Current Developments in the US District Court for the
Eastern District of New York
Posted: January 17, 2014

Reasonable Attorneys’ Fees Awarded Under Fee Shifting Statute May Be At Southern District Market Rates But Must Account For Fees Already Recovered From Other Defendants

In Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co. Ltd., 05 CV 0453 (E.D.N.Y. Dec. 30, 2013), Judge Brian Cogan granted in part plaintiffs’ request for attorneys’ fees under the Clayton Act, to the extent of awarding $4,093,163.35 in fees, and no costs, out of the $13,724,641.75 in fees and $1,363,307.68 in costs requested.  The case was a seven-year, multi-district anti-trust class action against Chinese vitamin C manufacturers, in which a group of direct purchasers alleged that the defendants participated in a cartel to fix prices and limit the output of vitamin C exported to the United States.  Plaintiffs settled with two of the four main defendants and ultimately recovered a judgment, after a jury trial and trebling of the damages, of $153,300,000 against defendants Hebei Welcome Pharmaceutical Co. and North China Pharmaceutical Group Corp.  Plaintiffs were represented by Boies, Schiller & Flexner LLP and Susman Godfrey LLP.

Judge Cogan accepted plaintiffs’ counsel’s hourly rates of $375-$980, even though they were higher than the rates customarily charged by lawyers with offices in the District, due to the complex and demanding nature of the case. The Court said the case involved factual and legal issues that “have never been considered in this district and very possibly would be unique anywhere,” and required that “extraordinary” resources “be brought to bear to prosecute the case.” Slip op., 3.  In the Court’s view there was “no plaintiffs’ class action firm with the capacity to deal with a case of this magnitude resident within this district.”  Slip op., 4.  The Court said that because it was not a “close question” whether to apply the forum rate or counsel’s national rates, there was no need for plaintiffs to offer independent evidence that their counsel’s national rates were reasonable.  Rather, the Court relied on its own knowledge of market rates in the relevant community, which includes the Southern District, and said that plaintiffs had bolstered their reasonableness showing by demonstrating that counsel’s proposed rates were the same as the rates charged to clients paying on an hourly basis, and that similar or higher rates had been approved by courts in other complex class action litigation.

Virtually the entire reduction in the fees and the complete denial of the costs was in order to avoid what Judge Cogan viewed as double counting, in light of plaintiffs’ prior receipt of a substantial amount in fees and costs from the settling defendants.  Plaintiffs sought the “full amount of their fees in this case even though a substantial portion of those fees have been paid” as a result of the settlements, on the theory that “they are entitled to an enhancement of their lodestar calculation and that in lieu of that, I should not apply a credit in favor of defendants to their fee recovery.”  Slip op., 11.  Judge Cogan rejected plaintiffs’ argument that relied on a “linkage between an enhancement and an offset” for fees already recovered, because plaintiffs’ proposal would result in an enhancement of “over 100%.”  He concluded that not offsetting the fees plaintiffs had already received would result in a windfall to them at odds with the Clayton Act’s allowance of a “reasonable” fee award.

Posted: January 7, 2014

PSLRA’s Safe Harbor

In In re Symbol Techs., Inc. Securities Litigation, 05 CV 3923 (E.D.N.Y. Dec. 5, 2013), Judge Denis Hurley denied defendants’ motion to dismiss the consolidated amended class action complaint.  The case involves Symbol Technologies, a manufacturer of inventory management products that was the subject of a government investigation into “systematic accounting fraud, including the manipulation of inventory levels to artificially inflate reported revenues” prior to the class period.  That government investigation led several former executives to plead guilty to criminal charges and the company to agree to consent decrees enjoining future violations of the antifraud provisions of federal securities laws.

At issue in the case were statements by the company and its senior executives to the effect that the company had put its financial improprieties behind it.  According to the complaint, those statements misrepresented Symbol’s financial results, the efficiency of its internal controls, and improvements in its corporate governance, which led to an inflation of Symbol’s stock price that damaged plaintiffs when the truth emerged.  Judge Hurley had little trouble concluding that the consolidated amended complaint sufficiently alleged the necessary elements of a securities fraud claim:  misrepresentations by defendants, materiality, falsity, scienter, and loss causation.

Of interest to us was his analysis of defendants’ claim that the Private Securities Litigation Reform Act’s “safe harbor” provision applied to defendants’ revenue projections.  The lead plaintiff argued that the safe harbor provision did not apply because of an exclusion for issuers who had “been the subject of a judicial or administrative decree or order.”  In short, plaintiff asserted that Symbol’s consent decrees deprived the company of safe harbor protection while defendants asserted that the consent decrees did not constitute a “judicial or administrative decree or order.”  In a case of first impression—neither the parties nor the Court found direct support for either side’s position—Judge Hurley found defendants’ argument to be a “distinction without a difference” and held the exclusion to apply.

Posted: December 23, 2013

Court’s Misreading Of Data Leads To Successful Motion For Reconsideration

In In re Gentiva Securities Litigation, 10 CV 5064 (E.D.N.Y. Dec. 10, 2013), two individual defendants and the defendant corporation moved for reconsideration of Judge Arthur D. Spatt’s order denying their motion to dismiss federal securities claims.  The case is a class action alleging that Gentiva, a health care provider, artificially inflated its stock price through a scheme that involved ordering unnecessary medical care for clients, and then billing the federal government for these illegitimate expenses.  At issue was whether the plaintiff class had properly pleaded scienter.

One of the individuals, Potapchuck, asserted that the claims against him did not meet Section 10(b)’s scienter requirement because he sold his shares pursuant to a “10b5-1 plan,” under which shares are divested at predetermined times.  Potapchuck pointed out that he sold only 12% of his shares, if the 10b5-1 trades were disregarded.  That fact made the difference on reconsideration.  After commenting that “Defendants should have specifically quantified the number of 10b5-1 [trades] in their prior motions to dismiss, rather than relying on the Court to comb through the Defendants’ financial records,” the Court found that the relatively small amounts at issue—just 12% of Potapchuck’s shares, resulting in $300,000 in net profits—did not support an inference of scienter.  The Court reached a different result regarding the other individual defendant, Malone, who sold 99% of his shares during the class period for approximately $2.14 million (and none pursuant to 10b5-1 plans).  Those trades were sufficient to plead scienter against Malone.

The fact that only one corporate insider engaged in allegedly suspicious sales caused the Court to change its mind about the Section 10(b) claim against Gentiva as well, which was dismissed on the ground that an inference of its fraudulent intent could not be shown.  Thus, the Court reversed course on reconsideration and dismissed two of the three defendants, while upholding claims against the third.

Posted: December 19, 2013

Affordable Care Act Violates Non-Profits’ Religious Beliefs

In The Roman Catholic Archdiocese of New York. v. Sebelius, 12 CV 2542 (E.D.N.Y. Dec. 13, 2013), Judge Brian M. Cogan held that the Patient Protection and Affordable Care Act (the “ACA”) violated certain plaintiffs’ core religious beliefs under the Religious Freedom Restoration Act (“RFRA”).   The ACA requires that group health insurance plans cover certain preventative services, including contraception, sterilization and related counseling (the “Mandate”).

Certain religious employers, primarily churches such as plaintiffs the Archdioceses of New York and the Diocese of Rockville Center (the “Diocesan Plaintiffs”), are exempt from the Mandate.  By recent regulation, religious non-profits, including the four other plaintiffs (the “non-exempt Plaintiffs”) who are affiliated with the Roman Catholic Church, were not required to pay for a health plan that covered contraceptive services; instead, an eligible entity must provide its issuer or third party administrator (“TPA”) with a self-certification form stating its objection to the Mandate on religious grounds.  The TPA is then required to provide contraceptive services free of charge to plan participants.  Plaintiffs claimed that, notwithstanding the exemptions that applied to them, the Mandate required them to violate their religious beliefs which prohibited them from providing, facilitating or sponsoring the provision of contraception, sterilization or abortion-inducing services.   Plaintiffs moved for summary judgment on all of their claims under RFRA, the Administrative Procedures Act, and the Establishment, Free Exercise, and Free Speech Clauses of the First Amendment.  Defendants cross-moved for summary judgment.

Since the Diocesan Plaintiffs were exempt from the Mandate, the Court found that they would not have suffered a substantial burden on their religion under the RFRA; and since these claims failed under the more lenient standard of the RFRA, they could not succeed on their remaining constitutional claims.  Accordingly, the Court granted defendants summary judgment with respect to the Diocesan Plaintiffs’ claims.  As described below, the non-exempt plaintiffs were entitled to summary judgment and a permanent injunction against enforcement of the Mandate as to them.  The Court found the remaining constitutional claims moot.

In a bizarre twist, late in the briefing of these motions after almost 18 months of litigation, the government realized that all of the plaintiffs’ health plans were exempt under ERISA, which provided the Department of Labor with authority to enforce the Mandate.  The government belatedly argued that since it had no authority to require the plaintiffs’ TPAs to provide contraceptive coverage, the plaintiffs lacked standing because their TPAs could not be forced to provide coverage for any objectionable services.  While noting that it is unclear how citizens like plaintiffs could know what the ACA requires if the government itself was unsure, the Court found that even if the government had finally come to an accurate understanding of how to apply the ACA and the Mandate, plaintiffs’ alleged an injury-in-fact was sufficient for Article III standing.

Plaintiffs suffered an injury because the Mandate made them complicit in a plan to provide coverage to which they had a religious objection, regardless of whether it provided contraceptive coverage.  The government argued that since all plaintiffs have to do is to complete a form stating their religious objections to contraceptive coverage, completing the form was a de minimis act and placed no burden on their religion.  However, in deciding whether a law imposes a “substantial burden”, the RFRA explicitly states (and the Supreme Court’s Free Exercise cases equally state) that a court may not consider the centrality of a particular religious practice to an adherent’s faith.  Here, the ACA required the non-exempt plaintiffs to complete and submit a self-certification, which authorized a third-party to provide the contraceptive coverage.  According to these plaintiffs, the self-certification was a compelling affirmation of a repugnant belief.  Thus, the Court rejected what it called the government’s “it’s just a form” argument and found that since the monetary fines for non-compliance were substantial the Mandate compelled the non-Diocesan plaintiffs to perform acts that were contrary to their religion.

Because the Court found that the non-exempt plaintiffs had demonstrated a substantial burden on their religious beliefs, the government then had to demonstrate that the Mandate was the least restrictive means of furthering a compelling governmental interest.  The Court first noted that every Circuit court presented with a similar argument in connection with RFRA challenges had held that the Mandate failed the RFRA’s test of strict scrutiny.

The Court rejected the government’s argument that it had a compelling interest in uniform enforcement of the Mandate that would be undermined by granting plaintiffs the exemption they sought.  First, the Mandate was not uniform because tens of millions or people qualified for one of various exemptions.  Second, the government’s belated realization that the ACA did not require plaintiffs’ TPAs to provide contraceptive coverage undermined any claim that imposing the Mandate served a compelling governmental interest, because in this case, the Mandate would force plaintiffs to fill out a form that violated their religious beliefs even though it ultimately had no effect whatsoever.  The Court concluded: “A law that is totally ineffective cannot serve a compelling interest.”  Finally the Court noted that the Mandate was far from the least restrictive means by which the Government could achieve the goals of the ACA and the Mandate to improve public health and equalize women’s access to healthcare.  Among many other options, the government could avoid requiring plaintiffs’ participation by providing the contraceptive services or insurance coverage directly to plaintiffs’ employees.

Posted: December 16, 2013

Deadline For Making Claim For Attorneys’ Fees In FRCP 54 Does Not Apply To Claims For Appellate Fees

In Long Island Head Start Child Development Services, Inc., v. Economic Opportunity Commission, 00 CV 7394 (E.D.N.Y. Dec. 5, 2013), Judge Arthur Spatt held that a claim for appellate attorneys’ fees under ERISA’s fee shifting provisions is not governed by the 14-day deadline set forth in Federal Rule of Civil Procedure 54(d)(2)(B).  Under that Rule, a motion for an award of attorneys’ fees must be brought “no later than 14 days after the entry of judgment.”  The defendant had appealed an adverse judgment to the Second Circuit and lost.  The Circuit issued its mandate on June 10, 2013.  Two and a half months later, on August 29, 2013, the plaintiffs moved under ERISA to recover their appellate attorneys’ fees.

The defendants argued that the motion was out of time under Rule 54(d)(2)(B), and should be denied, because it was made more than 14 days after “the entry of judgment.”  The court examined whether the word “judgment” used in the Rule includes an appellate judgment.  The court noted that Rule 54(a) defines judgment as a “decree and any order from which an appeal lies,” and that, as a Northern District of Texas court had ruled, an appellate judgment could qualify because “a judgment from the Court of Appeals can be appealed to the United States Supreme Court.”  Slip op. at 5.  The court ultimately rejected that view, however, based on an earlier Eastern District case that decided the same question under the fee-shifting provisions of Title VII, and held that since Title VII contained no deadline, and since neither the Federal Rules of Appellate Procedure nor the Second Circuit’s local rules contained a deadline, the fee motion had only to be made within a reasonable period.

Reasoning that ERISA also had no deadline for making a motion for appellate fees, the Court ruled that motions under ERISA’s fee-shifting provisions likewise had only to be made “within a reasonable of time after the circuit’s entry of final judgment.”  Slip op. at 8.  Other fee shifting statutes are unlikely to be far behind.  (As for the two and a half months it took plaintiffs to make their motion, the Court held the time was not unreasonable because it was only two days after the defendants’ right to petition for U.S. Supreme Court review had lapsed.)

Posted: December 12, 2013

Default Judgment Not Vacated Where Failure To Respond Was Willful

In S.E.C. v. MedLink International, Inc., 12 CV 5325 (E.D.N.Y. Nov. 25, 2013), Judge Leonard D. Wexler denied an individual defendant’s motion to vacate a default judgment after he and his counsel apparently played a cat-and-mouse game of engaging with the SEC, only to disappear and fail to respond to communications.  The underlying case involved a year-long investigation by the SEC regarding MedLink’s allegedly false and misleading 10-K:  the 10-K supposedly included the electronic signature of MedLink’s auditor notwithstanding the fact that the auditor had not completed its audit.

Counsel for Defendant Aurelio Vuono originally appeared on his behalf and interacted with the SEC to discuss settlement issues, but failed to respond to the SEC’s subsequent inquiries.  Counsel then reappeared, indicating he would accept service of a complaint on Vuono’s behalf.  Vuono never answered the complaint, however, and the SEC moved for default.  Vuono himself then surfaced and told the SEC he would defend himself pro se.  He then failed to respond to the motion seeking default judgment, which was ultimately entered.

Faced with these facts, the Court denied Vuono’s motion.  First, Wexler held that Vuono had been served with the complaint based on his counsel’s representations to the SEC that he would accept service, rejecting his argument that he had not been served.  Second, Vuono’s failure to respond to the complaint under the circumstances was willful.  Last, Vuono had not established a meritorious defense because his motion “misstate[d] applicable law and raise[d] irrelevant points.”

Posted: December 6, 2013

County Should Have Returned Firearms Despite Gap In State Law

In Dudek v. Nassau County Sheriff’s Department, 12 CV 1193 (E.D.N.Y. Nov. 19, 2013), Judge Pamela Chen was called upon to resolve what one state court had called a “legislative oversight”:  family court judges have statutory authority to confiscate firearms from individuals involved in domestic incidents, but do not have explicit statutory authority to order their return.  As a result, when plaintiff, who had been involved in a domestic incident resulting in the confiscation of his firearms, asked the Nassau County Sheriff to return his weapons after his wife withdrew the petition, the sheriff refused to do so without a court order.  Plaintiff filed suit seeking declaratory, injunctive, and monetary relief.

Faced with defendants’ motion to dismiss, the Court ruled that the apparent legislative oversight did not divest the sheriff’s department, or the New York Supreme Court, of authority to return the firearms.  While permitting claims to go forward against Nassau County and particular officers who were personally involved with plaintiff, it dismissed claims against certain subordinate officers whose personal involvement was not apparent from the record and against the sheriff’s department, which was merely an arm of the County.

The non-dismissed officers were deemed to have qualified immunity, however, because their conduct did not violate “clearly established statutory or constitutional rights of which a reasonable person would have known.”  The Court held it was “incorrect, but not unreasonable” for the officers to have believed that they could not return the weapons absent a court order.  This ruling immunized the officers from monetary claims.  In sum, Judge Chen declined to dismiss declaratory and injunctive claims against the individual officers and allowed discovery on the Monell claim against the County, which was subject to claims for monetary damages.

Posted: December 3, 2013

Claim For Derivative Citizenship Through Father Denied Due To Parents’ Informal Separation

In Moreno v. Holder, No. 13 CV 1285, (E.D.N.Y. Nov. 6, 2013), Judge William Kuntz denied a pro se petitioner’s claim of nationality based on derivative citizenship.  The petitioner was born in Panama to Panamanian parents who later became U.S. citizens and ultimately settled in New York.  The government unsuccessfully initiated removal proceedings against the Petitioner in 2004 following convictions for attempted petit larceny and attempted robbery in the second degree.  The government again initiated removal proceedings against Petitioner in 2010 following his conviction of criminal possession of crack cocaine.

Petitioner defended the latter removal proceeding on the ground that he derived citizenship as a child through his father.  Since Petitioner had not reached age eighteen at the time the Child Citizenship Act of 2000 was enacted, the Court applied the pre-existing immigration statute, 8 U.S.C. § 1432.  Under that statute, the only avenue by which Petitioner could claim derivative citizenship was through “the naturalization of the parent having legal custody of the child when there has been a legal separation of the parents.”

The problem for Petitioner was that his parents had not legally separated, either under New York or Panamanian law, each of which required formal documentation.  As a result, the testimony of Petitioner’s father to the effect that they had separated “between three and nine times over the course of their marriage, sometimes for as long as one-and-a-half or two years” was held insufficient.  Absent a legal separation, there could be no derivative citizenship through Petitioner’s father.

Posted: November 13, 2013

Court Invokes “Inherent Powers” To Order Sanctions For Negligent Spoliation Of Evidence

In Rodgers v. Rose Party Functions Corp., No. 10 CV 4780 (E.D.N.Y. Nov. 12, 2013), Chief Magistrate Judge Steven Gold granted the plaintiff an adverse inference as a sanction for the defendant’s negligent failure to preserve a key piece of evidence.  Plaintiff Tiffani Rodgers was injured when she slipped on a flight of stairs on the premises of defendant Rose Castle, a catering hall.  She thought her fall was caused by liquid or debris on the stairs.  The hall’s security personnel called an ambulance for her, and she was taken to the hospital.  Two days after the accident, Rodgers called Rose Castle seeking the defendants’ insurance information.  In discovery, it emerged that a video camera on the stairway captured the plaintiff’s fall, but that the footage generally recycled every two weeks and the footage of the fall was not saved.

Judge Gold held that the defendants were negligent in failing to preserve the videotape because they should have anticipated litigation on the day of the accident, when Rodgers was rushed to the hospital in an ambulance called by the hall’s own security guard, or at the very latest, two days later when Rodgers called about the defendants’ insurance information, which made “clear that plaintiff was seeking compensation for her injuries from defendants’ insurance carrier.”  Judge Gold ruled that the “culpable state of mind” requirement for spoliation sanctions is satisfied by negligent destruction of evidence, and that the plaintiff did not have to show bad faith or gross negligence.  Rather, “[o]nce a duty to preserve evidence arises, any destruction of that evidence is, at a minimum, negligent,” and the destruction at that point, without more, reflects “a culpable state of mind.”  Slip op. at 5.

The Court said that sanctions were therefore warranted and the Court would impose them “pursuant to its inherent powers and even absent violation of a discovery order.”  Slip op. at 3.  As a sanction Judge Gold granted Rodgers an adverse inference instructing the jury that it may infer that the absent videotape would have corroborated the plaintiffs’ allegations and rebutted the defendants’.  The plaintiff didn’t have to present “extrinsic evidence” that the contents of the video “would have been favorable to her case,” as Judge Gold acknowledged was “generally” required.  Slip op. at 5.  Ouch.  But don’t tell a judge in the Eastern District you weren’t warned.  Any company that experiences a conceivably litigable incident had better suspend its document destruction or recycling procedures immediately.

Posted: November 12, 2013

Search Reasonable Even Though Police Mistaken Regarding Type Of Evidence Search Would Uncover

Judge Pamela Chen decided a case “all about chickens” in Santos v. Zabbara, 11 CV 2516 (E.D.N.Y. Oct. 18, 2013), where a police raid of plaintiff’s residence for “chickens,” code for cocaine, turned up no drugs but instead resulted in the seizure of real fighting chickens. Santos and his immediate family brought suit under 42 U.S.C. § 2516 against several police officers for their role in issuing and executing the warrant, claiming violation of their Fourth Amendment rights to be free from unreasonable searches and seizures.

A State Supreme Court judge had issued a warrant to search the “entire premises” of Santos’s home. The warrant was based on a police officer’s affidavit describing a web of drug dealing in the neighborhood, involving three of Santos’s brothers. The affidavit stated that the police believed evidence obtained through telephonic intercepts and direct surveillance showed that Santos’s brothers used his residence to store drugs and make sales – references to “roosters” and “chickens” were supposedly code for cocaine. The affidavit alleged that the police had probable cause to conduct an unannounced search of Santos’s residence for evidence potentially relevant to drug dealing.

The police raided Santos’s residence by entering without announcing and throwing flash bang explosive devices. In the backyard, an officer saw an extension cord running from the house to an outdoor shed, entering the shed he saw roosters who had their waddles removed and wore bracelets with razors around their legs. The police arrested Santos solely for possessing fighting roosters.

Judge Chen granted defendants’ motion for summary judgment dismissing the suit in its entirety. Santos argued that the search warrant violated the Fourth Amendment since the underlying affidavit omitted evidence that Santos was not involved in any illicit drug dealing. The Court found the fact that Santos did not participate in any drug-related activities was irrelevant since the critical element in a reasonable search is not whether the owner of the property is suspected of crime but, as here, that there is reasonable cause to believe that the specific things to be searched for and seized are located on the property.

The Court also rejected Santos’s argument that use of flash bang devices violated the Fourth Amendment. Judge Chen surveyed inconsistent circuit law and determined that the use of such devices is unconstitutional only where the users knew that serious injuries to individuals would, and did occur – conditions not present here. Finally, the Court found that since the search warrant authorized search of the “entire premises,” the search of the shed was reasonable. Further, the roosters and their razor-blade bracelets were in plain view in the shed, making it was reasonable for the officers to seize the roosters.