Are Women Getting a Better Chance to Argue in State Appellate Courts? Like in Most of the Law, the Answer is “It Depends”

There has been a wealth of information recently on just how few women are getting opportunities to argue before the Supreme Court. Inspired by the fantastic piece done by Adam Feldman of Empirical SCOTUS (and @AdamSFeldman on Twitter) that looked at the dearth of women getting chances to argue before the nation’s highest court during the last 5 years (if you haven’t read Adam’s work, please take a minute and do that.  It’s fascinating stuff!), and Raffi Melkonian’s (@RMFifthCircuit on Twitter) look at oral arguments in the Fifth Circuit (the thread starts here), I started to wonder if the state appellate courts are a female-friendlier venue for high court appellate arguments.

Riding the coattails of the impressive work done by Adam and Raffi, I looked at how many arguments were done by women attorneys in the New York Court of Appeals during 2016. According to Adam’s piece, “if we look at all attorneys that have argued before the [Supreme] Court between the 2012 and 2016 Supreme Court terms (a total of 864 attorney arguments), females make up between 17% and 18% of the attorneys.”  For the Fifth Circuit in 2016, Raffi’s calculation also came out to about 17%.

Women argued in the New York Court of Appeals, on the other hand, approximately 37% of the time (136 arguments by women attorneys out of 372 opportunities).  That’s a significantly better rate than in the federal Courts of Appeals (assuming the Fifth Circuit is a good example) and in the Supreme Court. Of the cases that were argued before the Court of Appeals in 2016, there were 31 cases in which two women attorneys argued compared to 74 cases in which two men faced off.

Although the overall opportunities for women to argue in the Court of Appeals seem better than is seen in the Supreme Court and the Fifth Circuit, the total argument data masks a large divide in criminal and civil argument opportunities. When the arguments are broken down by case type, there was a much greater chance that women attorneys would argue criminal cases than civil cases.

In 2016, there were 188 attorneys who argued before the Court of Appeals in criminal cases.  89 of those attorneys were women.  That’s 47%.  The number of criminal cases in which both advocates were women was also largely equal to the number where both were men, 24 to 26.

For civil cases, however, the rate was much more similar to the rates seen in the federal appellate courts. The Court of Appeals heard arguments from 184 attorneys in civil cases in 2016, only 47 of which were women.  That’s 26%. Slightly higher than the Fifth Circuit and Supreme Court, but not significantly so.  The disparity in civil cases argued by all women versus argued by all men is even more stark.  While there were 48 cases with all-male arguments, the Court of Appeals heard only 7 cases in which the attorneys at the podium were all female.

Although this is just one year of data (and I may have to go back a few more years to see if these trends hold over time), the argument data suggests that women attorneys are getting better opportunities for appellate arguments in public interest avenues, like The Legal Aid Society, Appellate Advocates, or District Attorney’s Offices, than they are in typical private law firms.  Given the well-publicized difficulties in women advancement in law firms, the dearth of women arguing in civil cases is not surprising. But that’s certainly no excuse for the problem.

While it’s great to see the state high court appellate argument opportunities even out in criminal cases, much work still needs to be done on the civil side.  As Raffi said (and I can’t put it any better), “just a thought for those of us who assign cases, and for clients who decide who they want to argue[, g]ive someone else a shot.”

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Third Department Justices Disagree on Whether Student Accused of Sexual Assault Should Have Right to Cross-Examine Accuser

The Appellate Division, Third Department has decided a number of significant issues recently involving the State University of New York’s disciplinary system in sexual assault cases. First, it was Matter of Haug v State Univ. of N.Y. at Potsdam, in which the Court annulled the expulsion of a student accused of sexual assault, finding that the hearsay statement of the accuser wasn’t enough to support the discipline. That case is at the Court of Appeals on an appeal as of right, and has been fully briefed, just waiting for an argument date.

Next, it was Matter of Weber v State Univ. of N.Y., Coll. At Cortland, where the Third Department reached a seemingly contradictory result to Haug. In Weber, the facts were a little more clear, but in neither case did the accused student have the “affirmative consent” to sex that the SUNY Code of Conduct requires. While in Haug, the Third Department vacated the expulsion, in Weber, the Court upheld it.

The Third Department’s latest foray into the SUNY disciplinary process in sexual assault cases came just this week. In Matter of Jacobson v Blaise, the Third Department heard a case arising from an alleged sexual assault on Halloween 2015 at SUNY Plattsburgh. Neither the accused student nor the accuser remembered who initiated the sex, and both were drunk at the time. Five days afterward, the accuser reported it as sexual assault, and the accused was issued a “No Contact” order.

At the eventual disciplinary hearing, the accuser listened to the proceedings via Skype, but did not participate. Instead, the lead investigator that had filed the disciplinary charges against Jacobson read the accuser’s statement into the record at the hearing. Jacobson was allowed to cross-examine the investigator at the hearing, but not the accuser herself. This was a major point of contention between the majority and dissent at the Third Department.

As the majority explained, under the “‘Students’ bill of rights’ section in the Education Law, the reporting person has the right to ‘[m]ake a decision about whether or not to . . . participate in the judical or conduct process . . . free from pressure by the institution’ (Education Law § 6443).” This protection has two components: first, the accuser can decide whether or not to participate in the hearing, and the school can’t tell him or her that failure to participate could hinder the case; second, the accuser has the right to remain anonymous. In light of these protections, the Court held, Jacobson had no due process right to cross-examine his accuser at the hearing, whether in person, electronically through Skype, through the hearing officer, or by written questions. His right to question the investigator about the accuser’s statement was enough in this case, the majority decided.

The majority recognized, however, that there may be a case where a limited right to cross-examination of the accuser should be permitted. In Weber, for example, “the accused student submitted questions through the hearing officer who reworked the question ‘into a more neutral form'” (Weber, 150 AD3d at 1432). Thus, the majority set out a new rule for when the limited right to cross-examine the accuser arises:

where a material factual conflict exists between the statements of a reporting person and an accused student, a mechanism should be made available for the accused student to present questions for the reporting person to address, akin to that utilized in Doe or Weber.

The two Justice dissent, on the other hand, would have held that Jacobson’s due process rights had been violated. The dissent countered:

The dissent recognized that cross-examination is not necessary or warranted in many student disciplinary cases, most of which result in nothing more than a slap on the wrist or a suspension from which the student can return to school. But sexual assault cases are different, the dissent reasoned. They lie at the extreme end of disciplinary consequences and, thus, an accused student should have a full panoply of due process rights to cross-examine the accuser in whatever form the hearing officer finds appropriate.

In this case, the dissent noted, the accuser was already watching the hearing via Skype and could have been questioned that same way, or Jacobson could have been allowed to submit questions for the hearing officer to ask. Either way, the dissent argued, the failure to give Jacobson this right deprived him of due process at the hearing and rendered his expulsion void.

Here’s the thing though. The majority too found a reason to vacate Jacobson’s expulsion. It just wasn’t on due process grounds. Instead, the majority held that the investigator had at the hearing improperly defined what it meant to obtain affirmative consent to sex and suggested that Jacobson had to have been the one to ask for consent because he initiated the sex by penetrating the accuser. That’s not the right definition of either affirmative consent or initiation, the majority held, and it seriously undermined the Board’s decision to sustain the sexual assault charges. So, it sent the case back to the SUNY Disciplinary Board for a new hearing.

The dissent agreed with that flaw too, but because it also found a due process violation, it wouldn’t have sent the case back. Instead, it would have annulled the determination and ended the matter altogether.

Now, Jacobson will have a chance to go back before the Board for a new hearing in the charges, which may be of little comfort to him if he is again denied a chance to have the accuser questioned.

The right of cross examination issue in sexual assault disciplinary hearings is a hard and interesting one. There are certainly important interests on both sides, and I haven’t done enough research to know how those interests should be balanced.

It’s the kind of issue that should be heard by the Court of Appeals so there is a single rule to be applied statewide, but that won’t happen quite yet, unless the Third Department dissenters grant Jacobson leave to appeal. Without an Appellate Division leave grant, the Court of Appeals can’t hear the issue in this case because the remand for a new administrative hearing renders the Appellate Division order nonfinal. It seems to me, though, that this would be a good companion case to Haug, which is now fully submitted before the Court of Appeals. I can’t imagine it will be long before the Court is asked to address the question.

The Appellate Division, Third Department order can be found here.

Court of Appeals January Session: Arguments of Interest for January 10, 2018

The Court of Appeals wraps up its January Session arguments on January 10, 2018 with cases that make the procedural geek in me smile. There are three cases on the argument calendar today (the Court’s case summaries can be found here), two of which involve really interesting (to me at least) procedural issues about counterclaims and the courts’ interests of justice jurisdiction. Here are the issues the Court will address: (1) does the Federal Rules of Civil Procedure’s mandatory counterclaims rule apply in New York state litigation to give res judicata effect to a counterclaim that was not pled in a prior federal suit; (2) does an appellate court have interests of justice jurisdiction to review an issue that a criminal defendant waived before the trial court; and (3) is a criminal defendant denied effective assistance of counsel by withdrawing a Hundley motion to suppress a videotaped confession after the trial court has granted a hearing on the motion.

No. 16    Paramount Pictures Corporation v Allianz Risk Transfer AG

In a suit about a lost investment in movies, the issue before the Court of Appeals has absolutely nothing to do with the movie or the lost investment. Instead, it’s the kind of issue that sparks interest in the community of appellate lawyers who look at how the courts work. In this case, Allianz invested in a Paramount film, but agreed to waive any claims against Paramount and not to sue if the investment went south.

The investment tanked, and Allianz sued Paramount in federal court anyway, notwithstanding the waiver of claims and bar to lawsuits. Paramount defended the litigation based on the waiver provision, but never raised the covenant not to sue as an affirmative defense or pled Allianz’s breach of it as a counterclaim in the federal suit. What’s noteworthy about that is that Rule 13(a) of the Federal Rules of Civil Procedure require any party to a suit to assert any mandatory counterclaims that it has in that litigation or else they will later be barred from doing so.

After the federal court predictably dismissed the case because of the waiver provision, Paramount brought this breach of contract suit in state court based Allianz’s breach of the covenant not to sue. Allianz moved to dismiss, arguing that res judicata barred Paramount’s breach of contract claim because it was a mandatory counterclaim that was never asserted in the federal suit and was barred by FRCP Rule 13(a).

Supreme Court denied the motion to dismiss, citing New York’s permissive counterclaims rule under CPLR 3011. New York doesn’t subscribe to the federal mandatory counterclaim rule, the Court held, and to adopt it would conflict with New York’s rule.

The Appellate Division, First Department, however, reversed and dismissed the suit. The Court held that Rule 13(a) should be applied in state court litigation, and Paramount’s breach of contract claim was thus barred by res judicata for failure to assert it as a mandatory counterclaim in the federal suit.

The Court of Appeals will now hear arguments on this issue of first impression in New York. In a practical sense, it would make sense to me that res judicata should bar any mandatory counterclaim that a party was required to assert in a prior federal suit, but failed to do so. Holding the other way would be a disservice to judicial economy and would allow parties to litigate multiple suits in different forums (with different judges and rules) claims that could all be resolved in a single case all at once. But that will be up to the Court to decide.

The Appellate Division, First Department’s order can be found here.

Court of Appeals January Session: Arguments of Interest for January 9, 2018

The Court of Appeals is back for the final week of the January Session. There are only two days of argument this week, and three cases are on the docket today (the Court’s case summaries can be found here). The Court will hear arguments on the following issues: (1) whether the Long Island Power Authority is entitled to governmental immunity from tort liability for its failure to shut down the power grid in Queens before or during Hurricane Sandy; (2) does an indenture trustee have standing to enforce all rights of bondholders, or just limited authority to bring actions for payment on or to enforce the terms of the notes; and (3) whether a criminal defendant is denied a constitutional speedy trial where the prosecution delays his trial for six years while trying to obtain the cooperation of a co-defendant.

No. 11     Connolly v Long Island Power Authority
No. 12     Baumann v Long Island Power Authority
No. 13     Heeran v Long Island Power Authority

In these three consolidated cases, about 180 property owners allege that their homes were destroyed or their properties damages by fires caused when the Hurricane Sandy storm surge came into contact with LIPA’s still live power lines. The property owners allege that this damage was foreseeable and, thus, LIPA was negligent in not shutting down the power grid before the storm.

Supreme Court denied LIPA’s motion to dismiss the cases, holding that it was not entitled governmental immunity because running the power grid is an act within LIPA’s proprietary capacity. Power has traditionally been provided by the private section, the Court reasoned, and so LIPA’s actions could not be immune from the negligence suits.

The Appellate Division, Second Department affirmed, with one Justice dissenting. The majority reasoned that LIPA was created by the Legislature as a substitute for what was formerly a private enterprise, and thus its actions in operating the power grid were proprietary, not governmental. As such, the majority held that LIPA was not immune from suit. The dissenter argued, on the other hand, that LIPA is a governmental entity and its preparations for and responses to the hurricane were governmental functions. The mere fact that the power grid used to be operated privately does not eliminate the governmental nature from LIPA’s actions, the dissenter reasoned.

So, what actions can be held to be in a public authority’s proprietary capacity that would subject it to normal tort liability? Are there any at all?  The Court of Appeals will hear arguments on those questions today.

The Appellate Division, Second Department’s order can be found here.


Court of Appeals Answers Second Circuit Certified Questions in World Trade Center Cleanup Suit Against Battery Park City Authority

After the 9/11 terrorist attack, first responders and volunteers spent weeks/months/years cleaning up the City from the debris and dust left after the World Trade Center towers fell. A few of the buildings that were cleaned up were owned by the Battery Park  City Authority, a public benefit corporation created by the Legislature to spur economic redevelopment in Battery Park. When the workers doing the cleanup began to fall ill because of the cleanup of toxic dust, they brought personal injury claims against the BPCA in federal court for negligence and violations of NY Labor Law §§ 200 and 241(6) for failing to provide a safe workplace.

The plaintiffs’ claims were dismissed on July 29, 2009, however, for failure to timely serve a notice of claim pursuant to the Public Authorities Law. Afterwards, the New York Legislature enacted “Jimmy Nolan’s Law,” which revived the time-barred claims against the BPCA and provided the plaintiffs with an additional year to serve the notices of claim. The eight plaintiffs then took advantage of the new law and sued BPCA again. BPCA moved for summary judgment dismissing the claims and challenging the constitutionality of Jimmy Nolan’s Law on due process grounds. The State intervened in defense of the statute and argued that BPCA, as a public benefit corporation, lacks capacity to challenge the constitutionality of the state statute.

As I previewed in more depth here, New York generally follows the traditional rule that municipalities and other arms of the State lack capacity to challenge the acts of the State as their creator, including state legislation. BPCA argued, however, that as a public benefit corporation it is different. Under the Court of Appeals’ decision in Clark-Fitzpatrick, Inc. v Long Is. R.R. Co. (70 NY2d 382, 387 [1987]), BPCA argued, “a particularized inquiry is necessary to determine whether—for the specific purpose at issue—the public benefit corporation should be treated like the State.”

The District Court (SDNY) held that the BPCA is an entity independent of the State because it “was created to be independent of the State in performing primarily private functions, funded primarily by private means,” through issuance of bonds (Matter of World Trade Ctr. Lower Manhattan Disaster Site Litig., 66 F Supp 3d 466, 472 [SDNY 2014]). Thus, the District Court concluded that BPCA had capacity to challenge the statute on due process grounds, and held that Jimmy Nolan’s Law violated the BPCA’s due process rights under the New York Constitution (see id. at 476).

On appeal, the Second Circuit did not find New York law on whether a public benefit corporation has capacity to challenge a state statute on constitutional grounds to be so clear. Instead, the Second Circuit held, it is “unclear whether New York courts have applied the [Clark-Fitzpatrick] particularized-inquiry test in the present context—that is, to determine whether a public benefit corporation should be treated like the State for the purpose of having the capacity to raise a constitutional challenge to a State statute” (Matter of World Trade Ctr. Lower Manhattan Disaster Site Litig., 846 F3d 58, 64 [2d Cir 2017]).

So, the Second Circuit certified two questions to the Court of Appeals:

(1) Before New York State’s capacity-to-sue doctrine may be applied to determine whether a State-created public benefit corporation has the capacity to challenge a State statute, must it first be determined whether the public benefit corporation “should be treated like the State,” see Clark–Fitzpatrick, Inc. v. Long Island R.R. Co., [70 N.Y.2d 382, 521 N.Y.S.2d 653] 516 N.E.2d 190, 192 ([ ]1987), based on a “particularized inquiry into the nature of the instrumentality and the statute claimed to be applicable to it,” see John Grace & Co. v. State Univ. Constr. Fund, [44 N.Y.2d 84, 404 N.Y.S.2d 316] 375 N.E.2d 377, 379 ([ ]1978), and if so, what considerations are relevant to that inquiry?; and

(2) Does the “serious injustice” standard articulated in Gallewski v. H. Hentz & Co., [301 N.Y. 164] 93 N.E.2d 620 ([ ]1950), or the less stringent “reasonableness” standard articulated in Robinson v. Robins Dry Dock & Repair Co., [238 N.Y. 271] 144 N.E. 579 ([ ]1924), govern the merits of a due process challenge under the New York State Constitution to a claim-revival statute?

Answering those two certified questions in Matter of World Trade Center Lower Manhattan Disaster Site Litigation (Faltynowicz et al v Battery Park City Authority and two others) (No. 119), the Court of Appeals held that public benefit corporations are no different than any other arm of the State for purposes of capacity to challenge a state statute. Thus, they must fall within one of recognized exceptions to the general incapacity rule before they can bring such a claim, and “no ‘particularized inquiry’ is necessary to determine whether public benefit corporations should be treated like the State for purposes of capacity” (Opn, at 5).

Public benefit corporations, which are vehicles for funding public projects, the Court held, have two purposes: (1) to “protect the State from liability” and (2) to “enable public projects to be carried on free from restrictions otherwise applicable” if the State was the project sponsor. In that way, public benefit corporations have an existence separate from the State. That separate existence for those limited purposes, however, does not mean that public benefit corporations, as agents of the State, fall outside of New York’s general rule that subdivisions of the State lack capacity to challenge the acts of their creator on constitutional grounds. Indeed, the “particularized inquiry” test applied in Clark-Fitzpatrick applies only to public benefit corporations’ relationships with private parties, not to its relationship with the State. Thus, the Court held, “with few exceptions, [New York’s] capacity bar closes the courthouse doors to internal political disputes between the State and its subdivisions,” such as those in this case (Opn, at 9).

Reviewing the second certified question, the Court concluded that the “serious injustice” standard and the “reasonableness” standard aren’t really that different, although the different terminology has been used in prior precedent. Clarifying, therefore, what standard applies to the merits of a due process claim to a claim-revival statute, the Court held “a claim-revival statute will satisfy the Due Process Clause of the State Constitution if it was enacted as a reasonable response in order to remedy an injustice” (Opn, at 32). As the Court explained, under that standard, a claim-revival statute will be constitutional if there was “an identifiable injustice that moved the legislature to act” and “the legislature’s revival of the plaintiff’s claims for a limited period of time was reasonable in light of that injustice” (Opn, at 30-31). A higher standard of review would be too much, the Court held.

A more heightened standard would be too strict. In the context of a claim-revival statute, there is no principled way for a court to test whether a particular injustice is “serious” or whether a particular class of plaintiffs is blameless; such moral determinations are left to the elected branches of government. While we have traditionally expressed an aversion to retroactive legislation, of which claim-revival statutes are one species, we have noted that the modern cases reflect a less rigid view of the Legislature’s right to pass such legislation. Nonetheless, there must first be a judicial determination that the revival statute was a reasonable measure to address an injustice

(Opn, at 31-32 [cleaned up]).

Judges Rivera and Wilson wrote separately to expand on their views of the issues. Judge Rivera explained her view of the second certified question that “unless it impinges on a separate vested property right and not merely the hope of avoiding litigation, a claim-revival statute does not violate due process, because defendant has no fundamental right to a statute of limitations in perpetuity” (Rivera, J., concurring, at 9). And Judge Wilson argued, on the first certified question, that the question was not one of capacity at all. Plainly, he thought, the BPCA has capacity to bring a suit.  What it doesn’t have, Judge Wilson explained, is prudential standing that would make the question justiciable. Judge Wilson would have gone farther too, to offer for the Second Circuit a view of the case on the merits: BPCA loses.

With those questions answered, the case will proceed back to the Second Circuit for a decision on whether BPCA has capacity to challenge Jimmy Nolan’s Law (after the Court of Appeals decision, there is likely zero chance that it does) and whether BPCA’s due process claims will succeed on their merits (even if BPCA had capacity, its claims would still likely fail under the Court’s newly clarified standard). So, in all likelihood, the plaintiffs’ personal injury claims will proceed in District Court with BPCA on the hook for damages.

The Court of Appeals’ opinion can be found here.

Court of Appeals January Session: Arguments of Interest for January 4, 2018

The Court of Appeals’ January Session continues on Thursday, January 4, 2018, with three cases on the calendar (the Court’s case summaries can be found here). The Court will hear arguments on the following issues: (1) when is a municipality an intended third-party beneficiary of a professional services contract between a professional and a property owner for the design and construction of a building for the municipality’s use, and when may the professional be held liable for breach of a tort duty independent of his contractual duties; and (2) when may a criminal defendant be held to have the “unlawful intent” to use a household knife, like a box cutter, as a weapon.

No. 8      Dormitory Authority of the State of New York v Samson Construction Co.

DASNY is the public authority that helps facilitate economic development projects for public agencies and private not-for-profits throughout the State.  It issues tax-free bonds and provides construction guidance to assist those projects, and often contracts with professionals and contractors to design and build the projects.  In this case, DASNY contracted with an architect to design and a contractor to excavate and pour the foundation of a $240 million, 15-story forensic laboratory for New York City. As the work was being done, however, the pile driving and other foundation work caused an adjacent building at Bellevue Hospital to settle, damaged the nearby streets and water and sewer infrastructure, and delayed the project by 18 months.

After DASNY and the City sued the architect and contractor, Supreme Court dismissed the City’s claims against the architect because it wasn’t a party to the professional services contract, but denied the architect’s motion to dismiss DASNY’s negligence claim as duplicative of its claim for breach of contract.

The Appellate Division, First Department modified, reinstating the City’s breach of contract claim because an issue of fact existed whether the City was the intended third party beneficiary of the professional services contract.  The First Department also agreed with Supreme Court that a professional could have an independent tort duty to perform its services “consistent with the generally accepted standard of professional care in its industry,” separate from its contractual duties, and a question of fact existed on that issue too.  One Justice dissented in part, and would have held DASNY’s tort claim to be duplicative of its claim for breach of contract, because DASNY was “essentially seeking enforcement of the bargain.”

My quick read is that I think the Appellate Division dissenter got it right. Where DASNY is really just a facilitator of the public project for the City and the City is the real beneficiary of the professional’s work, it seems to me that the City should be an intended third party beneficiary with rights to sue for breach of the contract. Similarly, I have a difficult time seeing the Court holding professionals to have a tort duty independent of its contractual duty in a case like this, where there really was no risk of “catastrophic harm,” as is generally required. We’ll see.

The Appellate Division, First Department’s order can be found here.

Court of Appeals: When a Court Dismisses an Uncertified Class Action, Notice to Class Members is Mandatory

Today, I’m happy to present a guest post by Jared Cook (@jkimballcook on Twitter), an attorney with the Rochester firm Adams Bell Adams, PC. Jared’s practice focuses on civil appeals, construction contract disputes, employment law, civil rights, and class actions. Contact him at

A plaintiff files a complaint with class action allegations, but before he files a motion for class action certification, the parties settle and agree to dismiss the case. New York’s class action rules say that the court can’t dismiss a class action without sending notice to the class members. Does the court have to send notice to the class members, even though a class was never certified? In a four-to-three decision in Desrosiers v Perry Ellis Menswear, LLC (Nos. 121 and 122), the Court of Appeals says yes.

The debate between the majority and the dissent is sort of a classic statutory interpretation debate, pitting textual and policy arguments against arguments that infer legislative intent from legislative inaction in the face of contrary case law. But this case is perhaps unusual because it is the “textualist” dissent that argues policy, while the majority opinion tells the parties to address policy concerns to the legislature, not the courts.

The Majority Opinion

Judge Fahey’s opinion for the majority starts with the statutory text. CPLR 908 says that “[a] class action shall not be dismissed, discontinued, or compromised without the approval of the court.” But because the text neither explicitly limits itself to certified class actions nor explicitly states that it applies to uncertified class actions, the majority finds the text inconclusive. It therefore looks to extra-textual sources to find evidence that the legislature understands CPLR 908 to apply to uncertified class actions.

First, it looks to legislative history. It notes in particular that ABA committees opposed the legislation that would become CPLR 908, and suggested an amendment that would have required notice to the class only after certification, but that the legislature declined to adopt that suggestion.

Second, it looks to federal class action law, noting that CPLR 908 was modeled on then-current federal rule 23(e). Most federal courts of appeal that had addressed the issue at the time that article 9 was enacted held that the notice provisions applied before certification as well as after certification.

Third, the majority looks to legislative inaction. It notes that even though the legislature did amend article 9 on other issues, the legislature made no effort to correct the First Department’s 1982 decision in Avena v Ford Motor Co. (85 AD2d 149 [1st Dept 1982]), which held that notice was mandatory before certification. Nor did it act to bring CPLR 908 into conformity with federal class action law after Congress amended Rule 23(e) in 2003 to require notice only for post-certification dismissals. Based on all this, the majority concludes that the legislature’s understanding of CPLR 908 is that it applies to uncertified class actions as well as certified class actions.

Finally, the majority dismisses policy-based arguments against applying CPLR 908 to uncertified classes, stating that such issues should be addressed to the legislature.

The Dissent

But while the majority sees it as a question of whether uncertified classes are an exception from CPLR 908, the dissent sees it as a question of whether an uncertified class action is even really class action at all. The dissent argues that the term “class action” can only mean “certified class action,” because a “class action” cannot exist until the court adjudges it to satisfy the class action prerequisites set out in article 9. The dissent thus finds fault with the majority’s conclusion that the statutory text is ambiguous in the first place.

The dissent then makes a doctrinal argument that it is a basic principle of class action law that no court can order relief for class members without an order certifying a class and giving notice to class members, and that an order giving notice to members of an uncertified class violates this principle because it provides them with a form of relief. It then makes three related practical policy arguments: first, that a pre-certification notice is meaningless because all it does it tell class members that another person’s claim is being settled by a private agreement that they are not party to and that does not affect their rights; second, that without a class certification order, it will be difficult to even know who the class members are; and third the effect of notice is to essentially identify more clients for the plaintiff’s attorneys at the expense of the court and the defendants.

Finally, the dissent attacks the Avena decision itself. It notes that Avena rests on the idea that class representatives and class counsel have fiduciary duties to absent class members, but the dissent questions whether those fiduciary duties do in fact exist before certification, and notes that Avena cited nothing to support that point. It also attacks the majority’s reliance on federal law, because even under the former Rule 23(e), federal courts held that pre-certification notice was discretionary, not mandatory.


Personally, I think the dissent’s reading is more natural in the context of article 9, but I’m not convinced that it’s entirely free from ambiguity—even Judge Stein has to add words to the statute to make his reading unambiguous: he draws a distinction between “purported class actions” (i.e. uncertified classes) and “actual class actions”(i.e. certified class actions). I’m also not entirely convinced by the dissent’s doctrinal/policy arguments. Sure, courts don’t normally order relief for members of classes that don’t get certified, but that doesn’t mean that members of uncertified classes get no relief from class actions. The statute of limitations is normally tolled on the claims of members of a class from the moment the complaint is filed, and putative class members get the benefit of that toll even though the class isn’t yet certified. It isn’t “meaningless” to be informed that you may have a claim on which the statute of limitations is now running. And the concern about identifying class members is always an issue—even in certified classes. A class definition doesn’t become self-executing just because it’s in a class certification order rather than in a complaint. My gut says that the dissent’s third policy argument is what’s really driving the decision: it finds the idea of class action attorneys being able to find new clients from the class notice to just be unseemly.

So what are the practical implications of this decision?

Well, requiring notice to class members even before certification makes pre-certification settlements more expensive and slower. It also makes them more risky: even if the parties do settle the class representative’s claims, an employer or other class action defendant is more likely to face the same class action rebooted a new class representative recruited from the other putative class members who have been notified of the dismissal. This could discourage class action defendants from early settlement with class representatives, but at the same time it may actually encourage class-wide settlement by making it less attractive to simply pick off the lead plaintiff, based on a gamble that the plaintiffs’ attorneys won’t be able to find another class member to pick up the fallen spear and continue the fight. If the employer has to go through notice to class members anyway—and thus risk provoking another class member to become a new class representative, the employer might as well get a release of the class-members’ claims.

On the other hand, this decision might encourage plaintiffs to accept early individual settlements. A class representative and her counsel may often have to choose between a good individual settlement offer and pursuing classwide relief. If the attorneys are serious about pursuing a class action, this can create tension between the interests of the class and the interests of the class representative. Requiring notice to class members buys the class a measure of insurance by making it more likely that the attorneys may be able to find a new class representative. This rule may thus free class action attorneys and plaintiffs to accept attractive individual settlements without entirely giving up forever on classwide relief.

But if plaintiff’s attorneys are not serious about pursuing a class action, this rule should make them think carefully about the decision to include class action allegations in the first place. It may sometimes be tempting for plaintiffs’ attorneys to include class action allegations as a bargaining chip to leverage settlement of an individual plaintiff’s claims. After all, it usually costs nothing to include allegations that you can agree to dismiss later. But with this rule, class action allegations cannot simply be dismissed to sweeten the deal, and the extra cost, time, and publicity of mandatory notice may actually make quick individual settlement harder, not easier. So this decision may discourage class action complaints in borderline cases.

One unanswered question this decision leaves is whether there are other ways to get around CPLR 908. Could attorneys trying to craft a settlement without notice avoid CPLR 908 by jointly moving to strike the class action allegations from a complaint, or to file an amended complaint without class action allegations? My gut says probably not, but from a strict textualist point of view, there’s at least an argument that striking class action allegations or removing them by amending the complaint is not “dismiss[ing], discontinue[ing], or compromise[ing]” a class action, but simply rendering it not a class action, thus leaving it free to be “dismissed, discontinued, or compromised” without class notice. Of course, if this decision stands for the principle, contrary to the dissent’s intuition, that class action attorneys have fiduciary duties to absent class members from the moment they file the complaint, rather than from the moment of class certification, a court could view that kind of creative tactic as a violation of that fiduciary duty.

The Court of Appeals’ opinion can be found here.

Court of Appeals January Session: Arguments of Interest for January 3, 2018

The Court of Appeals’ January Session continues on January 3, 2018 with three cases on the argument calendar (the Court’s case summaries can be found here). The Court will address the following issues today: (1) whether the New York City Housing Authority arbitrarily denied a son succession rights to his deceased mother’s apartment after he had lived with her, without NYCHA’s permission, to care for her during her failing health; (2) can a criminal defendant be convicted of conspiracy to fire-bomb a home where he was present at gang meeting when the plan was discussed and he knew the details of the plan, but was arrested for unrelated crimes before the arson took place; and (3) does the continuing treatment doctrine save a medical malpractice action from the expiration of the statute of limitations where a patient continues to see the doctor for a specific issue even if more than 2 1/2 years lapses between treatments.

No. 5     Matter of Aponte v Olatoye

Jonas Aponte was a good son. After his mother was diagnosed with advanced dementia and her doctors told him it was unsafe for her to live on her own, he moved into her apartment in NYCHA’s Sedgwick Houses in the Bronx to take care of her. NYCHA, however, denied him permanent permission to live in the one-bedroom apartment because it would “create overcrowding conditions.” Although NYCHA was fully aware of the mother’s health condition, it denied a second request to add Aponte as a permanent occupant of the apartment, and also denied his request to keep the apartment pursuant to succession rights after his mother passed away.

After Supreme Court dismissed Aponte’s challenges to the NYCHA determinations, the Appellate Division, First Department reversed, with two Justices dissenting. The majority held that the NYCHA denial of succession rights was arbitrary and capricious because it never considered the mother’s genuine disability, and put Aponte in “an unacceptable Catch-22 — a request to add an additional family member will almost always result in overcrowding [if] NYCHA fails simultaneously to consider transferring the applicant to a larger apartment.” Because, the Court held, NYCHA never gave Aponte or his mother a chance to show what would have been a reasonable accommodation for the mother’s disability, NYCHA’s denial of succession rights can’t be held rational.

The dissenters, on the other hand, would have upheld NYCHA’s determination because Aponte was never an authorized occupant of the apartment for the required one-year period before her death.  Without that precondition, Aponte wasn’t entitled to succession rights to the apartment.

To me, it seems a simple case. NYCHA never really considered the documented need for Aponte to live in his mother’s apartment to care for her, and thus should be estopped from claiming that he didn’t acquire succession rights.  But, I’m not on the Court of Appeals, and it will now have the chance to decide.

The Appellate Division, First Department’s order can be found here.


Court of Appeals January Session: Arguments of Interest for January 2, 2018

Happy New Year! After about a six week layoff, the Court of Appeals’ argument calendar resumes on Tuesday, January 2, 2018 for the first day of the January Session.  The Court will hear arguments today in four cases on the following issues: (1) what is the appropriate standard to be applied for disclosure of private social media posts during discovery; (2) what is the scope of the term “accident” under Retirement and Social Security Law § 363, which provides enhanced pension benefits for police officers and firefighters who are “physically or mentally incapacitated for performance of duty as the natural and proximate result of an accident” while on duty; and (3) whether youthful offender adjudications can be considered when assessing a sex offender’s risk level under the Sex Offender Registration Act.

No. 1     Forman v Henkin

When you post things to social media, whether it’s to Facebook, Twitter, or Instgram, you know that your posts are presumptively open to the public. Unless you restrict the privacy settings of your accounts, anyone can go on your Facebook page or Twitter feed and see, save, or record what you posted. But what about when you do restrict access to your account? Are those posts still available for discovery in litigation?  That’s the question that the Court of Appeals will face in arguments today.

In Forman, Kelly Forman sued Mark Henkin for injuries she suffered when she fell off one of his horses while riding in a state park on Long Island. Forman alleged that the leather strap attaching a stirrup to the saddle broke and caused her to fall. She claims that she suffered a traumatic brain injury that caused “cognitive deficits, memory loss, inability to concentrate, difficulty in communicating, and social isolation.” Although she was an active Facebook user at the time, about a year after her fall, she deactivated her account. Nonetheless, in discovery, Henkin sought an order compelling her to give him unrestricted access to her Facebook account, including posts from the non-public portion of her account.

Supreme Court granted the motion, in part, and ordered that Forman produce some private posts from her Facebook account, “including all photographs of herself that she privately posted after the accident, except those involving nudity or romantic encounters, and also the timing and length, but not the content, of her private Facebook messages.”

The Appellate Division, First Department, modified the order, however, on a 3-2 vote. The majority vacated the portion of the order requiring production of the private Facebook posts, except for any photos that she intended to use at trial. The majority cautioned that mere speculation that some of the private posts might be relevant is an insufficient basis to require production. The dissenters, however, argued that the majority put too high a burden on discovery of private social media documents. Case law over the last few years has tended toward allowing discovery, they said, and Supreme Court’s order was a proper balance under CPLR 3101(a).

The Court of Appeals will now hear arguments on this interesting issue, which will undoubtedly have great impact in personal injury, employment discrimination, and many other types of litigation throughout the state.

The Appellate Division, First Department’s order can be found here.


Court of Appeals Holds Reinsurance Agreements Must Be Interpreted Like Any Other Contract

Reinsurance is insurance for insurers. Big money insurers often seek to defray their risk by paying a reinsurer to cover some of their liability for big payouts. For example, if an insurer issues a $10 million business policy, a reinsurance policy might cover half of that. So if a $10 million claim is paid by the insurer, the reinsurer would reimburse the insurer for $5 million of the cost.

The question is, though, if the reinsurer’s liability is capped at $5 million, does that cap automatically include litigation defense costs as a matter of New York law? In Excess Insurance Co. Ltd. v Factory Mutual Insurance Co. (3 NY3d 577 [2004]), the Court of Appeals interpreted a facultative reinsurance policy (reinsurance of a single insurance policy) to hold that the parties had agreed to limit the reinsurer’s total liability, including defense costs, to the stated limit. The Excess decision was based on the terms of the specific reinsurance policy the Court interpreted, but it has been interpreted by other courts as a holding that under New York law, all reinsurance agreement liability limits include not only losses under the insurance policy, but also all defense costs.

In Global Reinsurance Corporation of America v Century Indemnity Co. (No. 124), which I previewed here, the Court of Appeals was asked to clarify the scope of its decision in Excess. In Global, Global issued reinsurance certificates to Century to reinsure insurance policies that Century had issued to Caterpillar Tractor Company.  After Caterpillar was sued in numerous cases relating to alleged exposure to asbestos in Caterpillar’s products, Century was obligated to pay for Caterpillar’s defense expenses in addition to paying up to the liability limits of its policies. Global and Century then began to fight over the extent of Global’s liability under the reinsurance certificates.

The U.S. District Court for the Southern District of New York adopted Global’s interpretation of the reinsurance certificates that its total liability cap included defense costs. See Glob. Reins. Corp. ofAm. v. Century Indem. Co., No. 13 Civ. 06577, 2014 WL 4054260, at *4‐7 (S.D.N.Y. Aug. 15, 2014).

Noting that the Court of Appeals had not explicitly spoken on this issue, the Second Circuit certified the question to the Court of Appeals, asking whether the Court’s decision in Excess imposed a presumption or a rule of construction that would always include defense costs within a total reinsurance cap.

The Court of Appeals cleared up the confusion over its Excess decision, holding that reinsurance agreements should be interpreted like any other contract. Excess did not impose any presumption that defense costs are always included in a total reinsurance liability cap. That question will depend on the particular terms of the agreement. As the Court put it,

The foregoing principles do not permit a court to disregard the precise terminology that the parties used and simply assume, based on its own familiar notions of economic efficiency, that any clause bearing the generic marker of a “limitation on liability” or “reinsurance accepted” clause was intended to be cost-inclusive. Therefore, New York law does not impose either a rule, or a presumption, that a limitation on liability clause necessarily caps all obligations owed by a reinsurer, such as defense costs, without regard for the specific language employed therein.

That makes sense. A reinsurance policy is like any other contract. The parties can bargain for particular terms and their intentions should control. If there’s one lesson to come out of the Court’s decision in Global, it’s to make sure that your reinsurance policy is very clear about what is included in any total liability cap. If defense costs are capped too, then say that in plain language. Otherwise, you too could be spending boatloads of money litigating over whether a few words in the agreement mean that the reinsurer has unlimited liability for defense costs, even over and above the total liability cap. And that’s no fun at all (except for the attorneys).

The Court of Appeals’ opinion can be found here.

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