BSCR Firm News/Blogs Feed

Kyle Roehler to Moderate on Marijuana Implications at ALFA Hospitality & Retail Seminar

20 May 2024

On May 30, Baker Sterchi Member Kyle Roehler will moderate a session titled “Recreational and Medical Marijuana at a Tipping Point—An Examination of its Implications,” at the ALFA International Hospitality & Retail Practice Group Seminar in Los Cabos, Mexico.

The session will examine some of the recent legislation and latest developments in legalized marijuana, as well as Gram Shop Laws, THC beverages, lessons learned from early state adopters and liability, insurance and employment implications for not only businesses whose principal business is marijuana, but also the retail and hospitality industries.

Roehler defends corporations, insurance companies and trucking companies in state and federal courts throughout the Midwest and the nation. His practice focuses on catastrophic personal injury defense, transportation, and insurance coverage and extra-contractual liability. Roehler frequently speaks at national conferences on topics related to personal injury, trucking and bad faith litigation. He earned his law degree from the University of Kansas School of Law and is admitted to practice in Missouri and Kansas.

Baker Sterchi is the Kansas City, Missouri and Overland Park, Kansas, member firm of ALFA International, a premier global legal network of 140 independent law firms. The network provides educational programs across various practice areas for attorneys and clients associated with its member firms.

"Unpacking Noah's Ark: Lessons in Unfair Labor Practices and Good-Faith Negotiations"

20 May 2024

ABSTRACT: In Noah’s Ark Processors, LLC, the NLRB ruled that the company engaged in unfair labor practices by failing to negotiate in good faith, refusing to compromise, withholding relevant bargaining information, and prematurely declaring an impasse during negotiations with the United Food and Commercial Workers’ Union. The NLRB also found that the company had unlawfully threatened and terminated ten workers for participating in an unauthorized work stoppage. As a result, the NLRB called for severe remedies, which were upheld by the Eighth Circuit Court of Appeals.

The dispute in Noah’s Ark Processors arose following the expiration of the previous collective-bargaining agreement between the company and the UFCW. Negotiations ensued, but the company’s representative, an administrative assistant lacking decision-making authority, hindered progress. Consequently, the Union filed charges with the NLRB, prompting a court-issued injunction compelling Noah’s Ark to resume negotiations.

However, throughout the resumption of negotiations, Noah’s Ark repeatedly presented regressive offers that deviated from previous agreements and sought to roll back established benefits for employees. These offers included proposals to eliminate binding arbitration for labor grievances, subcontract existing operations, cut vacation days, and limit holiday pay. Despite minor concessions on certain issues, the company remained steadfast in its refusal to compromise on critical matters, such as working hours and arbitration of grievances. After only two months of negotiations, Noah’s Ark declared another impasse and implemented their proposals.

The Union reacted by filing another complaint. An administrative-law judge found that Noah’s Ark's had failed to negotiate in good faith and prematurely declared an impasse. In addition to issuing another bargaining order to keep negotiating with the union, the ALJ ordered Noah’s Ark to provide backpay to the ten terminated employees, reimburse the union for bargaining expenses, and required its CEO to read a remedial notice at an all-employee meeting. The Board adopted the ALJ’s remedies and imposed additional remedies including ordering Noah’s Ark to mail a copy of the remedial notice to every employee, post the notice in its plant, and allow NLRB representatives to inspect the facility for up to a year.

On appeal, the Eighth Circuit rejected the company’s argument that the Board’s extraordinary remedies requiring reimbursement of bargaining expenses and reading of a remedial notice by the CEO were unjustified. Concluding that “the remedies in question are not beyond those that have been imposed in other extreme cases” – and additionally noting that Noah’s Ark had failed to properly preserve this issue for appeal by raising it before the Board – the Court granted enforcement of the Board’s order in its entirety.

The NLRB’s General Counsel has urged its regional offices to pursue the “full panoply” of remedies for employer unfair labor practices, and the Noah’s Ark case makes it clear that especially in cases involving egregious facts, that approach will be followed. While the NLRB and Eighth Circuit decisions break no new ground, they serve as a reminder that the duty to bargain in good faith lies at the core of the National Labor Relations Act, and that bad-faith, “take it or leave it” collective bargaining will not pass legal muster.

Defense Succeeds in Reducing Damages in Rear-End Collision Trial

17 May 2024

On April 24, 2024, one of the newest members of Baker Sterchi’s team, a first-year Associate, successfully defended a rear-end collision case in the Small Claims Division of the Circuit Court of Jackson County, Missouri.

The incident occurred when the client was driving the wrong way on a one-way street and stopped in front of the plaintiff's car, causing plaintiff to stop as well. Subsequently, another vehicle rear-ended the plaintiff’s car, but that defendant was dismissed from the case due to lack of service.

The focus of the defense was on the determination damages to plaintiff’s vehicle. Our Baker Sterchi team member successfully limited the plaintiff’s damage claim to well below the amount requested. The court concluded that the total damages should be based on the lower estimate provided by the defense, which was accepted as the most reliable evidence during the trial.

Update: High Court Finds CFPB Funding Structure Constitutional Once and For All

17 May 2024

ABSTRACT: Yesterday the U.S. Supreme Court overturned the 2022 Fifth Circuit Opinion holding the CFPB’s self-funding structure unconstitutional, providing clarity to courts and enforcement agencies across the nation about the CFPB’s authority for rulemaking and enforcement.

The U.S. Supreme Court issued a 7-2 Opinion yesterday finding the funding structure of the Consumer Financial Protection Bureau (“CFPB”) constitutional. In so doing, the Supreme Court overturned the Fifth Circuit’s holding finding the opposite. The case was initiated and made its way through the appellate courts on behalf of Community Financial Services of America (“CSFA”), a group representing the interests of payday lenders.

The CFPB Payday Lending Rule that started this years-long legal battle is found at 12 S.F.R. § 1041.8 and prohibits what the CFPB described as the “unfair and abusive” practice by lenders of initiating subsequent payment transfers from consumer bank accounts after two consecutive failed attempts, in an effort to prevent excessive overdraft fees. Baker Sterchi previously discussed the Fifth Circuit’s holding and subsequent legal complications in prior posts.

The challenge to the CFPB’s funding structure centered on the powers granted to the CFPB under Dodd-Frank, which allows it to operate with funds from the Federal Reserve as opposed to funding approved by Congress.

The Supreme Court rejected CSFA’s argument that the funding structure violates the Appropriations Clause under the U.S. Constitution. Justice Thomas penned, "Under the Appropriations Clause, an appropriation is simply a law that authorizes expenditures from a specified source of public money for designated purposes. The statute that provides the bureau's funding meets these requirements. We therefore conclude that the bureau's funding mechanism does not violate the Appropriations Clause."

Justices Alito and Gorsuch dissented, with Alito warning that the majority opinion “upholds a novel statutory scheme under which the powerful Consumer Financial Protection Bureau may bankroll its own agenda without any congressional control or oversight."

The Supreme Court’s Opinion will impact numerous cases and enforcement actions that have been in limbo across the country as the Court’s decision was awaited. Much industry discussion has been centered around an assumption that the Fifth Circuit would be upheld and the question of how far the Supreme Court would reach in undermining previous CFPB enforcement actions. With the Supreme Court’s decision reversing the Fifth Circuit, those discussions are put to rest, at least until another constitutional challenge to the CFPB is raised.

Scott Kreamer Elevated to President-Elect of Lawyers for Civil Justice

16 May 2024

Scott Kreamer, Managing Member of Baker Sterchi, was elevated to President-Elect of Lawyers for Civil Justice (LCJ) during the recent Spring Membership Meeting held in Washington, D.C.

LCJ, a coalition of defense bar organizations, law firms and corporations, focuses on initiatives such as enhancing multi-district litigation reforms, establishing expert evidence standards, allocating discovery costs effectively, modernizing privilege log requirements and safeguarding the right to file documents under seal.

Recently, LCJ advocated for the amendment of Federal Rule of Evidence 702, governing expert testimony in federal courts. The resulting amendment, effective December 1, 2023, introduced significant changes aimed at enhancing the standards for the admissibility of expert testimony. Specifically, the amendment emphasizes that expert testimony may only be admitted if the proponent demonstrates to the court that the proffered testimony is more likely than not to meet the admissibility requirements set forth in the rule.

Kreamer’s practice focuses on commercial, construction, financial services, insurance and product liability matters. In addition to his role with the LCJ, he is an active member of the Federation of Defense and Corporate Counsel (FDCC) and DRI, having previously served as chairman of the board and president for FDCC, and as a member of the Board of Directors for DRI. He is also a Fellow in the American College of Trial Lawyers, having tried more than 30 cases in state and federal courts.

Baker Sterchi Welcomes Jennie Simons in St. Louis

16 May 2024

Baker Sterchi welcomes Jennie Simons as a senior attorney in the firm’s St. Louis office. Her practice encompasses various practice areas, including insurance coverage, personal injury, premises liability and product liability. Simons has represented both individuals and corporate clients in over 50 jury trials.

Simons obtained her law degree from Florida Coastal School of Law and holds an undergraduate degree from the University of Kansas. She is licensed to practice law in Missouri, Illinois and Florida.

Alena Johnston Joins Baker Sterchi in St. Louis

15 May 2024

Alena Johnston has joined Baker Sterchi’s St. Louis office as an associate, with a practice focused on premises liability, personal injury and insurance coverage. While in law school, she served on the American Bar Association Journal of Labor and Employment Law. Johnston also participated in the Saint Louis University Criminal Defense Clinic, gaining valuable experience representing clients in both state and federal courts.

Johnston earned her law degree from Saint Louis University School of Law and holds an undergraduate degree from Saint Louis University. She is admitted to practice in Missouri.

Baker Sterchi Sponsors NAWIC Construction Industry Celebration

15 May 2024

Baker Sterchi Cowden & Rice proudly sponsored the 2024 Construction Industry Celebration held at CPKC Stadium on May 14. CPKC Stadium, located in Kansas City, Missouri, holds the unique distinction as the first stadium in the world purpose-built for a professional women’s sports team.

Hosted by the Greater Kansas City Chapter of the National Association of Women in Construction (NAWIC), the Construction Industry Celebration is an annual event that honors individuals and organizations for their noteworthy achievements and impact in the construction sector.

This year's event included a discussion on unconscious bias, facilitated by Michelle Akers, a distinguished advocate for equality and equal pay. Akers, widely recognized as one of the greatest female soccer players in history, was a member of the inaugural women’s national team FIFA and was named FIFA Female Player of the Century.

Representing Baker Sterchi at the event were Members Megan Sterchi-Lammert and Megan Stumph-Turner. Since its formation in 1965, NAWIC has provided educational, leadership and community service opportunities for its members throughout the community.

Baker Sterchi is honored to support initiatives like the Construction Industry Celebration that promote diversity, recognition, and excellence within the construction industry and beyond.

Workplace Religious Discrimination Claims under the Missouri Human Rights Act Analyzed in Shiffman v. Kansas City Royals Baseball Club

15 May 2024

ABSTRACT: The Western District Missouri Court of Appeals in Shiffman v. Kansas City Royals Baseball Club, LLC recently reviewed a claim of religious discrimination that failed at the trial court level. The Court analyzed the applicable standards for an employee-plaintiff offering direct evidence versus indirect evidence of religious discrimination. As there was insufficient direct or indirect evidence to support a discrimination claim, the court affirmed the trial court’s granting of the Royals’ motion for summary judgment.

The Western District Missouri Court of Appeals recently reviewed the essential elements of a submissible claim of religious discrimination under the Missouri Human Rights Act. In Shiffman v. Kansas City Royals Baseball Club, LLC, a terminated employee Steve Shiffman asserted claims against his former employer, the Kansas City Royals, for religious discrimination, age discrimination, and related retaliation, and hostile work environment.

Shiffman was a ten-year employee with the Royals holding the title of Senior Director of Ticket Sales and Services at the Kauffman Stadium, reporting to the Vice President of Marketing and Business Development. In this position, Shiffman oversaw the sale of individual, group, premium tickets, and suites. His direct report had previously been responsible for the sales process and related staff for ticket sales. Over time, Shiffman’s junior employee became responsible for the daily operations of the Ticket Sales and Services Department.

After the Royals were sold in November 2019, its new senior management team undertook a review of the Royals’ operations, including the Ticket Sales and Services Department. After that review, and a shift in duties between Shiffman’s junior employee and Shiffman’s manager, the Royals’ management determined that his position as Senior Director should be eliminated as redundant, and Shiffman was terminated shortly before his sixtieth birthday. The Royals did not replace Shiffman, nor did they promote his junior employee.

In his petition, Shiffman advanced four claims: religious discrimination, age discrimination, retaliation, and a hostile work environment. In support of his claims, Shiffman referenced comments made by a Royals’ senior manager, in the presence of other employees, which he alleged reflected negatively on his faith.

Responding to the Royals’ Motion for Summary Judgment, he characterized the manager’s statement as “referencing an issue with getting the Jewish community center’s consent to use their logo on the Royals’ website.” Shiffman also claimed that he reported the comment to the human resources department but did not have an opportunity to place a written complaint prior to his termination.

In a more conclusory manner, Shiffman had claimed in his petition that he was subjected to a hostile work environment based on harassment and discrimination of, among other things, improper discipline and attacks on his character. Shiffman alleged that the harassment was driven by his age, religion, and prior complaints, all of which were known, or should have been known, by the Royals’ management. The Royals moved for summary judgment, which the trial court granted.

On appeal, Shiffman argued that, as to his religious discrimination claim, the trial court record included sufficient evidence to allow a jury to find that his termination was motivated by his religion. In its ruling, the Court of Appeals noted the different analyses that apply to claims involving direct evidence of discrimination, and those involving only circumstantial evidence. A prima facie case of religious discrimination based on direct evidence requires an adverse employment action, a showing that the motivating factor was religion, and that the employee suffered damage. But in his reply to the Royals’ motion for summary judgment, Shiffman admitted that he relied exclusively on circumstantial evidence to support his claim. As there was no direct evidence of religious discrimination, the trial court was then required to apply the familiar burden-shifting framework of McDonnell Douglas v. Green, developed decades ago with respect to federal-law discrimination claims.

Under that analysis, the Western District found that three of the four McDonnell Douglas requirements were met. First, the plaintiff, who is Jewish, is a member of a protected class due to his religious affiliation or beliefs. Second, he had a satisfactory work record and therefore had met the employer’s reasonable expectations. Third, the employee experienced an adverse employment action (his termination when his job was eliminated). As to the fourth requirement, however, the Court agreed with the trial court that the circumstances did not support an inference of religious discrimination. Consequently, the burden of production did not shift to the Royals to rebut a presumption of discrimination by producing evidence that Shiffman’s job elimination and layoff were based on legitimate and non-discriminatory reasons.

The Court noted that even if the burden had shifted to the Royals, the Royals articulated legitimate, non-discriminatory reasons for their decision (elimination of a redundant position), and Shiffman failed to identify any other similarly situated employees outside of his protected class treated more favorably or differently than himself. Furthermore, Shiffman only identified one offensive comment made by a single co-worker related to his religion. The Western District cited a federal court opinion for the proposition that a “single, isolated, offensive comment is insufficient to support an inference of religious discrimination.” In fact, the Court found nothing in the record demonstrating that the co-worker’s comment had any connection with his termination.

Again, even if the McDonnell Douglas framework were applicable, the Western District noted that the burden would have reverted to Shiffman after the Royals rebutted the presumption of discrimination. Shiffman had failed, however, to advance any credible evidence exposing the Royals’ actions in the termination decision as a mere pretext for intentional discrimination. As such, the appellate court found that the trial court properly granted the Royals’ Motion for Judgment as it related to religious discrimination.

Successful Missouri employers are well acquainted with both the MRHA and federal law prohibitions against workplace discrimination. The Shiffman opinion serves as a reminder that analytically, principles of federal anti-discrimination law may be applied to MHRA claims. In this case, the Court properly observed that one isolated offensive comment generally cannot support an employment law claim. But a prudent employer that becomes aware of an inappropriate comment should consider the need for corrective action, to prevent further misconduct that may be actionable. Coordination with employment law counsel can be helpful in mitigating the potential risks of a workplace claim of religious or any other form of discrimination.

Defense Verdict for Plastic Surgeon and Hospital Affiliates in Malpractice Case

14 May 2024

Baker Sterchi obtained a significant defense verdict for a plastic surgeon and hospital affiliates in a medical malpractice case tried over six days in the Circuit Court of St. Louis County, in which plaintiff alleged the surgeon caused a post-surgical infection, a rotator cuff injury and a long thoracic nerve injury during a series of breast surgeries.

According to plaintiff, after a bilateral mastectomy and breast reconstruction in 2018, she developed a pseudomonas bacterial infection, requiring multiple follow-up surgeries, including implant exchanges and a perforator flap surgery. She claimed that the surgeon placed new implants into an infected breast pocket without diagnosing or treating the infection, leading to serious complications. Additionally, plaintiff alleged that incorrect patient positioning during surgery caused a partial tear in her right rotator cuff and that surgical dissection during the flap surgery damaged her long thoracic nerve, affecting her serratus anterior muscle.

In response, the Baker Sterchi trial team demonstrated that plaintiff's complications were known risks associated with mastectomy and reconstruction, rather than the result of medical negligence. The team acknowledged that plaintiff experienced superficial cellulitis but maintained that a deep infection in the breast pocket did not occur until after her treatment with the surgeon ended. They also refuted claims that patient positioning during surgery led to the rotator cuff injury or that the long thoracic nerve was injured.

During closing arguments, plaintiff's counsel asked the jury to award $3,140,000 in damages for both economic and noneconomic losses. However, after about 2.5 hours of deliberation, the jury returned a defense verdict on all counts.