Sarver. Both left the department after the events underlying the lawsuit. At trial, Taylor took the Fifth Amendment to avoid testifying about the circumstances surrounding his departure from the Baltimore Police Department in the face of an integrity sting. The sting resulted in allegations that Taylor was involved with pocketing money recovered from an undercover officer posing as an arrestee.
Hansel, who is well-known for his police misconduct work, including a 2006 verdict that remains the highest civil rights verdict ever collected in Maryland, had this to say, “The jury restored one brave young man’s dignity while protecting all of our rights. My office will continue this fight until these abuses stop once and for all.”
(Pro Football, Inc. d/b/a/ The Washington Redskins)
DC’s professional football team, the Washington Redskins, has been in the news quite a bit as of late – and most of it has not been good. Earlier this summer, the U.S. Patent and Trademark Office issued a 2-1 ruling in Blackhorse v. Pro-Football, Inc. cancelling the team’s trademarks.
Now, the Redskins are embroiled in a very different type of litigation in the U.S. District Court in Maryland. At issue in Green v. Pro Football. Inc.is an alleged Redskins’ bounty program. Former New York Giants player, Barrett Green, has alleged that he was injured as a direct result of the Redskins’ bounty program run by former defensive coordinator, Gregg Williams. Bounty programs involve providing players with incentives, in this case financial incentives, to deliberately injure opposing players.[3]
A play-by-play on the facts of the case
Barrett Green played for the New York Giants from 2000-2004. In 2004, Green sustained a knee injury, which was listed on an injury report.[4] Shortly thereafter, the Redskins played against the Giants, and Green sustained a career ending injury when former Redskins player Robert Royal performed an illegal maneuver and “lowered his helmet and at full speed dove into Green’s knees.”[5]
Green maintains that though he initially suspected foul play, he relied on representations made by Royal and others that the incident was unintentional. In 2012, however, the Washington Post published an article on the alleged bounty program.[6] Subsequently, the NFL launched its own investigation, and confirmed that while with the New Orleans Saints, Williams had administered a bounty program.[7]
With this new information, Green filed suit in Prince George’s County against the Redskins and Royal for state law torts he suffered as a result of the bounty program. The suit has since been removed to the U.S. District Court for the District of Maryland. Recently, the defendants filed Motions to Dismiss, or in the Alternative, for Summary Judgment.
The Court Ruled that the Counts Associated with the Alleged Bounty Program Can Proceed to Trial
In support of their arguments to have the case dismissed, the defendants argued that (1) the claims were barred under the statute of limitations, and (2) a Collective Bargaining Agreement (“CBA”) preempted state law claims pursuant to the Labor Management Relations Act, 29 U.S.C. § 185(a).
In Maryland, generally the statute of limitations bars a claim if it is not brought within three years of the occurrence. The discovery rule, however, is an exception and the statute begins to run once an individual gains knowledge or discovers the basis for a claim. Another exception relates to the fraudulent concealment doctrine.
The Court stated that Green’s claims fell into two categories: those associated with the bounty program and those that were independent of the bounty program. The Court dismissed the claims which were not linked to the bounty program since they were clearly barred by the statute of limitations, and did not meet a qualifying exception. In other words, he should have brought them back when he knew about them and within the three year period to bring a claim in Maryland.
However, the Court ruled that the statute of limitations did not bar Green’s bounty program claims since he did not discover the existence of the alleged bounty program until 2012. Since he could not have filed suit for something he could not have discovered back then, the Court will allow the bounty program claims to remain though they were filed after Maryland’s three-year filing period. The Court was satisfied that Green alleged facts sufficient for a jury to make a determination as to whether or not the defendants fraudulently concealed a bounty program. For example, in 2004, Royal participated in a press conference and stated that the hit was not intentional. In his pleadings, Green alleges this and other misrepresentations prevented Green from learning of the existence of the bounty program until 2012.
Most league disputes do not make it into the courts since their CBA requires arbitration. The team argued that this case is no different. However, the Court rejected the defendant’s argument of preemption by a CBA since the case involves claims of intentional torts and not issues that are traditionally covered by a CBA such as labor disputes. “Suggesting that the intended target of the mayhem could in any way be bound by a CBA to yield his right to seek legal redress in the face of such deliberate aggression is not only inadmissible; it is ludicrous.”[8] Lastly, the Court granted Green’s request to amend his complaint to add a claim for civil conspiracy.
As a result of this ruling, the Redskins must now prepare to go to trial in federal court over this issue of the bounty program. There will certainly be more to come.
* * *
[1]Green v. Pro Football, Inc., CIV. PJM 13-1961, 2014 WL 3385927 (D. Md. July 8, 2014).
According to the National Institute of Mental Health, in 2012 there were 43.7 million (18.6%) adults aged 18 or older in the U.S. with a mental illness[1]. In 2008, 13.4 percent of adults in the United States received treatment for a mental health problem (this includes adults who received care in inpatient or outpatient settings and/or used prescription medication for mental or emotional problems).
Based on the above percentages it is obvious that as attorneys in family law cases we are called upon to work with clients, or to oppose parties, who are currently in treatment, should be in treatment, or have previously been in treatment for mental illness. These are sensitive, private issues, which most individuals do not wish to share with anyone. The confidential nature of such issues has been recognized by the Maryland legislature, which codified a privilege which gives the right to refuse to disclose information regarding the client’s treatment.[3] The patient has the right to prevent his or her therapist from revealing any information as well.
When the privilege was initially enacted, it contained an exception which allowed a trial judge to compel the disclosure of privileged mental health records in a custody proceeding if the judge believed that the disclosure was necessary to determine custody.[4] This exception remained in the statute until it was repealed in 1977. The balance of the privilege statute remained unchanged.[5] The decision to repeal this exception was not taken lightly, and numerous organizations and individuals complained that the exception was not fair. Their argument was that the exception undermined an individual’s ability to speak candidly, or may even cause that individual to terminate therapy because they feared that their discussions with their therapist may be revealed to third parties.[6] If the individuals did not speak candidly or terminated therapy due to this fear, everyone, including the children, would suffer.[7]
As with any privilege, the mental health privilege is not absolute. Parties may waive the privilege by putting their mental health at issue, either as an element of their claim or as a defense. In Laznosky v Laznosky, the Court of Appeals was confronted with the issue of whether a parent (here, the mother) had put her mental health at issue when she sought custody of the children, and the parent makes the necessary claim that she is a fit and proper person to have custody.[8] After reviewing the vast legislative history of the privilege, the original custody exception and the decision to repeal the exception, the Maryland Court of Special Appeals found that one does not automatically put their mental health at issue by requesting custody of their children or making the requisite claim that they are a fit and proper person to have custody – otherwise there would be no privilege at all!
We accordingly hold that, while the mental and physical health of a party is an issue to be considered by the trial court, a person seeking an award of child custody that claims to be a fit parent, does not, without more, waive the confidential psychiatrist/psychologist-patient privilege in respect to her or his past mental health “diagnosis and treatment” communications and records. Fitness of parents is a fundamental and primary element of child custody litigation. It is present even if not stated. It is no more present when it is stated by one party or the other. An assertion that one is fit is merely an assertion that one meets the qualifications to be awarded custody. If it were the law in Maryland that anyone seeking custody of children specifically placed their mental condition in issue, there would be no psychiatrist-patient privilege in custody disputes. The Legislature clearly established a contrary public policy. It chose to preserve the privilege in custody cases.
But the discussion can not end there. While every party who brings a claim for custody may not have to disclose their mental health records, many parties feel forced to do so. If the opposing party has made an issue of the client’s mental health, and it is clear that the client either has or is currently dealing with mental health issues, you (the attorney and client) are immediately put on the defensive. If the client wishes to preserve his or her privacy, and not waive the privilege, the court is left with a negative inference that may legitimize the issues raised by the opposing party, and the client now has a Hobson’s choice.
If the client chooses not to waive the privilege, the client may be disadvantaged because those portions of their mental health records, or their therapist’s testimony, that are favorable and would indicate they are a fit and proper person to have custody will not be presented to the court. This must be weighed against the fact that by waiving the privilege the floodgates are opened, and the client cannot pick and choose which information the therapist has remains shielded by the privilege.
Waiving the privilege will likely lead to the client’s records ending up in the hands of the opposing party, and also before the court. Perhaps the only thing more nerve racking than having your therapist take the witness stand, subject to cross-examination, is having to submit your therapy records to the court and opposing party to pour over. Additionally, if a situation arises where the client’s therapist is unwilling or unable to testify in court, the client will not have the benefit of having a medical professional explain the records to the court, and will run the risk of having the court misinterpret the records. In this case, where the client has waived the privilege, but the author of the records is not testifying, one last ditch effort to protect the client’s privacy is to ask the court to exclude these records as hearsay. While there is a hearsay exception which allows for the introduction of medical records, there is a good case to be made that therapy records lack most of the indicia of reliability in which the exception for medical records is grounded. First, therapy records are generally being offered to “prove the truth of accounts of events and of complicated medical and psychiatric diagnosis. The accuracy of such accounts is affected by bias, judgment, any memory; they are not the routine product of an efficient clerical system. There is here lacking any internal check on the reliability of the records in this respect.”[9] Further, not only the accuracy of records may be compromised, but also therapy records contain diagnosis, which involve conjecture and opinion. The records often contain medical terms, phrases or symbols which a lay person, including the judge, may misinterpret. Additionally, the therapy records almost certainly contain statements from the client, or third party statements relayed to the therapist through the client. These statements are often taken out of context, and recorded based on the therapist’s own impressions or conclusions. Without the ability to cross examine the therapist, the court will never receive an accurate, complete picture of the client’s issue and treatment.
The court in New York Life Ins. Co. v. Taylor ultimately ruled that the records were inadmissible, however, you cannot rely on the same ruling from a Maryland judge presiding over a custody matter who may ultimately find that the court must review the records to determine what is in the best interest of the child.
So where does that leave us?
Instead of waiving the privilege consider an independent psychiatric evaluation of all involved parties. The evaluator will almost certainly require the parties to provide all of their mental health records, and that the parties allow the evaluator to speak with their treating professionals. However, the upside is that allowing one psychiatrist or psychologist to examine all involved parties and relevant collaterals may achieve a more balanced view of the situation. This view is shared by Dr. Jonas R. Rappeport, whose letter is included in the legislative history of Senate Bill 90 which bill excised the exception permitting judges to compel disclosure in custody matters, and which is quoted in Laznovsky, who felt that the court is well served by having the same psychiatrist and psychologist examine all parties in question to custody battles and thereby have an opportunity for a very well balanced view of the situation . . . [W]e feel that we are much more capable of rendering an unbiased, overall view of the situation and presenting recommendations that are truly in the best interest of the child than we might be able to do should we be involved with only one parent whether it be a long term therapeutic relationship or merely an evaluation.[10]
While, engaging a private evaluator, may be the least offensive choice, it comes with a hefty cost. The services of a private custody evaluator can cost anywhere from $5,000.00 to $20,000.00 or more. The reality is that most clients are unable to afford such an expense when already embroiled in costly litigation. Therefore, if the client doesn’t have the funds for a private evaluation, you will find yourself contemplating the choice between waiving the privilege and exposing the client’s innermost personal thoughts, asking the Court to appoint its custody evaluator, or perhaps leaving the trial judge with a less than favorable impression of the client’s mental health.
* * *
Jeff Greenblatt thanks Allison McFadden for her contributions to this blog post.
* * *
[1] This data was collected defining mental illness asAMI: meaning Any Mental Illness: A mental, behavioral, or emotional disorder (excluding developmental and substance use disorders); Diagnosable currently or within the past year; and, of sufficient duration to meet diagnostic criteria specified in the 4th edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV).
Foreclosure. It was a relatively rare term just a few years ago but as we all know, with the collapse of the economy and the burst of the housing “bubble,” came the increase of foreclosures and bank-owned properties all over the United States.
In 2013, approximately 462,970 homes were repossessed by banks in the United States. Luckily, the average number of foreclosures has decreased in many states. Unfortunately, Maryland has not fared as well. In 2013, Maryland reported an increase in its foreclosure sales by 117%! This means that defaults, short sales, and foreclosures are still a very real issue for many Marylanders.
However, the bigger question isn’t what happens if you lose your house to foreclosure; it’s what happens after a foreclosure. Many people believe that once their house is sold at a foreclosure sale, then their issues are over. Sure, their credit is damaged and they might not be able to buy another house for a few years but for the time being, their financial woes related to owning their home are over. Unfortunately, that isn’t usually the case.
When you purchase a home, you sign a Promissory Note stating to the bank that you promise to pay a certain amount of money. The Note doesn’t say you promise to pay for as long as you own the home, just that you promise to pay! More often than not, homes that go into foreclosure are worth less than what is owed on the Note; the common term that is used to describe this scenario is “underwater.” This means that when the bank attempts to sell the property at a foreclosure sale, it is rare that a third party purchaser will buy the property and the bank oftentimes repossesses the home. When this happens, there is usually a deficiency. This occurs when the amount of money owed to the bank is not satisfied by the sale of the home at a foreclosure sale.
For example, Jane Doe owes $200,000.00 on her condo but the appraised value is only about $150,000.00. At the foreclosure sale, the bank purchases the property for $160,000.00. This leaves a deficiency of about $40,000.00 and guess who is responsible for the remaining debt? That’s right, Jane Doe!
After the sale occurs, the Court approves the accounting of the foreclosure sale known as the Auditor’s Report. Upon final ratification of the Auditor’s Report, the Bank can then petition the Court to issue a Deficiency Judgment. Once a Judgment is obtained, the Bank can start to liquidate other assets owned by the Debtor (in our example, Jane Doe) and can even garnish her wages in order to satisfy the Judgment. Even more disturbing is the fact that the Bank does not have to do this immediately after the foreclosure sale is over; it can wait up to three years! Under §7-105.13 of the Real Property Article of the Maryland Annotated Code, the secured party must request a deficiency judgment within three years after the final ratification of the Auditor’s Report. This means Jane Doe’s responsibility to pay off the remaining debt continues for many years after the foreclosure sale has occurred.
The Deficiency Judgment is a post-foreclosure remedy that is available not only to mortgage foreclosures but also to foreclosures of other lien instruments as well, including unpaid condominium or homeowner’s association fees. That’s right; you read that correctly, a condominium or homeowner’s association can foreclose on your home to collect unpaid assessments. This is true even if the homeowner is up to date on all of his or her mortgage payments.
This post should act as a cautionary tale to borrowers to beware before they sign on that dotted line at the closing table. Be sure you know what you can truly afford before finalizing the purchase of a home. If you find yourself in trouble financially, don’t wait until the last minute to notify your bank or condominium/homeowner’s association. A secured party is more likely to work with a borrower if they are up front and honest about their financial situation early on before late fees and other costs and expenses start to accrue (which is also added to the borrower’s total debt). Walking away from a home that is underwater isn’t necessarily the best option to get out from under the debt, despite the fact that many people believe it is. A foreclosure on your home doesn’t just ruin your credit; ultimately, it could affect your financial situation for many years to come.
GREENBELT, Md. (June 20, 2014) – Joseph, Greenwald & Laake, P.A. is pleased to announce that Timothy F. Maloney, a principal at the firm, has been named the 2013-14 Litigator of the Year and Administrative Lawyer of the Year by the Litigation and Administrative Law sections, respectively, of the Maryland State Bar Association (MSBA).
Maloney was honored at the MSBA’s June 13 Annual Meeting in Ocean City, Md.
“We join the Maryland State Bar Association in congratulating Tim on this well-deserved recognition of his many achievements on behalf of our clients,” said Burt M. Kahn, the firm’s president. “Throughout his career, Tim has been a litigation leader and has earned the respect from his peers for his work on complex and high-stakes legal matters.”
Maloney has obtained millions of dollars in recoveries for his clients in a wide variety of complex matters, including civil rights, employment discrimination, whistleblower actions and high-stakes business litigation. He also has taken on the government in numerous high-profile police misconduct and criminal defense cases.
In addition to his practice, Maloney is a member of the Maryland Judicial Campaign Conduct Committee, through which he works to promote the integrity of judicial elections and has helped establish statewide guidelines for judicial campaign funding.
As a member of the Maryland House of Delegates from 1979 to 1994, Maloney chaired the House subcommittees on higher education, transportation, public safety and capital budgets, and was instrumental in bringing significant public investment to Prince George’s County, including the Clarice Smith Performing Arts Center, Prince George’s County Courthouse, Hyattsville Justice Center and College Park Airport Museum.
Maloney also has held leadership roles with multiple civic and charitable organizations, including the University of Maryland Foundation, Maryland Catholic Conference and St. Ann’s Center for Children, Youth and Families.
Holland, Creed and Schramm-Strosser were honored at the MSBA’s June 13 Annual Meeting in Ocean City, Md.
Published by the MSBA, the latest edition of the Maryland Employment Law Handbook features a chapter about the Family and Medical Leave Act, written by Holland and Schramm-Strosser. Creed authored the book’s chapter on Federal Sector Employment Law.
Holland is a principal in the firm’s Civil Litigation Group and chair of the firm’s Labor, Employment, and Qui Tam Whistleblower practice. He counsels clients in individual and class action cases involving gender and race discrimination and sexual harassment, violations of the wage and hour laws, and wrongful termination. In his qui tam practice, Holland represents whistleblowers in actions under the federal False Claims Act.
Creed serves as senior counsel in the firm’s Civil Litigation Group. He represents clients – most notably federal employees – in a wide variety of employment-related matters, including wrongful discharge, discrimination, retaliation and professional discipline cases.
An associate in the firm’s Labor and Employment Law Group, Schramm-Strosser represents employees in a wide range of employment disputes, including those involving workplace discrimination, harassment and unlawful terminations. She also represents labor unions and counsels small businesses in employment-related matters.
GREENBELT, Md. (June 13, 2014) – Joseph, Greenwald & Laake, P.A. is pleased to announce that Nakia Gray, Senior Counsel to the firm, has been re-elected to the Board of Directors of the Prince George’s County Bar Association (PGCBA).
Gray was elected at the PGCBA’s June 10 meeting to serve another two-year term. She has been a member of the board since 2010.
“We congratulate Nakia on her accomplishments and contributions to the bar and local community that have earned her another term as a member of the Prince George’s Country Bar Association Board,” said Burt M. Kahn, the firm’s president. “We look forward to her continued service to our profession.”
A domestic relations lawyer, Gray has extensive experience representing clients in a wide range of family law matters, including divorce, custody, adoption, guardianships, estate planning and probate.
Gray is a long-time, active supporter of the pro bono Family Law Clinic of Community Legal Services Prince George’s County, Inc. (CLS) and currently serves as the mentor to volunteer attorneys with the clinic. She is the recipient of the Fred Joseph Award from CLS for her commitment to pro bono service in Prince George’s County.
Gray also is actively involved with numerous professional and civic organizations including the J. Franklyn Bourne Bar Association Judicial Nominations Committee, District of Columbia Bar Association, American Bar Association, Greater Washington Chapter of the Women Lawyers Division of the National Bar Association, and Taste Prince George’s Advisory Council. Formerly, Gray was a member of the Maryland State Bar Association Young Lawyers Section Council (2011-2012) and the J. Franklyn Bourne Bar Association Board of Directors (2008-2011). She also is a member of the Leadership Prince George’s Class of 2010.
Miller was quoted as saying “The issue of big accounting firms competing with BigLaw for legal work has been percolating for years, but now there’s a groundswell,” said Miller. “It’s the commoditization of the legal practice, and it’s likely that you’ll see non-lawyer fee sharing rules take hold in the U.S., just as they have in Europe, Africa and other [areas].”
Jay Holland was recently quoted in Law360 on four, important employment law issues.
On July 1, Holland commented on the U.S. Supreme Court’s 5-4 ruling for Hobby Lobby in its challenge to federal regulations under the Affordable Care Act’s requirement that companies provide employees with contraception coverage. The Court cited the Religious Freedom Restoration Act.
“Though the rationale that the RFRA extended to companies echoed the high court’s controversial Citizens United decision in 2010, Monday’s ruling was ‘unprecedented’ in the context of protecting the freedom of religion of a for-profit corporate entity,” said Holland.
“The implications can be fairly dramatic,” Holland said of the Hobby Lobby ruling. “Closely held entities employ millions and millions of people.”
Also on July, Holland was quoted regarding the U.S. Supreme Court’s agreement to review a former UPS Inc. driver’s pregnancy discrimination suit, a case that gives the justices a chance to clarify employers’ obligations to accommodate pregnant workers and which may impact Equal Employment Opportunity Commission guidance on the issue.
Holland said, “Employers would have to be careful to heed, first, the guidance of the courts in their jurisdiction, but certainly not be blind to or ignore the EEOC’s guidance. It’s always safer to take a broader view of your obligations an employer.”
On June 27, Holland was quoted in an article regarding the Word Cup and the opportunity it presents for employers to improve office camaraderie through soccer-themed activities. “I always think it’s a good thing for employers to come up with creative ways to boost employee morale,” said Holland.
On May 21, the issue of same- sex marriage was the topic in the article Employers Must Rethink Policies After Gay Marriage Wins. “That’s very significant, that these states where the federal courts have struck down [same-sex marriage bans] as unconstitutional … must also comply with FMLA,” said Holland. “That’s a very big issue for employers and employees alike. When it comes to company policies and practices, that’s something people need to look at,” he said.
From the Maryland Bar Journal, July 2014
by Barbara Jorgenson and Nakia Gray
In 2000, when our firm’s pro bono service began in an organized way, we were a firm of 22 lawyers. Today, we are a law firm of 42 lawyers, with two full-time offices. Are we a small firm? Are we a big small firm? Even an Internet search doesn’t help with the definition, but this we know: We are big enough to have rules and policies regulating our pro bono work which attracts us.
However you describe Joseph Greenwald & Laake, P.A., the firm can trace pro bono cases back to its beginning. JGL was founded more than 40 years ago by three then newly barred lawyers. One of those lawyers was the late Fred Joseph, who many may remember was a consummate trial lawyer who loved representing the little-guy underdog, most often for free. When you mention Fred’s name, someone almost always tells the story about Fred representing the guy who sold ribs from a food truck on Route 1 in Beltsville when the local government tried to kick him off his spot. This was the pro bono tradition under which your authors were raised and now practice.
Prior to 2000, pro bono at Joseph Greenwald & Laake was entirely self-directed. If you wanted to do it and could make the time, you did it. Then in 2000, things began changing.
In early 2000, co-author Barbara Jorgenson was talking with her partner, Steven Friedman, about the practice of family law in the firm’s home county of Prince George’s. Friedman mentioned that there had been a pro bono family law clinic in Prince George’s County for many years but the mentor had left the county to practice elsewhere. “When he went, so did the clinic,” said Friedman.
With that comment, a new pro bono clinic was about to be born.
But there were questions: How do you find pro bono clients? How do you decide among seemingly deserving pro bono clients? What kinds of cases should be included? How many should you take each year? Jorgenson consulted Neal Conway, the longtime executive director of Community Legal Services of Prince George’s County (CLSPGC), whose organization had more family law clients in need of representation than lawyers to provide that representation.
WASHINGTON (CN) – A North Carolina firm must defend itself against claims it lied to get into two Small Business Administration programs to snare lucrative government contracts, a federal judge ruled.
LB&B Associates Inc. describes itself on its website as a “diversified services company” doing unspecified work for government agencies, commercial entities, institutions and businesses. Central to its identity is presenting itself as a woman-owned, minority business.
But two lawsuits, one filed by former employees and the other by the federal government, claim that was not exactly the case, and that the company lied to get into two Small Business Administration programs for minority businesses.
In the first case the plaintiffs claim LB&B and its officers lied to get certified under the SBA’s Section 8(a) program, a business development program for small businesses owned by people who are socially and economically disadvantaged.
They claim the same pattern of dishonesty occurred when the company applied to the SBA’s Mentor-Protégé program, which allows a non-Section 8(a) company to form a joint venture with a Section 8(a)-eligible company. The program is designed to encourage an approved mentor, which is not a Section 8(a) concern, to provide managerial, financial, and technical assistance to improve a protégé’s ability to compete for government contracts.
Both would be, among other things, violations of the federal False Claims Act.
On April 14, 2011, the federal government filed a notice of election to intervene in part, electing to intervene in the plaintiffs’ claims only insofar as they relate to the LB&B defendants’ participation in the Section 8(a) program, but not the Mentor-Protégé program.
The government filed its complaint in intervention on Aug. 19, 2011. Its complaint asserts two additional causes of action against LB&B: for common law negligent misrepresentation and fraud.
The defendants sought to dismiss both lawsuits. LB&B and its officers first contended that because the government has intervened in this action with respect to the company’s participation in the 8(a) program, the claims filed by the original plaintiffs had been rendered impermissibly duplicative.
“The Government agrees that its complaint in intervention is the operative complaint as to all claims in which it has intervened. However, the Government notes that Relators also still have the right to continue in the action as parties with respect to those intervened claims,” U.S. District Judge Emmet G. Sullivan wrote in his July 16 ruling. “The Government therefore recommends that the Court deny as moot defendants’ motion to dismiss the Section 8(a) claims in Relators’ initial complaint.”
Sullivan agreed, noting the defendant made no showing whatsoever that continuing the earlier case would cause them any undue burden or expense that would justify limiting their participation.
“Therefore, because the Government’s complaint in intervention supersedes Relators’ complaint with respect to the intervened claims, and because Relators have the right to continue as parties to this action, the Court will deny defendants’ motion to dismiss Relators’ claims, to the extent that they are duplicative of the Government’s claims, as moot,” Sullivan wrote.
The defendants also argued that all of the government’s False Claim Act claim predating Feb. 1, 2001 are barred by the statute of limitations.
The government responded by arguing the defendants ignored a fundamental principle of the qui tam mechanism: “that for statute of limitations purposes, the Government stands in the shoes of the relator.”
“Thus, if a relator’s claim is timely, so too will a government complaint in intervention alleging the same wrongdoing be timely, regardless of when it is filed,” Sullivan wrote.
But the government’s claims did not all survive the judge’s scrutiny. Sullivan held that its common law fraud and negligent misrepresentation claims “sound in tort,” and therefore they are governed by a different statute of limitations that the other claims.
“The Government is correct that its complaint in intervention relates back to the filing of Relator’s complaint, because it arises out of the same conduct, transaction, or occurrence … However, it does not then follow that the ten-year statute of limitations in section 3731(b)(2) applies to the Government’s common law claims; the statute of limitations in 28 U.S.C. § 2415(b) still applies,” Sullivan wrote.
“Thus, the Court must count back from Feb. 1, 2007 to determine which claims are timely. Accordingly, to the extent that the Government’s fraud and negligent misrepresentation claims arise out of factual allegations that predate February 1, 2004, they are time-barred.”
Thank you for your interest in our firm. Before sending us an email, we ask that you please confirm your understanding of the following information. Our Web site, www.jgllaw.com, is intended for general use and is not legal advice. Your email is not intended to create, and our receipt of it does not create or constitute, an attorney-client relationship. Any information that you provide to anyone at our firm cannot be considered confidential or privileged unless we agree to represent you. By sending this email, you confirm that you have read and understand this notice.
