Legal Analysts

Showing posts with label supreme court. Show all posts
Showing posts with label supreme court. Show all posts

Wednesday, February 14, 2024

SCOTUS Ruling Clarifies Whistleblower Protections

On February 8, 2024, the Supreme Court of the United States rendered its decision for Murray v. UBS Sec., LLC, No. 22-660 (U.S. Feb. 8, 2024). 

The Court held that "[a] whistleblower who invokes [Sarbanes-Oxley] must prove that his protected activity was a contributing factor in the employer’s unfavorable personnel action, but need not prove that his employer acted with 'retaliatory intent.'”

As such, whistleblowers now have a much lower burden when they are retaliated against for reporting to supervisors or the government their reasonable belief of financial crimes, like wire fraud, securities fraud, violating the SEC, or federal law. 


Wednesday, July 06, 2022

NEWS 12: Attorney Andrew Lieb on News 12 Talking About The Landmark Supreme Court Issues


Attorney Andrew Lieb joined News12 to review all the landmark Supreme Court rulings from this term and how they impact you. We answered live social media questions on topics such as Guns, Abortion, School Prayer and more. You don't want to miss this if you care about your rights.

Thursday, June 23, 2022

NEWS 12 Interview: Supreme Court Strikes Down NY Gun Concealed Carry Law. Analysis with Attorney Andrew Lieb

New Yorkers are now subject to the same rules as 43 other states which are shall issue gun permit states. Moving forward, only sensitive places like the legislature, polling places, and courthouses will be 100% free of guns. This interview aired on News 12 Long island at 12:3pm on 6/23/22 

Monday, May 02, 2022

US Supreme Court Eliminates Availability of Emotional Distress Damages in Certain Discrimination Cases - Congress?

Discrimination victims may only recover compensatory damages and injunctive relief, not punitive damages or emotional distress damages, when they bring cases under the Rehabilitation Act of 1973, the Patient Protection and Affordable Care Act, Title VI of the Civil Rights Act, and Title IX of the Educational Amendments, unless Congress acts NOW! 

As a desk reference:

  1. The Rehabilitation Act of 1973 bars funding recipients from discriminating because of disability;
  2. Title VI of the Civil Rights Act forbids race, color, and national origin discrimination in federally funded programs or activities; 
  3. Title IX of the Educational Amendments prohibits sex-based discrimination education program or activity receiving federal financial assistance; and
  4. The Patient Protection and Affordable Care Act outlaws discrimination on any of the proceeding grounds, in addition to age, by healthcare entities receiving federal funds.

Until April 28, 2022, it remained an open question whether discrimination victims could recover emotional distress damages under those 4 federal statutes. Without emotional distress damages, a victim's recovery is limited because discrimination under these statutes do not concern fixed damages, like in employment where there is back-pay and forward-pay. Instead, most victims only experience humiliation, frustration, and loss of dignity when they are discriminated in healthcare, education, or by general recipients of federal funding. Nonetheless, the US Supreme Court ruled that emotional distress damages are not recoverable in discrimination cases brought under these 4 statutes when it issued its decision in Cummings v. Premier Rehab Keller

The case involved an accommodation request by a deaf and legally blind physical therapy recipient who requested an American Sign Language Interpreter at her sessions. You know, so that she could communicate and all. But, the provider said no, which was clearly an act of discrimination and not at issue before the Court. Instead, the Court was faced with determining whether the discrimination victim could recover emotional distress damages under the applicable statutes. 

Stated otherwise, the Court was charged with determining what recovery was available to a victim of discrimination where the Court had previously ruled that punitive damages were unavailable under the 4 statutes. So, what was left? Shouldn't emotional distress damages compensate a victim for their terrible and dehumanizing experience? 

No, said the Supreme Court because these 4 statutes were enacted under Congress' Spending Clause authority and such statutes are analyzed as contracts where defendants must have received clear notice of exposure to emotional distress damages for them to be recoverable. 

Yet, this clearly devastating decision to discrimination victims also has a clear solution. Congress needs to amend these 4 statutes today and provide clear notice that emotional distress damages are recoverable in all discrimination cases. Congress needs to act now. 


Tuesday, March 22, 2022

US Supreme Court Invites Discrimination Against Same-Sex Applicant to Religious Organization

What happens when there is "an employment dispute between a religious employer and an applicant who was not hired because he disagreed with that employer’s religious views?" 

Stated otherwise, isn't allowing an employer to deny a job to someone who disagrees with their religious views a license to discriminate? 

To get specific, what should happen if a religious employer refuses to hire a bisexual applicant in a same-sex relationship just because of such orientation and relationship status? 

Should it matter if that applicant applied to work as a staff attorney rather than as a minister for the employer? 

While the US Supreme Court declined their opportunity to let us know for sure, with binding precedent, in Seattle's Union Gospel Mission v. Woods, their denial of certiorari seemingly indicates that they are inclined to allow religious employers to discriminate against same-sex individuals and prevent such individuals from working in any aspect within the organization, even outside of a religious job like a minister. 

Thursday, January 13, 2022

Supreme Court Permits Biden's Healthcare Vaccine Mandate

All healthcare facilities that receive Medicare and/or Medicaid funding must ensure that their covered saff are vaccinated against COVID after the Supreme Court stayed injunctions that were preventing the implementation of the Department of Health and Human Services (DHHS) Interim Final Rule.

To be clear, the rule does not cover those healthcare workers with medical and religious exemptions and those who telework full-time. 

In permitting the mandate to be implemented, the Supreme Court found exactly what it said was lacking in the OSHA vaccine mandate case, to wit: specific language in a statute authorizing Biden's Executive Branch to impose a mandate. 

According to the Court, the core mission of the Department of Health and Human Services "is to ensure that the healthcare providers who care for Medicare and Medicaid patients protect their patients’ health and safety." In fact, the Court found that “infection prevention and control program designed . . . to help prevent the development and transmission of communicable diseases and infections” are precisely within the Department's charge. 

In addressing its divergent opinions, between OSHA and Healthcare, the Supreme Court explained:

The challenges posed by a global pandemic do not allow a federal agency to exercise power that Congress has not conferred upon it. At the same time, such unprecedented circumstances provide no grounds for limiting the exercise of authorities the agency has long been recognized to have.


Supreme Court Stays OSHA Vaccine or Mask / Test Mandate

In staying the OSHA vaccine mandate, the Supreme Court wrote "that the Secretary lacked authority to impose the mandate."

As the Court explained "permitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional authorization." The problem, as set forth by the Supreme Court, was that the mandate was indiscriminately applied. However, and to be CLEAR, the problem was not that it was unconstitutional, violated federalism, or anything else. 

The Supreme Court did not rule that either:

  • The Federal Government cannot issue a nationwide vaccine mandate; or 
  • Biden's Executive Branch cannot issue a nationwide vaccine mandate. 

Instead, it ruled that Congress did not grant OSHA the power to issue a nationwide vaccine mandate for all employers with 100 or more workers. 

In fact, the concurring opinion set it simply, "that power rests with the States and Congress, not OSHA."  

That is not to say OSHA has no power to regulate workplaces with respect to COVID. The Court carefully said OSHA does have power by writing that it was "not [] say[ing] OSHA lacks authority to regulate occupation-specific risks related to COVID–19. Where the virus poses a special danger because of the particular features of an employee’s job or workplace, targeted regulations are plainly permissible." As such, the Supreme Court invited a new mandate to be issued by OSHA and suggested that it targets COVID researchers or risks associated with crowded / cramped environments. 

As the concurring opinion explained, this case was decided on the Major Questions Doctrine, "'[w]e expect Congress to speak clearly' if it wishes to assign to an executive agency decisions 'of vast economic and political significance.'" Here, Congress did not clearly grant OSHA the power to do make this indiscriminate mandate. 

The fact that they didn't doesn't mean that they can't. Should Congress authorize OSHA now? 

Monday, December 13, 2021

Supreme Court Denies Healthcare Workers' Injunction Request on Vaccinate Mandate

The Supreme Court denied an injunctive request by healthcare workers who were required, by regulation, to be vaccinated over dissents by Justices Thomas, Gorsuch, and Alito who said the mandate violated The Free Exercise Clause. 

The basis of the request was that the regulation included exemptions for medical reasons, but not for sincere religious beliefs. According to the 20 workers seeking the injunction, "their religion teaches them to oppose abortion in any form, and because each of the currently available vaccines has depended upon abortion-derived fetal cell lines in its production or testing." 

According to New York State, the reason that no religious exemption existed was because no "sanctioned religious exemption from any organized religion" existed and in fact, religions were "encouraging the opposite." 

Interestingly, the Gorsuch dissent explains that his views on a religious exemption aren't absolute. Instead, he explains that "a State might argue, for example, that it has a compelling interest in achieving herd immunity against certain diseases in a population. It might further contend the most narrowly tailored means to achieve that interest is to restrict vaccine exemptions to a particular number divided in a nondiscriminatory manner between medical and religious objectors. With sufficient evidence to support claims like these, the State might prevail." As such, his main issue is allowing for medical related exemptions and not religious exemptions violates The Free Exercise Clause. 

Regardless, the vaccine mandate may be enforced in the healthcare setting moving forward throughout NYS.  As background, the Second Circuit had previously denied the injunction and also permitted the mandate to be enforced.


Friday, October 29, 2021

Texas Abortion Law is Before the US Supreme Court on Monday - Are Your Ready?

Before the US Supreme Court on Monday, November 1, 2021, is Texas's abortion law, which seems to be about stopping abortions by changing the standard from viability, as is the current law under Roe v. Wade, to 6 weeks into pregnancy, but it's about so much more and you should really care. 

The law deputizes Texans to police their neighbors in a way that should ring out fears that we are transitioning into a dystopian society like a real-world Handmaid's Tale. 

Imagine for a second, if you can, that this law has nothing to do with abortions (regardless, if you are pro-life or pro-choice) and ask yourself, how do you feel about your neighbors receiving $10,000 for catching you speeding on the highway, or shoplifting, or putting an extension on your house without a permit. In Texas, if you catch someone violating the 6-week abortion rule, you can get paid $10,000. Crazy. 

Ironically, Texas's law has survived scrutiny under Roe v. Wade because of this unique enforcement scheme. In fact, the US Supreme Court previously denied an application for injunctive relief, on September 1, 2021, by explaining that there was no "private-citizen respondent before us [who had] intention to enforce the law" [they sued the government rather than a citizen enforcing the law to get $10,000] and therefore, the Court ruled that there was a procedural hurdle preventing it from making "any conclusion about the constitutionality of Texas's law" when it comes to abortions. 

Now, on November 1, 2021, the Court will hear arguments as to whether the "United States [may] bring suit in federal court and obtain injunctive or declaratory relief against the State, state court judges, state court clerks, other state officials, or all private parties to prohibit SB. 8 from being enforced." If they can stop a judge from granting the $10,000, they stop the law. 

Tuesday, October 05, 2021

SALT Tax Deduction Limit is Valid per Second Circuit Court of Appeals

Back in 2017, the Tax Cuts and Jobs Act capped SALT deductions at $10,000. 

To remind you, SALT deductions permit "taxpayers to deduct from their taxable income all the money they paid in state and local income and property taxes." As a result, it saves residents in high tax states from having to pay a lot of money to the federal government because they already paid a lot of tax to their state. States like New York, Connecticut, New Jersey, and Maryland have really high state and local taxes and therefore, residents of these states were hurt the most when Congress capped SALT deduction at $10,000. 

To fight for their citizens and for their sovereignty, these four states sued the federal government "asserting that Congress's new cap on the SALT deduction either is unconstitutional on its face of unconstitutionally coerces them to abandon their preferred fiscal policies." 

Stated otherwise, the states argued "that the SALT deduction cap violates both Article I, Section 8 and the Tenth Amendment [and the Sixteenth Amendment] because it coerces them to lower taxes or cut spending."

The states lost in New York v. Yellen and the $10,000 cap remains. 

According to the Second Circuit, the states failed to demonstrate "how the 2017 cap on the deduction unconstitutionally undermines their state sovereign authority over fiscal matters or their ability to raise revenue." 

Yet, it seems pretty intuitive, no?

Do you think this should go to the Supreme Court? 

If not, will a Democratic Congress, led by a Senator from New York, act to reinstitute the full SALT Tax Deduction, which has been the law of the land since 1913 when the 16th Amendment was ratified and Congress first became empowered to "lay and collect taxes on incomes, from whatever source derived without apportionment among the several states"? 

Thursday, September 30, 2021

NYC School Employees Go to Justice Sotomayor of the Supreme Court for Relief - Should They Get It?

In their best written papers to date, NYC school employees argued to the Supreme Court that they need a stay of the October 1, 2021 deadline to get vaccinated. 

They argue that the vaccination order prevents them from lawfully pursuing their occupation, which is a fundamental Due Process right. They claim that their alternative options of private school teaching, adult or continuing education teaching, or private tutoring are not pursuing their occupations completely. Nonetheless, they fail to address whether taking "their certifications and seek[ing] employment in any other public school system... in the State," would be pursuing their occupations completely, as NYC had argued before the Second Circuit. 

Regardless, the issue of whether the employees can still pursue their profession is where the case is likely to be decided. In their opposition before the Second Circuit, the City had argued and emphasized that Due Process protection is only afforded if "a plaintiff is completely prohibited from engaging in his or her chosen profession." However, the school employees now argue that "a violation of one’s fundamental right to pursue an occupation exists and gives rise to a due process claim where there is less than a complete inability to practice one’s profession." Which one is it? Who is right? 

What do you think the law should be? 

The other argument advanced by the school employees is that the vaccination order should have given them an option to opt out of vaccination for weekly testing because school staff should be treated equally to firefighters and police officers who have that option. While this seems like a good argument in an initial read of the papers, the school employees' argument that firefighters and police officers present a greater risk to spread COVID because they have contact with the public as opposed to school children who have less severe COVID fails the smell test when it's considered that adults can be vaccinated and those under 12 years of age cannot. However, we will see. 

Friday, August 27, 2021

Evictions Evictions - Get Your Evictions - US Supreme Court Opens the Floodgates

On August 27, 2021, the US Supreme Court opened the floodgates for evictions throughout the United States in the case of Alabama Association of Realtors v. DHHS

Landlords, have you called your attorney yet to start the eviction process? 

Investors, are you ready for the housing market to swing because of a flood of inventory? 

Tenants, have you started to make moving arrangements and tried to settle your arrears for less money? 

Wow, can you feel that tsunami coming? 

Make no mistake, this is the first domino to fall in our housing market's shift into a buyer's market on fundamentals. Are you ready? 

For the legal context of what transpired, the CDC had issued a moratorium on evictions in counties with substantial or high levels of COVID-19, which we explained here. That moratorium was thrown-out by the District Court for the District of Columbia, but that Court knew that the issue would get to the Supreme Court so they stayed (a/k/a, paused) the effectiveness of their Order overturning the moratorium until the Supreme Court could weigh-in, which we explained here. Now, the Supreme Court has weighed-in and the eviction moratorium is ineffective, unlawful, and unenforceable. 

To be clear, the Supreme Court did not weigh-in on the policy of an eviction moratorium. They didn't rule as to whether it is a good idea, good policy, or needed for our country. Instead, the Supreme Court ruled "that the statute on which the CDC relies does not grant it the authority it claims." In plain language, the eviction moratorium was thrown-out because the CDC's basis for imposing the moratorium does not afford it that power.

You see, Executive Branch agencies, like the CDC, can't do whatever they want. They need power before they act, which comes from Congress. Without that power, they can't do anything. They can't issue regulations, rules, or directives. This power, called an enabling statute, was missing from the eviction moratorium, according to the Supreme Court, which explained that the power relied upon by the CDC was meant "to implement measures like fumigation and pest extermination," not eviction moratoriums. According to the Supreme Court, "our system does not permit agencies to act unlawfully even in pursuit of desirable ends." 

Knowing that, you should be wondering if Congress will act and impose its own eviction moratorium? 

For landlords, investors, and tenants that is a really important question given that the Supreme Court acknowledged, in its decision, that "[a]t least 80% of the country, including between 6 and 17 million tenants at risk of eviction, [fell] within the moratorium." 

However, we doubt that Congress will issue another moratorium because it can't get anything done with its division in the Senate. Further, the Supreme Court reminded Congress, in its decision, that a federal "moratorium intrudes into an area that is the particular domain of state law: the landlord-tenant relationship." 

As a result, evictions are about to flood the court systems. Are you ready for the eviction tsunami? 

Friday, August 13, 2021

U.S. Supreme Court Allows NYS Landlords to Resume Evictions

The U.S. Supreme Court blocked part of New York’s eviction moratorium, specifically Part A of the COVID-19 Emergency Eviction and Foreclosure Protection Act of 2020 (CEEFPA), which imposed a moratorium on evictions for tenants who provide their landlord with a signed hardship declaration. What this means is that New York State landlords can now resume their eviction matters.

As a reminder, CEEFPA allowed tenants to simply sign and provide a Hardship Declaration to their landlords to halt any eviction proceeding against them. The Supreme Court found that this self-certification by the tenant and CEEFPA’s limited avenue for a landlord to challenge the tenant’s declaration “violates the Court’s longstanding teaching that ordinarily ‘no man can be a judge in his own case.’”

The Supreme Court’s decision is a big win for landlords and it came at a time when everyone is wondering whether CEEFPA’s eviction moratorium, which was set to expire on August 31, 2021, would be extended. However, New York landlord-tenant courts and county sheriffs have yet to implement rules which reflect the Supreme Court’s decision. We’ll keep you posted.

Although the New York eviction moratorium is now essentially nonexistent, it should be noted that the CDC moratorium is still in place until October 3, 2021. However, with the CDC moratorium basically having the same framework as CEEFPA, it's possible that it will also come under the same scrutiny as CEEFPA and also be struck down. What do you think?

Tuesday, May 26, 2020

Courts to Begin Limited In-Person Operations on Long Island

On May 18, 2020 the New York State Court System resumed limited in-person operations in upstate counties. Today Chief Judge Janet DiFiore announced that in-person operations will expand to Dutchess, Orange, Putnam, Rockland and Westchester Counties on May 27, Ulster and Sullivan Counties on May 28, and Nassau and Suffolk County on May 29. 

These re-openings are consistent with Phase 1 re-opening guidelines set by the Governor's Office and can be expanded as Phase 2 and further guidelines are met. 

Phase 1 operations permit judges, chambers staff, and some other limited personnel to return to their physical offices while operating in a manner consistent with current health and social distancing guidelines. Public in-person appearances will be limited to filings of emergency applications and the adjudication of matters that were previously identified as essential. In-person appearances for non-emergency and non-essential matters will be deferred to the courts' expanded virtual capabilities. 

Our court system is more capable than ever. Virtual conferences and the clearing of pending motions has put the courts in a position to handle the influx of new cases that will be filed now that non-essential matters can be commenced and in-person operations are returning. Chief Judge DiFiore has signaled that the expanded use of virtual court operations will be maintained by the courts for the foreseeable future as courthouses look to push as many public visitors as possible away from its doors and onto their computers screens. 

The Court System's official press release can be found HERE. The transcript of Judge DiFiore's latest message can be found HERE. A summary of the current state of online and in-person operations can be found HERE.

Wednesday, May 20, 2020

New York Courts Opens Electronic Filing of New Non-Essential Matters

Beginning May 25, 2020, litigants will finally be able to commence new actions. The acceptance of electronic filing for new non-essential matters represents the clearing of the the penultimate hurdle for the court system's remote operations. In effect, trials and hearings are the only civil court operations still on hold. Judge Marks May 20, 2020 memorandum can be found, HERE

It is important to remember that this memorandum does not supersede the Governor's executive orders which restrict certain actions, such as residential evictions, which may still be barred. 

Friday, May 15, 2020

Nassau County Tax Map Certification Letter Fees Deemed Unconstitutional

Nassau County Supreme Court Justice Jeffrey Brown struck down Nassau County’s $355 fee to verify a property’s section, block and lot due to it being unlawful and unconstitutional.

In Falk v. Nassau County, the Plaintiff alleged that Nassau County excessive fees for tax map certification letters (TMCLs) as issued pursuant to Nassau County Administrative Code § 6-33.0. These TMCLs are issued by the Nassau County Department of Assessments and must be filed with real property documents when submitted to the Nassau County Clerk for recording. Plaintiff alleged that the fees are excessive and not reasonably necessary to maintain the County’s real property registry and such fees are taxes as their purpose really is for general revenue. In this regard, the Plaintiff sought a declaratory judgment deeming Administrative Code § 6-33.0 unconstitutional because it is excessive and an unlawful tax.

Among other reasons, the court granted the Plaintiff’s motion for summary judgment and found the TMCL fees unconstitutional as it was established that its purpose was for general revenue purposes only and that the fee itself is “indisputably disproportionate to the cost associated with its issuance.” Further, the Court found that they are excessive and not tied to the County’s responsibility in maintaining its property registry nor were such fees assessed or estimated on the basis of studies or statistics.

Nassau County is expected to file an appeal to Judge Brown’s decision. Stay tuned.

Friday, May 08, 2020

Governor Cuomo Tolls Statute of Limitations to June 6, 2020

Governor Cuomo has signed a new executive order extending many of the previous actions taken in his previous orders. Included among these extensions is the tolling of statute of limitations until June 6, 2020. This is necessary, of course, because litigants are still prohibited from filing new non-essential actions. Litigators should be aware that this does not toll all deadlines in pending and ongoing actions. Notices of appeal, motion deadlines, time to answer and appear, and discovery deadlines are all up and running with the courts' expanded remote operations. Additionally, statute of limitations on federal claims are not affected as federal courts remain fully operational. A copy of the executive order, No. 202.28, can be found HERE

Stay tuned to our blog for big changes to the current commercial and residential eviction moratorium. 

Thursday, April 09, 2020

New York State Courts Release Reopening Details

As expected, Chief Administrative Judge Lawrence K. Marks has issued a new administrative order detailing the first stage of court operations for nonessential matters. A full copy of the order can be read HERE.

      1. Judges will commit themselves to deciding fully submitted motions in pending cases. 
      2. Judges will examine their dockets to find matters through which video conferencing can be helpful in resolving the matter. Parties may request a similar conference, where appropriate.
      3. Judges may conduct discovery and other ad hoc conferences to resolve disputes which should not require the filing of motion papers.

The Order also contains an important clarification and limitation: litigants may NOT file any new nonessential matters, and parties may NOT file any additional (new) papers in any pending nonessential matters.

This means no new motions, no new answers, no motion opposition papers, etc. Previous orders tolling deadlines in those matters still control. Currently deadlines are tolled by executive order of Governor Cuomo through May 7, 2020

Expect expansion of the courts' capabilities and filings in the near future after successful implementation of this phase.

Reminder that federal courts are still open and capable for accepting new matters and Lieb at Law attorneys are still litigating where court intervention is not needed. 

Tuesday, April 07, 2020

New York State Courts Are Reopening for Non-Essential Matters

New York State courts are reopening.

On April 7, 2020 Judge Marks issued a memorandum to all trial court justices and judges outlining his plan for reopening the trial courts to non-essential matters beginning on Monday April 13, 2020. A full copy of the memorandum can be found HERE.

Judge Marks' April 7, 2020 memorandum states:

Going forward, the existing prohibition on the filing of new non-essential matters will continue. However, although our planning is ongoing, starting next Monday, April 13, we will take certain preliminary steps to open up access - remote access - to the courts for non-essential pending cases. This means that judges should review their case inventories to identify cases in which court conferences can be helpful in advancing the progress of the case, including achieving a resolution of the case. Judges can also schedule conferences at the request of the attorneys, and can be available during normal court hours to address discovery disputes and other ad hoc concerns. The conferences will need to be conducted remotely, by Skype or by telephone. Judges' personal staff will be able to assist judges remotely, as needed.

New York State courts have been closed to non-essential matters since March 22, 2020 when Chief Administrative Judge Lawrence K. Marks issued Administrative Order 78/20, which we blogged about HERE.

What will change on Monday, April 13?
Immediately, it appears that the courts are finding success in their remote operations for essential matters are looking to expand those capabilities to non-essential matters which make up the bulk of the caseload in the trial courts. Not only does the memorandum permit judges to conduct remote conferences on cases that are already pending before them, it encourages them to do so. Judges can schedule conferences and parties can request them as well.

The memorandum advises judges to examine their calendars, prioritize cases that will benefit from conferences, decide pending motions to clear backlogs, and to reduce their dockets while there are no new filings.

The big takeaway is that judges' chambers will be staffed and operational - conducting conferences and resolving motions to help clear their dockets. Your pending lawsuits are no longer frozen and progress will be made.

What don't we know?
There are some key limitations in this memorandum that cannot be overlooked:

Going forward, the existing prohibition on the filing of new non-essential matters will continue.

It is clear that as of now, you cannot commence a new action in NYS courts (you can commence a new action in the Federal courts). That means no new lawsuits in NYS courts. It is not clear, however, if that means you can file new papers on pending actions. For instance, it is unclear if you are permitted to file a new motion on a pending action, or even an answer to a complaint that was already filed and served. For now, existing administrative and executive orders tolling time limitations still control.

What to expect going forward.
Judge Marks realizes that a total freeze on court operations is unnecessary. While in-person appearances in a judge's courtroom or chambers are sometimes necessary for a civil matter in the Supreme Court, it is rarely mandatory. Remote conferences can handle most preliminary conferences, discovery disputes, and status conferences. In-person appearances are unnecessary to resolve most motions, and oral argument can be conducted over Skype, Zoom, etc. Civil parts in the Supreme Court can operate at nearly 100% capacity without opening their doors to the bar. 

I expect Judge Marks to reopen the civil parts of the Supreme Court in stages, gradually increasing their capacity until everything except trials can move forward while the rest of the country remains closed due to COVID-19. 

Courts that heavily rely upon in-person appearances, such as landlord-tenant court and the housing court, will be slower to reopen, but those actions are stayed anyway so there is less emphasis on figuring out remote operations for those parts. 

Look for continuing guidance from Judge Marks and local administrative Judges later this week and early next week.

Can any of this become permanent?
It is no secret that it is exceptionally difficult to force large institutions to adopt opportunities presented by advances in technology. For example, even though we have electronic filing, attorneys still need to appear in person to file physical motion papers in some courts that are too stubborn to change their old procedures. Even though some states permit telephone conferences, some courts in New York force attorneys to appear in their courtroom just to tell the judge that they are on schedule with their discovery and don't need any help from the court. That is a waste of time, money, and the courts' limited resources.

Perhaps the changes forced by COVID-19 will open the courts' eyes to the increased efficiency and productivity that technology can bring to our stubborn industry. Listen to our podcast about the future of the courts HERE - Court System is Archaic | Modernization Needed ASAP.

Tuesday, October 08, 2019

Can Employers Discriminate Against Employees Based on Their Sexual Orientation or Status as Transgender? The Supreme Court to Weigh-In.

The Supreme Court of the United States is hearing oral arguments on three high profile cases today which will have a significant impact on LGBTQ rights in the workplace.

In the first two cases, Bostock v. Clayton County, Georgia and Altitude Express, Inc.v. Zarda, the justices will determine whether Federal law prohibits employment discrimination based on sexual orientation. (Federal law generally prohibits discrimination based on "sex"). In the third case, R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission, the justices will determine whether employment discrimination against transgender people violates Federal law.

The decisions on both of these issues - which will likely be released in early 2020 - will be of great interest to both employers and employees.