A Writ Improvidently Granted

When a matter rises to the level of the Supreme Court of the United States, the case accepted for argument has the potential to set a precedent. In a recent matter, a 61-year-old former attorney for the state of Illinois, Harvey N. Levin, alleged he was terminated in favor of a younger female attorney. While the case could have examined remedies under the Age Discrimination in Employment Act (ADEA), instead argument caused the court to question its presence on the docket.

Opening day for the new session of the Supreme Court ended a week later with an unceremonious decision that stated succinctly the outcome of oral argument in the case of Madigan v. Levin, [t]he writ of certiorari is dismissed as improvidently granted.

At question was whether federal or state employees can proceed to court on a claim of age discrimination instead of pursuing all remedies available through an administrative action under ADEA. Findings could have been relevant to state and private employers, but the question is no longer at issue.

Instead, the oral argument became an exercise in the extrication of the court from a case on which certiorari should probably not have been granted. Highlights included:

  • Discussion on jurisdictional issues that precluded argument by the Illinois Solicitor General attempting to dissuade the court of the constitutional claim
  • Inability by counsel for Mr. Levin to respond to the question of whether his client was an employee or an appointee
  • Justice Scalia commenting that statements made by counsel for Mr. Levin were not included in his brief, to which counsel repeatedly responded,  [w]e could’ve done a better job

As suspected by those familiar with the oral argument, the court disposed of the case and the question it supposed.

This case makes a statement about the necessity of experienced, high skilled legal counsel at any phase of litigation. Mr. Levin was not served by his representation and important questions were not answered. If anticipating litigation, seek legal counsel in New York with the experience and knowledge to decisively present your case in any court of law.

Do You Know Who is Working for You?

The business of doing business is complicated. Whether you have corporate, regulatory, immigration or other issues, our firm advises clients on exposure and compliance matters and works to find smart solutions. Good corporate governance means solutions are put in place before a problem occurs. For employers, knowing who is working for you goes a long way to protecting proprietary information and profit.

Following disclosure of sensitive data and information by government contractor Edward Snowden, attention shifted to his access to top-secret government files. In addition to perturbing the National Security Administration (NSA), Mr. Snowden has also started a national conversation about the practices of a government spying on its own people without their knowledge.

Because of their highly sensitive nature, the serious disclosures by Mr. Snowden raise concerns for employers who must protect sensitive and secret information from competitors and foreign interests.

When hiring or considering an employee for an assignment, the government pairs a background check process with the level of confidentiality associated with the position. Types of security clearances include:

  • Confidential
  • Secret
  • Top-secret

The epic failure of the background check on Edward Snowden includes a warning from the Central Intelligence Agency (CIA) in 2009 that Mr. Snowden was attempting to access unauthorized computer files and was released from his position as a result.

If the NSA can be led astray by a poorly performed background check, so can you. Protect your company and trade secrets with properly structured and rigorous background checks on personnel with access to vulnerable and sensitive company data.

Make sure your business is protected from within. Speak with a risk management attorney with our firm if you have questions in New York.

To Act Without Liability for Misjudgment and Carelessness in the Formulation of Policy…

In October, the trial of five former employers of imprisoned former financier Bernard Madoff began. Expected to last months, the trial should bring to light more of the murky details of the largest financial fraud in United States history. Recently, a New York appeals panel dismissed the case of a group of investors who sought to hold the Securities and Exchange Commission (SEC) financially responsible for investment monies lost when the Ponzi scheme run by Mr. Madoff collapsed.

In Molchatsky v United States, plaintiffs in the case alleged the SEC negligently failed to act on information and complaints received over a 16-year period concerning the investment activities of Mr. Madoff. The lawsuit claimed the SEC had multiple opportunities to uncover and stop the fraud perpetrated by Mr. Madoff, but the agency failed to do so.

On appeal from the district court, the Second Circuit court affirmed dismissal of the case for the following reasons:

  • The plaintiffs claimed the negligence of the SEC exposes the agency to the Federal Tort Claims Act (FTCA), which is an exception to the immunity usually granted to agencies of the United States government.
  • The Discretionary Function Exception (DFE) is an exception to the exception of the Federal Tort Claims Act (FTCA).
  • In this case, the DFE suspends the ability of the plaintiffs to sue for negligence under the FTCA.

In this case and those of others seeking to recover lost monies from the handling of the matter by the SEC, the appeals court writes, The DFE is not about fairness, it “is about power.”

In the months to come, more details of power abused by Mr. Madoff and his associates should come to light in court. When you have strategic business litigation or regulatory concerns in New York, speak with an attorney.

Department of Labor Offers Guidance After Supreme Court Decision

In June of this year, the United States Supreme Court ruled in a landmark case that found Section Three of the Defense of Marriage Act (DOMA) to be unconstitutional and in violation of the liberties provided under the Fifth Amendment. In September, the Department of Labor (DOL) issued guidance concerning employee benefit plans as they are affected by the decision.

The Supreme Court decision in United States v Windsor affects interpretation of the Employee Retirement Income Security Act (ERISA) by plan sponsors, beneficiaries and other parties. In guidance provided by the Employee Benefits Security Administration (EBSA), the following points are made:

  • The terms spouse and marriage as defined in Title I of ERISA refer to couples of the same or opposite sex that were legally married in any state or jurisdiction.
  • These terms, under ERISA, do not apply to same-sex or other couples who have undertaken civil union or domestic partnerships in a state or jurisdiction that does not recognize same-sex marriage.
  • The benefits of same-sex couples who are legally married in a state or jurisdiction that recognizes same-sex marriage are protected regardless of whether they currently reside in a state or jurisdiction that does not recognize same-sex marriage.

Under ERISA, those definitions now flow with the legally married couple, regardless of their geographic location. Notes Assistant Secretary for Employee Benefits Security Phyllis C. Borzi, [b]y providing greater clarity on how the Supreme Court’s decision affects one of the laws we enforce, we are contributing to greater equality and greater protection for America’s working families. 

When you have questions about employee benefits, speak with an experienced ERISA attorney in New York.

Smile, You’re on Camera: Insurance Companies Use Surveillance to Monitor Claimants

The National Security Agency isn’t the only one spying on the public. Insurance companies often use surveillance to investigate disability claims.

While it may seem creepy, most surveillance practices, which include taking photos or video of activities outside the home, are legal and admissible in court. The rationale is that insurance companies are entitled to root out fraudulent claims.

Unfortunately, insurance companies also use surveillance to deny perfectly valid claims. In a 2009 case reported by ABC News, The Hartford attempted to discontinue disability insurance payments based on video footage of Jack “Rocky” Whitten eating salsa and chips at a local restaurant. The insurance company argued that the video captured by a private investigator proved that Whitten, who suffered a broken neck on the job and was declared permanently disabled by his doctors, was fit to perform “full time sedentary occupations.”

This is a clear example of an insurance company improperly overemphasizing the significance of surveillance images. Thanks to the assistance of a disability attorney and the negative press coverage, The Hartford ultimately reinstated Whitten’s benefits and paid him over $45,000 in past due payments.

As this case highlights, photos and video footage can be powerful tools for insurance companies. While they often do not tell the whole story, it can be difficult for claimants to rebut the evidence. So it’s best to assume that you are being watched.

Insurance companies are more likely to use surveillance footage to pressure unrepresented claimants to abandon their claims, even when the videos or photos are harmless. To ensure you receive the benefits to which you are entitled, it is advisable to consult with an experienced New York disability attorney at Michael Sepe, LLC.