MEDIA

November 10, 2016

Supervised Release Condition, Arbitration Clauses, Preemption

Published in: New York Law Journal | volume 256

This column reports on several significant, representative decisions handed down recently in the U.S. District Court for the Eastern District of New York. In a case involving a defendant who had served his sentence for receiving child pornography, Judge Jack B. Weinstein vacated as unconstitutional a condition of supervised release that defendant not attend church services with minors present. In three separate cases Judges Roslynn R. Mauskopf, Pamela K. Chen and Frederic Block ruled on motions to compel arbitration. And Judge Chen held that the Organic Food Production Act of 1990 preempted state law claims alleging improper labeling of infant formula.

Bail Condition

In United States v. Hernandez, 09 CR 703 (EDNY, Sept. 20, 2016), where defendant had been convicted of receiving child pornography, 18 U.S.C. §2252(a)(2), Judge Weinstein held that a condition of supervised release prohibiting defendant from attending church services with minors present violated his First Amendment right to participate in religious rites.

Defendant, now 38 years old, pleaded guilty to receipt of child pornography and was sentenced in 2010 to five years in custody and five years of supervised release. In September 2014 he was released from prison and placed under supervision with various conditions.

Between his release date and August 2016, he was found to have had physical contact with minors while attending church services. He had developed a friendship with a minor female at his church and hugged several minors. As a result, he was automatically discharged from his sex-offender treatment facility. This placed him in violation of the supervised release condition that he participate in a treatment program.

At an August appearance, a magistrate judge ordered that defendant continue with the terms of supervised release, but imposed a bail condition that defendant “can’t attend church services where minor[s] are present.”

Weinstein modified that bail condition “so that defendant may attend religious services with minors present, but must not touch them and must seek advance notice from the Probation Department to attend services.” Slip op. 3.

As the court noted, prohibiting attendance at church services with a minor present “touches on two interests protected under the First Amendment: the right to associate and the right to exercise religion.” Slip op. 5. The court therefore had to determine whether the bail condition was reasonably related to sentencing objectives and did not unnecessarily restrict religious freedom. Prohibiting attendance at services with minors present, the court found, “is not the least drastic means of ensuring the public’s safety.” Slip op. 6.

Defendant’s father accompanies him to church and “helps ensure that defendant is following the condition of his release that he not interact with minors without supervision.” Slip op. 7. Defendant must seek permission from the Probation Department before attending church in the company of minors. His probation officer indicated he would ensure that defendant is accompanied by an adult at church and would alert the pastor to this condition. These precautions render the ban on attendance unnecessary. Slip op. 7.

The unlawful condition, moreover, impedes rehabilitation, a primary goal of supervised release.

The court modified the condition to balance defendant’s rights with the protection of minors: “It is reasonable to apply a condition that defendant not physically touch minors while attending church services, unless doing so is a part of his religious obligation.” Slip op. 7-8.

Arbitration Clauses

Three recent Eastern District decisions illustrate different issues arising from arbitration agreements.

The Federal Arbitration Act embodies strong federal policy in favor of arbitration. In granting a motion to compel arbitration, a court must find that an enforceable agreement exists and that the dispute falls into the scope of the agreement.

In Daskalakis v. Forever 21, 15 CV 1768 (EDNY, Aug. 25, 2016), Judge Mauskopf granted defendant’s motion to compel arbitration of employment discrimination claims even though the arbitration agreement omitted some procedural detail. In an employment agreement the parties agreed to resolve employment disputes through arbitration, whether based on common law or statute, including claims alleging discrimination and improper termination of employment.

Plaintiff began work as a male and, while working at Forever 21, transitioned to female. She alleged that she was discriminated against and ultimately fired on account of her transitioning. Although plaintiff admitted she signed the agreement, she argued that it was unenforceable because it was missing essential terms.

Mauskopf found the agreement to arbitrate valid and enforceable even though it did “not identify the arbitral forum or location, the identity of or method of selecting an arbitrator, the arbitration procedures, or the choice of law.” Slip op. 7. Parties can ask the court to appoint an arbitrator, and the arbitrator can determine the procedures for the arbitration. Slip op. 7.

In Favors v. Triangle Services, 15 CV 3817 (EDNY, Sept. 13, 2016), Judge Chen granted a motion to compel arbitration under a Collective Bargaining Agreement (CBA), which specifically provided for arbitration of statutory discrimination claims. The Supreme Court has held that a mandatory arbitration clause in a CBA is enforceable as to union members where the CBA “clearly and unmistakably” required arbitration of federal statutory claims and there is no congressional prohibition against arbitrating those claims. Here, arbitration was the “sole and exclusive remedy” for plaintiff to pursue.

In Wesler v. AT&T Corp., 15 CV 686 (EDNY, Sept. 30, 2016), Judge Block denied the motion of AT&T Corp. (AT&T) to compel arbitration based on a lack of mutual intent to enter into a contract that provided for arbitration of disputes unrelated to the services that AT&T Mobility, LLC (Mobility) agreed to provide to plaintiff. Plaintiff entered into a service agreement with Mobility. After the term of the service agreement expired, plaintiff began receiving unsolicited calls and text messages from AT&T related to an account in someone else’s name. AT&T and Mobility are affiliated corporations, but only Mobility was a party to the service agreement.

The arbitration clause was not limited to disputes concerning the service agreement. Rather, it covered any dispute with any Mobility affiliate and survived the end of the term of the service agreement. Block concluded a reasonable person would intend to agree to an arbitration clause connected to the Mobility service agreement. But because plaintiff’s claims relating to the unsolicited calls and text messages were not connected to that agreement, the arbitration clause was not enforceable.

Preemption—Organic Foods

In Marentette v. Abbott Laboratories, 15 CV 2837 (EDNY, Aug. 23, 2016), Judge Chen found state law claims that certain infant formulas were erroneously labeled “organic” to be preempted by the Organic Foods Production Act of 1990, 7 U.S.C. §§6501-6523 (OFPA).

Plaintiffs alleged that Similac Advance Organic Infant formula was improperly sold as, and bought by them as, organic when, in fact, it contained ingredients that are prohibited in organic products by federal law. Accepting the complaint’s allegations, Chen dismissed.

Plaintiffs conceded that the product had been certified as “Organic” by the U.S. Department of Agriculture, pursuant to the OFPA, through a USDA-accredited certifying agent. But they claimed that the certification was improper under the USDA’s standards. In the court’s view, state law claims challenging the certification would be inconsistent with OFPA’s stated purpose, “to establish national standards governing the marketing of certain agricultural products as organically produced products.” 7 U.S.C. §6501(1).

“Plaintiffs’ challenge to this labeling cannot be described in any way other than a direct challenge to the USDA-accredited certifying agent’s decision itself. The Court finds that such a challenge is preempted because ‘[t]o the extent state law permits outside parties, including consumers, to interfere with or second guess the certification process, the state law is an obstacle to the accomplishment of congressional objectives of the OFPA.” Slip op. 10-11, citing In re Aurora Dairy Corp. Organic Milk Mktg. & Sales Practices Litig., 621 F.3d 781, 795 (8th Cir. 2010).

Chen applied “conflict” or “obstacle” preemption, a principle invoked “where the challenged state law stands as an obstacle” to the purposes of Congress. Arizona v. United States, 132 S.Ct. 2492, 2500 (2012). While acknowledging that “obstacle preemption is a rare remedy that is commonly not a successful defense[,]” Chen found that it was designed for this precise situation, where “Plaintiffs’ claims solely and directly attack the federal certification of Defendant’s ‘Organic’ label.” Slip op. 17, fn. 22.