Thursday, February 28, 2013

Amistad Case Opens in Supreme Court in 1839


On February 22 of 1841, the United States Supreme Court heard arguments on the "Amistads"
 
In July 1839, while en route between two Cuban ports, a group of 53 Africans aboard La Amistad, a Spanish slave ship, broke from their chains in revolt. After two months at sea with several stops for water and provisions, the Amistad anchored off Montauk Point.
 
 
Once assured they had not landed in slave holding territory, the Africans allowed themselves to be taken into custody. The Africans, known popularly as the Amistads, were claimed as cargo by Cuban slave traders, as salvage by the crew of the Washington and as property by the Spanish government.
 
But the slaves themselves, whose charismatic leader was given the name Cinque, argued that they were free men and women, kidnapped by Cuban slavers in Africa and carried to the U.S. against their will. After hearing details of their abduction and enslavement, punctuated by the riveting testimony of Cinque, Judge Judson ruled that the Africians were free men and women, and should be returned to their homeland.
 
President Van Buren,  who was concerned about relations with Spain,   appealed to the Supreme court, which was seen as a favorable jurisdiction because a majority of the justices were from Southern states and had previously owned slave. Arguments began on Feb. 22, 1841, with the Africans represented by Baldwin and an aging John Quincy Adams. On March 9, the Supreme ruled 7-1 that the Amistads had been kidnapped, and that, even under the laws of Spain, the Africans must be freed.  
 
 
 
On November 1841, 35 of the surviving Amistads-with an American mission group-boarded a ship called the Gentleman and returned to Sierra Leone. Upon their arrival, Cinque learned that his wife and children had been killed in his absence.

Thursday, February 21, 2013

Consent to Settle by Insured Required by Louisiana Supreme Court?

On February 8, I was honored to co-chair with Randy Metzger of Lancer Insurance the Trucking Industry Defense Association's Advanced Conference in San Diego.
 
This purpose of this conference was to provide practical information to the trucking and insurance industry in the "routine cases."
 
One of the panel groups, hosted  by Mark Barber,  discussed the "pressure" between the insured, insurer and excess carrier. One aspect of the panel, addressed the consequences of failing to obtain a consent to settle. Typically, the consent to settle by the insured  is not part of an insurance contract, so it should NOT be  a problem if you fail to get pre-approval of the insured.
 
However, the Louisiana Supreme Court recently issued a relatively scathing opinion against some defense attorneys who failed to counsel with the INSURED client before settling the case. Even if the consent to settle was not limited by the insurance contract, the ATTORNEY HAD AN ETHICAL  DUTY TO KEEP THE INSURED INFORMED!

Several people asked for the decision. If you would like a copy of the opinion, contact me and I will forward a copy to you because the opinion may have bearing on self-insured policies of insurance. It most certainly applies to circumstances where the insured must consent to the settlement (often a requirement in the professional malpractice insurance, such as with doctors or realtors). 
 
In case you are not aware of the ruling, it is actually directed to the ethical duties of LAWYERS, but has a profound impact on settlement decisions:
 

Rule 1.2 of the Rules of Professional Conduct requires a lawyer who represents an insurer and insured in a case involving a "consent to settle" clause to advise the insured as soon as practicable (generally at the inception of representation) of the limited nature of the representation the attorney will provide to the insured.
Once the lawyer has made the appropriate disclosure and the insured indicates consent by accepting the defense, the lawyer may then proceed with the direction of the insurer in accordance with the terms of the insurance contract, including settling the claim within the limits of the policy at the insurer's sole direction.
 
However, the lawyer should make efforts to keep the insured reasonably apprised of developments in the case.  In the case before it, the Court found that the attorneys did not do this. Because there was a lack of controlling jurisprudence at the time of the attorneys' actions, the Supreme Court provided the following prospective admonition:
 
"[W]e take this opportunity to make it clear to respondents and all members of the bar that limited representation situations are fraught with potential dangers to all parties, as readily illustrated by the instant case. Henceforth, lawyers should be scrupulous in adherence to their obligations under Rule 1.2 to ensure that all clients in such a relationship are fully apprised of the nature of the representation and indicate consent by accepting the defense." In Re Zuber, No. 12-B-0916 (10/16/12) (Johnson, J, dissents in part)

I hope this gives you some guidance on the continued responsibility to keep BOTH the insurer AND the insured aware of the status of litigation. Even though the insurer may retain my services  my services, my duty is TO the INSURED!
 
 
As always, if there is ANYTHING I can do for you in Louisiana or Texas, particularly NORTH Louisiana or NORTHEAST Texas, please feel free to call or e-mail at any time, day or night. Our goal is to keep you informed and to receive the best possible defense.  

Thursday, February 14, 2013

Will Trucking Company "DAC Background Checks" Violate Title VII Because Discriminatory Impact?

I recently posted information on Linked In about the EEOC strategy to pursue claims against  employers using a blanket approach to background checks of criminal history and credit information. According to the EEOC, such an approach would have discriminatory IMPACT on certain racial demographics, even if the actual applicant was not discriminated.
 
 
The concern for the trucking industry is that this "clearinghouse" procedure works well to obtain information about an applicant before inquiring in more depth. Even though it may cost prohibitive to run an individualized background, trucking companies could face an investigation by the EEOC if they continue the process.
 
Of course, if the trucking company shows that they did not screen applicants solely by the background check, they may escape the wrath of the EEOC.
 
In response to the post about the EEOC plan to investigate blanket background checks, I received the following from someone:
 

"Looks like the EEOC is going to have to rethink its focus on finding violations of Title Vll based on credit background checks. The recent decision in the Kaplan case by a federal court in Ohio clearly destroys the EEOC's disparate impact theory based upon ackground credit checks and I wonder if the same defense theory might be applied to criminal background checks. Funny part of the ruling in the Kaplan case is the judge pointed out that the EEOC itself uses credit background checks for 84 of the 97 positions at the agency. Wonder if they also use criminal background checks for those positions too? Interesting!!


The "Kaplan" reference is to a decision by a federal trial court in the Northern District of Ohio.  (EEOC v. Kaplan Higher Educ. Corp., N.D. Ohio, No. 10-2882, 1/28/13). I presented this argument Professor Bill Corbett of the LSU Law School. His thoughts are outlined below:
 
Two thoughts:  1) Fed. Dist. Ct in Ohio, so limited authority, and 2) decided mainly on exclusion of evidence.So, I think the repercussions will not be that great.
Best,
Bill

Professor Corbett included the following analysis:
 
Court Grants Kaplan Summary Judgment In EEOC Challenge to Credit Report Use
EEOC v. Kaplan Higher Educ. Corp., N.D. Ohio, No. 10-2882, 1/28/13
 
Key Holding:
 
EEOC's failure to produce admissible expert testimony showing disparate impact on black applicants sinks Title VII pattern or practice lawsuit.
 
Key Takeaway:
 
Applying Supreme Court precedent, court rules EEOC's reliance on “race raters” to identify applicants' races based on photos is not scientifically reliable basis for expert's disparate impact analysis.
 
The Equal Employment Opportunity Commission's failure to present admissible evidence that Kaplan Higher Education Corp.'s use of credit reports in hiring for certain positions has a disparate impact on black applicants requires dismissal of EEOC's race bias suit under Title VII of the 1964 Civil Rights Act, the U.S. District Court for the Northern District of Ohio ruled Jan. 28.
 
Backgound information:
 
EEOC in 2010 sued Kaplan Higher Education, Kaplan Inc., and Kaplan University, alleging they engaged in a “pattern or practice” of race discrimination by using applicants' credit reports as the final step in hiring individuals for financial aid jobs even though the practice has a disproportionate adverse impact on black applicants (245 DLR A-2, 12/22/10).
 
The district court subsequently trimmed EEOC's nationwide class suit, holding Title VII's 300-day limitations period curtailed the class of individuals for whom EEOC could seek relief (92 DLR AA-1, 5/12/11). The court also granted Kaplan's discovery motion requiring EEOC to provide information on the agency's own use of credit reports as part of the background checks used to hire EEOC employees (82 DLR A-4, 4/27/12).





Thursday, February 7, 2013

Louisiana Still on the Watch List of Judicial Hellholes!


 
The American Tort Reform Association has dropped South Florida from its annual Judicial Hellholes list after nine years, thanks to automobile insurance personal injury protection reforms, and also dropped Philadelphia from its former No. 1 ranking of the past two years after tort reform in its Court of Common Pleas Complex Litigation Center.

 
Jurisdictions with large discovery costs and punitive damages are of concern. The lack of predictability is a major factor in what makes the litigation system problematic for insurers and policyholders.  
 
Nonetheless, South Florida remains on ATRAs watch list, partly because of what ATRA describes as a lax standard for expert testimony in courtrooms, despite efforts to raise the standards to those of other states and the federal government. Also, the latest paper cites gamesmanship with the states bad-faith insurance law being allowed to continue.
 
 
Continuing on the ATRA watch list is Louisiana, which the report said has among the highest auto insurance rates in the nation. Auto insurance rates continue to climb there, the report said, thanks to a litigious environment, an aggressive personal injury bar, excessive damage awards and plaintiff friendly judges.
 
 
To describe Louisiana, as whole, as a judicial hell-hole is a bit misleading.If you were to continue the latitudinal line westward, most of the Northern part of Louisiana would be more conservative in judicial verdicts. Of course, not all of the JUDGES are conservative, but generally they are more so than in South Louisiana.
 
Historically, the parishes of Cameron, Calcasieu, Jefferson, Allen and Beauregard were fairly conservative. However, when Hurricane Rita (the sister of Katrina) devastated this area, with less assistance than given to the areas hit by Katrina and insurance companies argued about wind versus flood damage, then these folks became much less tolerant of insurance companies.
 
We tell what you need to hear, not what you want to hear. We only DEFEND companies, but it takes tenacity to do it.
 
If you have a question about the judges, lawyers, venue demographics of the North Louisiana parishes, give me a call. I will be glad to visit with you. I am available any day at any time.  For more information on how to contact me, go to the firm's web page at www.perkinsfirm.com.