BSCR Firm News/Blogs Feedhttps://www.bscr-law.com/?t=39&format=xml&directive=0&stylesheet=rss&records=10en-us16 Jun 2019 00:00:00 -0800firmwisehttps://blogs.law.harvard.edu/tech/rssJohn Mahon, Jr. Admitted to Association of Defense Trial Attorneyshttps://www.bscr-law.com/?t=40&an=92341&format=xml&p=544813 Jun 2019Firm News<p>Baker Sterchi Cowden &amp; Rice Member John Mahon Jr., has been admitted to the Association of Defense Trial Attorneys (ADTA) as one of only thirteen Missouri members.</p> <p>&ldquo;I welcome this fantastic and valuable opportunity to connect with top-flight defense trial attorneys across the country and abroad,&rdquo; said Mahon.</p> <p>Established nearly 80 years ago, the ADTA is comprised of civil defense trial attorneys in the various states of the United States, the District of Columbia, Puerto Rico, Canada and France and The United Kingdom of Great Britain and Northern Ireland and the Republic of Ireland.</p> <p>One of the major defense trial attorney organizations in the legal profession, the ADTA&rsquo;s stated mission is to work toward improving the practices of their members through collegial relationships, educational programs, and business referral opportunities while maintaining the highest standards of professionalism and ethics.&nbsp;</p> <p>Mahon is a trial lawyer in the firm&rsquo;s St. Louis office, whose practice is primarily concentrated on defending medical negligence, product liability, and other personal injury lawsuits, as well as insurance coverage and litigation matters. He is active in local and national bar associations and regularly lectures to nursing students on legal issues.</p>https://www.bscr-law.com?t=39&format=xml&directive=0&stylesheet=rss&records=10Nathan Leming Becomes Member of Preeminent Invitation-Only Defense Associationhttps://www.bscr-law.com/?t=40&an=92318&format=xml&p=544812 Jun 2019Firm News<p>Baker Sterchi Cowden &amp; Rice Member Nathan Leming has become a member of the International Association of Defense Counsel (IADC).</p> <p>Founded in 1920, the IADC is a preeminent invitation-only global legal organization for attorneys of high professional standing who represent corporate and insurance interests. Comprised of approximately 2500 corporate and defense attorneys and executives, membership includes individuals from a majority of the companies listed in the FORTUNE 500.</p> <p>IADC&rsquo;s stated core purpose is to enhance the development of skills, professionalism, and camaraderie to serve and benefit the members, their clients, as well as the civil justice system, the legal profession and society in general.&nbsp; It is a founding member of both the Defense Research Institute (DRI) and Lawyers for Civil Justice (LCJ).</p> <p>The IADC employs a rigorous membership vetting process.&nbsp; Outside counsel nominations require one IADC member to nominate an individual and two IADC members to sponsor an individual. The Membership Committee reviews nominations and seeks input from IADC members in the nominee&rsquo;s state or region, after which the committee presents nominations to the Board of Directors for approval. The board offers approved nominees the opportunity to join.</p> <p>&ldquo;Being invited to join such a prestigious defense association is an honor,&rdquo; said Leming.&nbsp; &ldquo;I look forward to building friendships and business relationship with my fellow members.&rdquo;</p> <p>Leming, based in the firm&rsquo;s St. Louis office, practices in the areas of commercial, employment and labor, medical malpractice, premises, product liability, and professional and management liability, throughout the Midwest.&nbsp; He regularly works with in house counsel, claims adjusters and administrators, national and local counsel for large commercial businesses, as well as risk managers and hospital and nursing home administrators.</p>https://www.bscr-law.com?t=39&format=xml&directive=0&stylesheet=rss&records=10Negligent References- Is there a duty in Missouri to refrain from making a negligent recommendation to a prospective employer?https://www.bscr-law.com/?t=40&an=92184&format=xml&p=5258&stylesheet=blog12 Jun 2019Missouri Law Blog<p>In recent years, the plaintiffs&rsquo; employment bar has continued to explore new and more creative avenues to state claims in Missouri. In <i>Doe v. Ozark Christian College</i>, Plaintiff filed a negligence action against Ozark Christian College, claiming the college negligently recommended a prospective employee to the employer church, which directly resulted in the employee then injuring Plaintiff after two years. The employee in question had been a student at Ozark Christian College from 1982 to 1989. The employer, a church, contacted Defendant for recommendations on filling an open position. Plaintiff alleged that based upon Defendant&rsquo;s positive recommendation, the church hired the employee in 2004. Plaintiff further alleged that as a result of that employment, employee then sexually abused Plaintiff from 2006 through 2010.</p> <p>The Southern District of the Missouri Court of Appeals, however, affirmed the trial court&rsquo;s ruling that Missouri has not defined or recognized a duty to make recommendations to a prospective employer, whether such a recommendation is done appropriately, or as alleged here, negligently. The Court of Appeals found that while some other states like California, New Mexico and Texas have permitted a &ldquo;negligent job reference&rdquo; cause of action, Missouri had not yet done so. The Court of Appeals reasoned that a whether a duty exists is purely a question of law, either imposed by a controlling statute, ordinance, contract, or by common law. While Plaintiff conceded there was no established case law or statutory authority for such a duty in Missouri, he argued that Missouri should recognize this duty because: Defendant assumed the duty under Section 324A of the Restatement Second of Torts; Section 311 of the Restatement Second of Torts imposes a duty and liability for negligent misrepresentation involving risk of physical harm; other states have recognized this as a duty of common law; and public policy facts support an imposition of this duty upon the Defendant. In a case of first impression, the arguments were ultimately struck down.</p> <p>The Court of Appeals found that Plaintiff&rsquo;s arguments contemplated the declaration of a new common-law duty rather than supporting the existence of a current duty. The threshold application of Section 324A is whether a defendant assumed an obligation or intended to render services for the benefit of an employer. Because Plaintiff lacked proper pleadings to support this legal conclusion, there could be no finding regarding Defendant&rsquo;s undertaking to render services to the employer and therefore application of Section 324A was not appropriate.</p> <p>The Court also held that there is no precedent in Missouri jurisprudence to allow the application of Section 311, where Plaintiff had failed to identify any controlling duty that exists under Missouri common law. While Plaintiff provided case law from New Mexico, Texas, and California in support of his arguments, the Court found numerous contrary cases in Indiana, Kentucky, Washington, Illinois, and New York. The Court of Appeals further stated that it is an error-correcting court, whereas the Supreme Court of Missouri is a law-declaring court and therefore declaration of a new duty is not properly within the Court of Appeals&rsquo; purview.</p> <p>While numerous jurisdictions, like Missouri, that have declined to recognize a duty related to employment recommendations and prospective employers, the rise of these new theories of liability have caused great concern among employers who face a variety of challenges for giving a good reference, a bad reference or an incomplete reference. For this reason, many employers uniformly follow a policy that if asked for a reference for a former employee, they will provide only the person&rsquo;s dates of employment and positions held.&nbsp;Because the law in this area varies from state to state, employers with blanket policies of referrals need to reconsider and make sure that each such request is reviewed using common criteria and guidelines. Questions regarding hiring and employment procedures and policies can always be directed to counsel. &nbsp;</p> <p>John Doe v. Ozark Christian College, SD35573.</p>https://www.bscr-law.com?t=39&format=xml&directive=0&stylesheet=rss&records=10Supreme Court of Missouri Issues First-Of-Its-Kind Ruling Overturning a $2.3 Million Negligent Credentialing Verdicthttps://www.bscr-law.com/?t=40&an=90185&format=xml&p=5258&stylesheet=blog12 Jun 2019Missouri Law Blog<p><strong>ALERT 06.12.2019:<br /> </strong>The Supreme Court has taken the unusual step of granting rehearing in this case. We will keep you apprised of future developments.&nbsp;</p> <hr /> <p><strong>ORIGINAL POST 03.28.2019:</strong><br /> In <i>Thomas E. Tharp, et al. v. St. Luke's Surgicenter &ndash; Lee's Summit, LLC</i>, the Supreme Court of Missouri <a href="https://www.courts.mo.gov/file/SC/Opinion_SC96528.pdf">overturned</a> a $2.3 million jury verdict in favor of a patient and his wife against a hospital, because there was no proof the hospital negligently granted staff privileges to a surgeon. The opinion is the first from the Supreme Court of Missouri to address the requirements of a negligent credentialing claim.&nbsp;</p> <p>The plaintiff alleged injuries stemming from a surgical procedure to remove his gallbladder.&nbsp;The plaintiff and his wife settled their claims with the surgeon, but went to trial against the hospital alleging it negligently granted privileges to the surgeon.&nbsp;At trial, plaintiffs presented evidence that the surgeon failed to disclose to the hospital all prior malpractice suits.</p> <p>The hospital filed a motion for directed verdict at the close of all evidence on two grounds: (1) There was insufficient evidence to establish it had been negligent; and (2) the act of granting privileges to the surgeon was not the proximate cause of the injury.&nbsp;The trial court denied this motion, and the jury returned a verdict in favor of the plaintiffs.&nbsp;The trial court also overruled the hospital&rsquo;s post trial motion for judgment notwithstanding the verdict, asserting the same arguments set forth above.</p> <p>In a 6-1 decision, the Supreme Court held that a breach of the hospital&rsquo;s bylaws (requiring the surgeon to report all prior malpractice suits) was not enough to support a negligent credentialing claim, and found no evidence that the grant of staff privileges to the surgeon was the proximate cause of the injury.</p> <p>Addressing the nature of the relationship between a modern healthcare facility and its medical staff, the Court observed that &ldquo;Physicians working under staff privileges are typically independent contractors, not hospital employees,&rdquo; and that &ldquo;staff privileges allow physicians to utilize a healthcare facility to admit and treat patients as independent care providers rather than as employees of the facility.&rdquo;&nbsp;Under appropriate circumstances, a negligent credentialing claim can provide an avenue for potential liability against a hospital for injury caused by an independent contractor.&nbsp;The focus is whether the hospital gathered pertinent information to make a reasonable decision as to whether to grant privileges.&nbsp;The proper inquiry is whether the physician was competent and possessed the necessary knowledge, skill and experience to perform his job without creating unreasonable risk of injury to others.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</p> <p>One of the requirements in the hospital&rsquo;s bylaws was full disclosure of all prior malpractice suits, and the failure to do so was grounds to automatically remove a physician from staff privilege consideration.&nbsp;The evidence at trial showed the surgeon failed to list on his application each suit he had defended over his career, but there was no evidence that addressed the surgeon&rsquo;s qualifications to perform surgery.&nbsp;The plaintiff&rsquo;s own expert admitted there was no &ldquo;magical number&rdquo; of malpractice suits that shows a surgeon is unqualified.&nbsp;Further, plaintiff&rsquo;s expert cited a statistical study showing physician malpractice claim rates vary widely depending, in large part, on the medical specialty involved.&nbsp;&ldquo;Even acts of repeated negligence do not support a finding a surgeon is incompetent when there is no evidence that shows a surgeon generally lacks a professional ability.&rdquo;&nbsp;Thus, the Court found the plaintiffs failed to make a submissible case of negligent credentialing.&nbsp;</p> <p>The Court also found the plaintiffs failed to prove the credentialing of the surgeon was the proximate cause of the injury.&nbsp;It was not enough to prove that but for the credentialing, the surgeon could not have performed the surgery that produced the injury.&nbsp;Rather, the plaintiffs needed to prove the injury was the natural and probable consequence of the surgeon&rsquo;s incompetence.&nbsp;&ldquo;Even a supremely qualified, competent, and careful physician may nevertheless injure a patient through an isolated negligent act.&rdquo;&nbsp;Because plaintiffs failed to show the surgeon was incompetent, they could not prove the injury was the result of the surgeon&rsquo;s incompetence and thus failed to make a submissible case.&nbsp;&nbsp;&nbsp;&nbsp;</p> <p>In this first ruling of its kind in Missouri, the Missouri Supreme Court has provided guidance to Missouri lower courts and practitioners prosecuting or defending a negligent credentialing claim.&nbsp;These claims are difficult to prove, as they require proof beyond that which is required to support a malpractice claim against a physician.&nbsp;Absent credible evidence of a physician&rsquo;s incompetence generally, and the negligent failure of a hospital to discover the incompetence and act accordingly, courts should dispose of these claims via dispositive motion. &nbsp;&nbsp;&nbsp;&nbsp;</p> <p>The opinion did not address whether the negligent credentialing theory conflicts with Mo.Rev.Stat. &sect; 538.210.4, which provides, in part, that &ldquo;[n]o health care provider whose liability is limited by the provisions of this chapter shall be liable to any plaintiff based on the actions or omissions of any other entity or individual who is not an employee of such health care provider . . . .&rdquo;&nbsp;Negligent credentialing liability necessarily depends on the negligent act or omission of a non-employee physician.&nbsp;In the event this argument is raised, it is unclear how the Court would address the apparent conflict of law.&nbsp; &nbsp;</p>https://www.bscr-law.com?t=39&format=xml&directive=0&stylesheet=rss&records=10Compliance Check for Financial Institutions: Is Your Website ‘Accessible' to those with Disabilities?https://www.bscr-law.com/?t=40&an=92115&format=xml&p=5258&stylesheet=blog10 Jun 2019Financial Services Law Blog<p>What do Amazon, Domino&rsquo;s, and Beyonc&eacute; have in common? Their websites have all have been the subject of high profile lawsuits alleging failure to comply with the Americans with Disabilities Act of 1990 (the &ldquo;ADA&rdquo;). Your financial institution could be, too, if it has not taken measures to ensure its website is ADA compliant.</p> <p>We most often associate the ADA with physical limitations of brick and mortar buildings. But in recent years, several courts have extended the protections of the ADA to customers using websites in times where we conduct most of our business online. The relevant portion of the ADA provides that &ldquo;No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to) or operates a place of public accommodation.&rdquo; 42 U.S.C. &sect;12182(a). Even though the ADA has not been amended to specifically address websites, several courts have held that the ADA applies to website accessibility, whether by nexus to a physical location or by the website&rsquo;s public nature.</p> <p>There is currently a split among the circuits as to whether or not a website falls under the scope of the ADA, but recent cases show a tilt in favor of holding that websites are either places of public accommodation in their own right, or have a sufficient nexus to services provided out of a brick and mortar location to fall under the ADA. In one of the more recent cases, the Ninth Circuit Court of Appeals held that an ADA lawsuit could proceed against Domino&rsquo;s for alleged failure to comply with appropriate accessibility standards for its website. The Court reasoned, &ldquo;The statute applies to the services of a place of public accommodation, not services in a place of public accommodation. To limit the ADA to discrimination in the provision of services occurring on the premises of a public accommodation would contradict the plain language of the statute.&rdquo; Domino&rsquo;s had not established that compliance would be an undue burden or would materially alter its business, such that the ADA claim was permissible.</p> <p>While ADA website litigation is not altogether new, it has gained traction in the past couple of years. Financial Services Litigators are closely monitoring these cases across the country and expect these filings against banks and credit unions to increase, due to increasing popularity of, and reliance upon, online banking by customers. Financial institutions are encouraged to ensure their websites comply with the current industry standard for accessibility, as well as state-level requirements. In evaluating its website, a financial institution should ask these questions:</p> <ul> <li>Is the website &ldquo;perceivable&rdquo;? Does it: <ul> <li>Provide&nbsp;text alternatives&nbsp;for non-text content</li> <li>Provide&nbsp;captions and&nbsp;other alternatives&nbsp;for multimedia</li> <li>Create content that can be&nbsp;presented in different ways</li> <li>including by assistive technologies, without losing meaning</li> <li>&nbsp;Make it easier for users to&nbsp;see and hear content</li> </ul> </li> </ul> <ul> <li>Is the website &ldquo;operable&rdquo;? Does it: <ul> <li>Make all functionality available from a&nbsp;keyboard</li> <li>Give users&nbsp;enough time&nbsp;to read and use content</li> <li>Avoid content that causes&nbsp;seizures</li> <li>Help users&nbsp;navigate and find content</li> </ul> </li> </ul> <ul> <li>Is the website &ldquo;Understandable&rdquo;? Does it: <ul> <li>Make text&nbsp;readable and understandable</li> <li>Make content appear and operate in&nbsp;predictable&nbsp;ways</li> <li>Help users&nbsp;avoid and correct mistakes</li> </ul> </li> </ul> <ul> <li>Is the website &ldquo;Robust&rdquo;? Does it: <ul> <li>Maximize&nbsp;compatibility&nbsp;with current and future user tools.</li> </ul> </li> </ul> <p>The Eighth and Tenth Circuits have not yet issued rulings applicable to this topic. We will continue to monitor for new cases and provide updates.</p>https://www.bscr-law.com?t=39&format=xml&directive=0&stylesheet=rss&records=10Coming Soon to Kansas City: Shorter Job Applicationshttps://www.bscr-law.com/?t=40&an=92116&format=xml&p=5258&stylesheet=blog06 Jun 2019Employment & Labor Law Blog<p>The Kansas City, Missouri City Council has unanimously passed an <a href="http://cityclerk.kcmo.org/LiveWeb/Documents/Document.aspx?q=%2fbEavSFoSCe%2bos0RzO0CYdqQoYbb2U9G9ynBfKr7tsQZUMcV2MgvelS9rtkh8x8p">ordinance</a> banning private employers in the City from asking job applicants about their salary history.</p> <p>Last year, KCMO passed a similar resolution banning the City from requesting salary history information from persons applying for city positions. Starting October 31, 2019, that ban will extend to all employers in Kansas City with six or more employees. The ordinance will ban employers from requesting salary history information, relying upon it, or discriminating against job applicants who do not provide it. &ldquo;Salary history&rdquo; includes &ldquo;current or prior wages, benefits, or other compensation.&rdquo; The ban applies to all conversations between employers and applicants, and includes public record searches. Violations will be punishable by a fine of as much as $500 or up to 180 days in jail.</p> <p>Of course, the ordinance comes with exceptions. The ban does not apply to the following:</p> <ul> <li>Applicants for internal transfer or promotion with their current employer;</li> <li>An applicant&rsquo;s voluntary and unprompted disclosure of salary history information;</li> <li>Salary history inadvertently disclosed during an employer&rsquo;s attempt to verify an applicant&rsquo;s disclosure of non-salary related information or conduct a background check, so long as the information is not relied upon for purposes of determining the applicant&rsquo;s compensation.</li> <li>Employee positions for which salary, benefits, or other compensation are determined pursuant to procedures established by collective bargaining; and</li> <li>Applicants who are rehired by an employer within five years of termination if the employer already possesses salary information from the applicant&rsquo;s prior employment.</li> </ul> <p>The explicit goal of the new ordinance is to help narrow the gender pay gap. While women nationwide earn roughly 80% of every dollar their male counterparts earn, women in Missouri and Kansas earn roughly 78% and 77%, respectively. In Kansas City, the gender pay gap is almost 22%, which is one of worst wage divides among major U.S. cities.&nbsp;</p> <p>The ordinance will undoubtedly benefit male applicants as well. Wage history has long been used by employers to set the compensation for new hires. However, requiring the disclosure of prior wages creates bias and can cause many applicants, both men and women, to feel stuck in their social class with a capped earning capacity. With the new ordinance, applicants&rsquo; wage history will no longer follow them into job interviews. Hiring will instead be about the job duties and the applicant&rsquo;s skill set.</p> Kansas City is not the first to enact a salary history ban. In the last several years, many other states and municipalities have enacted similar bans, including California, Connecticut, Delaware, Hawaii, Massachusetts, Oregon, Vermont, New York City, Philadelphia, and San Francisco.https://www.bscr-law.com?t=39&format=xml&directive=0&stylesheet=rss&records=10Baker Sterchi Cowden & Rice Welcomes Summer Law Clerks in Kansas City and St. Louishttps://www.bscr-law.com/?t=40&an=92149&format=xml&p=544805 Jun 2019Firm News<p>Baker Sterchi Cowden &amp; Rice is pleased to welcome summer law clerks in Kansas City and St. Louis.</p> <p>Law clerks in Kansas City include:</p> <p style="margin-left: 40px;"><b>Malika Baker</b>, a rising 3L student at the University of Kansas School of Law, where she is a member of the Dean&rsquo;s Diversity Leadership Council, Vice President of the Black Law Students Association, and a member of Women in Law. Baker earned her undergraduate degree in Global and International Studies from the University of Kansas, where she was a member and team captain of the track and field/cross country team, and served on the Student-Athlete Advisory Committee and as a student representative member of the Alcohol Risk Reduction Coalition.&nbsp; During her 2018 Summer Break, Baker served as an intern to the Honorable Steve Leben, Kansas Court of Appeals.&nbsp;</p> <p style="margin-left: 40px;"><b>Travis Hoehn</b>, a rising 3L student at the University of Kansas School of Law, where he is a member of the Sports and Entertainment Law Society.&nbsp;He earned his undergraduate degree in Political Science from the University of Kansas, where he was a member of Pi Sigma Alpha National Political Science Honor Society.&nbsp;&nbsp; During his 2018 Summer Break, Hoehn served as a student intern for the Paul E. Wilson Project for Innocence.&nbsp;He is a Knights of Columbus volunteer.</p> <p>Law clerks in St. Louis include:</p> <p style="margin-left: 40px;"><b>Kelly &ldquo;Koki&rdquo; Sabat&eacute;s</b>, a rising 3L student at the University of Missouri-Columbia, where she is a member of the University of Missouri Law Board of Advocates, the Student Bar Association, and The Federalist Society. &nbsp;Sabat&eacute;s has held numerous leadership roles while in law school, including serving as the 1L Class Representative and Executive Board Secretary to the Student Bar Association, Chapter President of The Federalist Society, and Assistant Director of the Board of Advocates Mock Trial Competition.&nbsp;She has also earned advocate honors through her involvement in trial team, including winning the Fall 2018 Attorney General Cup Competition.&nbsp;Upon her return to school, she will serve as President of the Student Bar Association and remain involved in the Board of Advocates program as a member of the trial competition teams and Mock Trial Director.&nbsp;During her 2018 Winter Break, Sabat&eacute;s served as a judicial intern for the Honorable Beth Phillips, United States District Court for the Western District of Missouri.&nbsp;She currently serves as a PowerNotes and a LexisNexis Student Representative. She is also a member of the Elwood L. Thomas American Inn of Courts.&nbsp;Sabat&eacute;s, who is fluent in Spanish, earned her undergraduate degree in acting from the University of Minnesota-Duluth.</p> <p style="margin-left: 40px;"><b>Jasmine Riddick</b>, a rising 2L student at Emory University in Atlanta, where she is a member of the Intellectual Property Society, Corporate and Business Law Society, Legal Association for Women Students, and Black Law Students Association.&nbsp;Riddick earned her B.S. in Business Administration and B.A. in Economics from Johnson C. Smith University in Charlotte, NC, where she participated as a member of the women&rsquo;s tennis team.&nbsp;Prior to law school, Riddick worked as a Financial Management Analyst for various divisions at Bank of America Corporation.</p> <p>Baker Sterchi summer law clerks attend hearings and depositions, prepare blog posts, and complete various research projects, as well as participate in fun activities in the cities in which they are located.&nbsp;</p>https://www.bscr-law.com?t=39&format=xml&directive=0&stylesheet=rss&records=10Baker Sterchi Cowden & Rice Welcomes Kathryn Huelsebusch in St. Louishttps://www.bscr-law.com/?t=40&an=91328&format=xml&p=544803 Jun 2019Firm News<p>Baker Sterchi Cowden &amp; Rice is pleased to welcome Kathryn Huelsebusch to the firm&rsquo;s St. Louis office. Huelsebusch, who joins the firm as Of Counsel, represents hospitals, physicians, nurses, long term care facilities, home health care providers, and other healthcare entities throughout Missouri and Illinois. She also represents businesses in general liability cases including premises liability, negligence, personal injury, and breach of contract.</p> <p>Before joining Baker Sterchi Cowden &amp; Rice, Huelsebusch took a brief break from practicing law to work as a claims adjuster for an international third party administrator, gaining invaluable insight into the inner workings of in-house legal departments and the claims management industry.</p> <p>Huelsebusch earned her undergraduate degree from the Catholic University of America and her law degree from Saint Louis University School of Law. She is admitted to practice in the state and federal courts of Missouri and Illinois and in the U.S. Court of Federal Claims.&nbsp;She is a member of the Bar Association of Metropolitan St. Louis.</p>https://www.bscr-law.com?t=39&format=xml&directive=0&stylesheet=rss&records=10Supreme Court Holds Plaintiff's Failure to Include Allegations Later Sued Upon, in Her Charge of Discrimination, Is Not "Jurisdictional"https://www.bscr-law.com/?t=40&an=92114&format=xml&p=5258&stylesheet=blog03 Jun 2019Employment & Labor Law Blog<p>We would have thought that every lawyer who took Employment Law 101 in law school learned that:</p> <p style="margin-left: 40px;">(1) A plaintiff who files a lawsuit alleging violation of a federal employment law statute like Title VII, or its state law counterpart, must exhaust administrative remedies by filing a charge of discrimination with the EEOC or the state equal employment agency;</p> <p style="margin-left: 40px;">(2) Failure to do so can lead to dismissal of the claim; and</p> <p style="margin-left: 40px;">(3) It is incumbent upon defense counsel to point out a Plaintiff&rsquo;s failure to exhaust.</p> <p>But perhaps the third point was not so obvious. On June 3, 2019, the U.S. Supreme Court in <i>Fort Bend County v. Davis, </i>affirmed a Fifth Circuit ruling, and <a href="http://www.supremecourt.gov/opinions/18pdf/18-525_m6hn.pdf">held</a> that where a Plaintiff alleged sexual harassment and retaliation in her EEOC charge, but did not properly include a claim for religious discrimination, the religious discrimination claim could still go forward, because the defendant has not raised her failure to include this in her charge as a defense, and rather waited until years into the litigation to first bring up the issue.</p> <p>In a unanimous decision by Justice Ginsburg, the Court ruled that Title VII&rsquo;s charge-filing precondition to suit is not a &ldquo;jurisdictional&rdquo; requirement that can be raised at any stage of a proceeding; rather, is it a procedural prescription that is mandatory and can lead to dismissal if timely raised, but subject to forfeiture if tardily asserted.&nbsp;In other words, it is a claim-processing rule that a plaintiff is required to follow, but whose breach must be properly asserted by a defendant.</p> <p><u>Practice tip for defense counsel:</u>&nbsp;Don&rsquo;t be stupid.&nbsp;When a court case is filed, compare the charge of discrimination and the Complaint with the utmost care.&nbsp;If the Complaint alleges claims or conduct that were not within the scope of the charge, raise the defense that the plaintiff has failed to exhaust administrative remedies as to those claims.</p>https://www.bscr-law.com?t=39&format=xml&directive=0&stylesheet=rss&records=10Court Awards Nearly Twenty Times Damages in Illinois Wage Payment Act Casehttps://www.bscr-law.com/?t=40&an=90939&format=xml&p=28 May 2019Illinois Law Blog<p>On December 27, 2018 the Illinois Appellate Court for the First District affirmed an award of attorney&rsquo;s fees and costs to plaintiff which was nearly twenty times the damages awarded at trial for an Illinois Wage Act claim. The Court ruled that the trial court did not abuse its discretion by awarding $178,449.97 in attorneys&rsquo; fees after a trial ending in a $9,226.52 judgment against the defendant.</p> <p align="center"><u>Facts</u></p> <p>Plaintiff Raymond Thomas sued defendant Weatherguard Construction Company, Inc. for $47,666.00 in commissions for contracts that he had procured on Weatherguard&rsquo;s behalf.&nbsp;A key issue at trial was whether Weatherguard employed Thomas.&nbsp;Plaintiff claimed violations of the Illinois Sales Representative Act and the Illinois Wage Payment Act, breach of contract and unjust enrichment.&nbsp;The trial court granted summary judgment to Weatherguard on one count, and, after nearly ten years of litigation, the matter proceeded to trial on the remaining claims.&nbsp;The trial court found that Thomas was indeed an employee of Weatherguard, but awarded Thomas only $9,226.52. The verdict was upheld on appeal but remanded to the trial court for a determination of an attorneys&rsquo; fee award to Plaintiff pursuant to the Wage Payment Act.&nbsp;Upon briefs submitted by the parties, the trial court awarded plaintiff $178,449.97 in attorney&rsquo;s fees and $1,124.68 in costs.&nbsp;Weatherguard appealed the award arguing that the award by the trial court was &ldquo;excessive.&rdquo;&nbsp;The Court of Appeals affirmed the award.</p> <p align="center"><u>The Attorney Fee Award</u>.</p> <p>On appeal, Weatherguard argued, amongst other things, that the fee award was excessive because it represented work for claims for which there was no basis for Thomas to recover attorney fees.&nbsp;Weatherguard contended the recovery of fees should be limited only to work done to further the Wage Payment Act claim.&nbsp;Additionally, Weatherguard argued that the disparity between the amount of the damages award and the amount of the fee award constituted an abuse of discretion by the trial court.&nbsp;The Court rejected Weatherguard&rsquo;s argument that Thomas was entitled only to fees for his statutory Wage Payment Act claim.&nbsp;The statute allows for employees successfully recovering under the Act to &ldquo;also recover costs and all reasonable attorney&rsquo;s fees.&rdquo;&nbsp;Weatherguard argued that, because attorney fees are ordinarily not recoverable without contract or statutory authority, plaintiff should only be entitled to recover for work by his attorney directly attributable to pursuing the statutory Wage Act Claim.</p> <p>The Appellate Court found that Thomas could recover fees and costs for all of his claims involving a common core of facts and related legal theories, even where he was successful only on some of the claims.&nbsp;The Wage Payment Act calls for recovery of &ldquo;all reasonable attorney&rsquo;s fees&rdquo; in a &ldquo;civil action.&rdquo;&nbsp;The Court noted that the only limiting language in the statute was that the attorney fees be &ldquo;reasonable,&rdquo; and concluded that the statute did not contain an exception to the rule allowing for attorney fees for claims stemming from the same common core of facts and related legal theories. The Court stated that an exploited worker ordinarily would not be in a position to bring a civil action against his employer without the statutory incentive of fee recovery by the prevailing attorney.</p> <p>The Court also determined that legislative history of the Wage Payment Act supported the finding that Thomas was entitled to fees for all of his claims.&nbsp;The Illinois legislature contemplated that litigation costs associated with bringing claims under the Act would not be borne by plaintiff employees.</p> <p>The Court rejected Weatherguard&rsquo;s argument that the vast difference between the amount of the damages award and the amount of the fee award constituted an abuse of discretion.&nbsp;Noting that in a matter involving fee shifting either by contract or statute an abuse of discretion does not automatically justify rejection of the amount sought in fees, the Court considered the conduct of Weatherguard in making the choice &ldquo;to aggressively litigate the case&rdquo; for ten years on a suit seeking &ldquo;only $47,666 in commissions.&rdquo;&nbsp;While courts may look to whether there is a reasonable connection between the fees and the amount involved in the litigation, the Appellate Court found that the &ldquo;years of attorney time expended and the amount at issue was deemed reasonable by defendant&rdquo; in defending the claims, and defendant &ldquo;cannot be heard to complain now.&rdquo;</p> <p>Weatherguard also argued that Thomas only received a fraction of the recovery that he sought and should receive only a fraction of the fees incurred.&nbsp;While the Appellate Court agreed that the amount of the fees in relation to the benefit is a relevant consideration, it noted that Thomas was successful on the primary issues of employment and compensation.&nbsp;Accordingly, the Court found no abuse of discretion.</p> <p align="center"><u>Guidance for the Future</u></p> <p>This case underscores that when litigating cases involving either contractual or statutory fee-shifting provisions, it is possible that fees may be awarded far exceeding the damages award.&nbsp;This possibility should be considered when assessing case value.</p>https://www.bscr-law.com?t=39&format=xml&directive=0&stylesheet=rss&records=10