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Senator Elizabeth Warren always hits it on the nose with consumer protection issues and the American economy.
Here she is talking through the American cheating-based economy and student loan reform with David Letterman.
If these issues matter to you this is a must watch:
These days the most common claims of lending discrimination have been "reverse redlining" cases.
But the NY Attorney General is hot on the trail of apparently resurgent good-old-fashioned redlining discrimination. The AG filed a suit for discriminatory redlining practices against the parent company of Hamburg-based Evans Bank -- and has described the alleged redlining as a textbook example of an illegal redlining policy:
“This is classic redlining,” Schneiderman said, tracing his finger around the boundary. “If you had to make up a hypothetical to explain to law students what redlining is, you would use a map like this.”
Schneiderman also cited statistics showing that from 2009 to 2012, Evans received 1,114 applications for residential mortgages in the Buffalo metro area, but only four were from African-American applicants. He also said of those 1,114 applications, only eight came from the East Side and just one of those was from an African-American. Schneiderman said that competing banks were lending at much higher rates." (link)
Here's the relevant map of Evan's lending:
To be blunt, this map does very much look like it could be in a lending discrimination textbook.
Moreover, it looks like there's more good-old-fashioned redlining litigation to come:
“We are looking at other banks in other parts of the state, and if banks do not agree to resolve these really disgraceful practices, then there will be further litigation,” Schneiderman said at a news conference in his Buffalo office." (link)
Stay tuned for some discrimination classic hits!
Wage theft claims appear to be on the rise:
"David Weil, the director of the federal Labor Department’s wage and hour division, says wage theft is surging because of underlying changes in the nation’s business structure. The increased use of franchise operators, subcontractors and temp agencies leads to more employers being squeezed on costs and more cutting corners, he said. A result, he added, is that the companies on top can deny any knowledge of wage violations.
'We have a change in the structure of work that is then compounded by a falling level of what is viewed as acceptable in the workplace in terms of how you treat people and how you regard the law,' Mr. Weil said.
His agency has uncovered nearly $1 billion in illegally unpaid wages since 2010. He noted that the victimized workers were disproportionately immigrants." (link)
Here in New York:
"New York’s attorney general, Eric T. Schneiderman, has recovered $17 million in wage claims over the past three years. 'I’m amazed at how petty and abusive some of these practices are,' he said. 'Cutting corners is increasingly seen as a sign of libertarianism rather than the theft that it really is.'” (link)
Some employer advocates claim the rise in wage claims is just "opportunistic lawsuits:"
"Lee Schreter, co-chairwoman of the wage and hour practice group at Littler Mendelson, a law firm that represents employers, said wage theft was not increasing, adding that many companies had become more vigilant about compliance. But that has not stopped lawyers from bringing wage theft complaints because of the potential payoff, Ms. Schreter said. 'These are opportunistic lawsuits,' she said." (link)
But you have to ask yourself -- why would a plaintiff's attorney bring a wage and hour lawsuit on contingency that lacked merit? If the case has no merit plaintiff's counsel will lose and won't obtain any fees -- an attorney seeking profit is unlikely to do that.
Moreover, wage and hour lawsuits are usually pretty clear-cut -- the employer either paid minimum wage/overtime or the employer did not -- it's often that simple.
What do you think?
Since 2008, courts have wrestled with what the requirement of good faith negotiations in NY foreclosure settlement conferences required. Recently, the appellate division took the first big step in clarifying the standard in U.S. Bank National Association v. Sarmiento:
In summary, the court concluded:
"[L]egislative history did not indicate what lawmakers thought would be a good faith standard; likewise . . . there were no published decisions that defined good faith in the context of settlement conferences.
[The court] surveyed trial-level decisions and found that some had not required demonstrations of intentional misconduct or gross negligence when deciding there was a lack of good faith. Other courts considered lenders' lost documents, confusing communications, inexcusable delays and baseless HAMP denials as a lack of good faith, he noted.
[The court] acknowledged the common-law bad faith standard had been used in other contexts, such as an insurance carrier's refusal to accept a settlement offer.
But if the court adopted the proposed standard on questions of good faith settlement conference negotiations, [it concluded] ,'we would undermine the remedial purpose of CPLR 3408.'"
* * *
Events such as a lender's failure to expeditiously review financial information or deny modification without sufficient grounds could constitute a failure to negotiate in good faith, as could a borrower's failure to turn over requested information." (link)
While this is an important clarification of the standard for proving a bank operated in bad faith actually showing this failure takes some substantial legwork. The homeowner will need to collect extensive documentation of papers submitted to and received from the bank.
As a result, homeowners wishing to advance their right to good faith negotiations should contact an attorney as soon as possible after they learn they are in foreclosure.
Yes - you read correctly Californians.
As covered by Workforce:
"The 6th Circuit held that the waivers were invalid. It concluded that any agreement that deprives one of his or her rights under the FLSA is invalid. Because the waiver deprived the employees of their right to participate in the collective action, it was invalid.
The employer argued that the at-issue agreement does not deprive anyone of any rights, since each employee is free to pursue an individual claim against the company for FLSA violations. The court, however, was not persuaded. Instead, the court concluded that because each employee’s potential claim for unpaid overtime was relatively small, the only real opportunity to pursue the alleged FLSA violation was via a collective action.'Requiring an employee to litigate on an individual basis grants the employer [a] competitive advantage…. And in cases where each individual claim is small, having to litigate on an individual basis would likely discourage the employee from bringing a claim for overtime wages.'As the Killion court points out, this decision now creates a split of authority between the 6th other Circuits. The Killion court also pointed out, however, that every other circuit that has decided this issue in the employer’s favor has done so because the agreements also contained arbitration clauses; the agreement in this case lacked that mechanism. It will be interesting to follow if this employer pursues this matter to the Supreme Court, and if that Court is interested in this important issue, or if other circuits follow Killion’s lead in the non-arbitration context." (link)
I think this paragraph puts it perfectly:
"Because no arbitration agreement is present in the case before us, we find no countervailing federal policy that outweighs the policy articulated in the FLSA. The rationale of Boaz is therefore controlling. Boaz is based on the general principle of striking down restrictions on the employees’ FLSA rights that would have the effect of granting their employer an unfair advantage over its competitors. Requiring an employee to litigate on an individual basis grants the employer the same type of competitive advantage as did shortening the period to bring a claim in Boaz. And in cases where each individual claim is small, having to litigate on an individual basis would likely discourage the employee from bringing a claim for overtime wages. Boaz therefore controls the result here where arbitration is not a part of the waiver provision" (link)
In summary, a thoughtful and helpful decision from the Sixth Circuit.
Of course, most employment agreements attempting to waive collective action rights will also include mandatory arbitration -- particularly after this decision. Nonetheless, at least some, like the one in this case, clearly do not.
At least plaintiff's counsel have one more stone to throw at the arbitration Goliath.
The decision is available here.
It appears so:
Foreclosures are starting to be reported in China, home to the most talked about housing market on earth. According to the 21st Century Business Herald, three cities have reported increases in the number of bank repos of Chinese properties. Has a foreclosure crisis begun in China? If so, the China housing bears would have been vindicated. (link)
From the NY Daily News:
"Tatiana Swiderski, 25, said her bosses at the Fifth Avenue store turned a blind eye [to] the harassment — refusing to call cops on the pervy patrons and holing her away in the stock room for complaining.
'They made it their mission to make me feel invalidated,' Swiderski told the Daily News. 'They tried to make me feel like I was a crazy over-reactor.'"
Now she's suing the chain for sexual harassment and retaliation." (link)
Some of the details:
"The sexual assault came just two weeks after security told her a man had been following her and another employee with a video camera and shooting up their skirts as they went up the stairs. While the guards made him erase the video, they let him go and refused to call the police or tell her his name so she could do so. Her suit even claims that a guard mocked her.
After she complained to management, a security guard allegedly told her to “stop being a stupid bitch.” She also claims that a guard began patting her down as she left work, something she felt was sexually inappropriate and not done to other employees." (link)
Not only are the details pretty horrifying but it appears to be a potentially industry-wide issue:
"A 2002 study in Canada found that harassment for these workers doesn’t just come from coworkers, but from customers, as it did for Swiderski, which constitutes a “significant problem.” A majority of women in retail said they had been sexually harassed by customers on the job, but given that companies are focused on satisfying the customer, women face constraints in how they can handle it and many are reluctant to bring it up." (link)
According to the EEOC, it is a clear violation of federal discrimination law for an employer to take no action in response to harassment of employees by customers -- where it has notice of the conduct:
"The employer will be liable for harassment by non-supervisory employees or non-employees over whom it has control (e.g., independent contractors or customers on the premises), if it knew, or should have known about the harassment and failed to take prompt and appropriate corrective action." (link)
The above response is, to put it lightly, clearly inadequate.
I was also struck by a throw away line in the middle of the NY Daily News. Interestingly - the article notes that when Swiderski began working:
"She said there was an early sign of trouble — a co-worker told her she'd only been hired because she's 'tall, pretty, thin and white.'" (link)
If that is accurate (which it may or may not be) Urban Outfitters may be headed for a repeat of a large racial discrimination case brought by LDF regarding hiring for "the American look" at Abercrombie and Fitch:
"Th[at suit alleged that Abercrombie refused to hire qualified minority applicants as Brand Representatives working on the sales floor while discouraging applications from minority candidates. It also charged that in the rare instances when minorities were hired, they were given undesirable positions to keep them out of the public eye.
* * *
In November 2004, LDF and co-counsel reached a settlement with the company, winning $40 million dollars for rejected applicants and employees who had been discriminated against by the company. The settlement’s consent decree also required the company to institute a range of policies and programs to promote diversity among its work force and to prevent discrimination based on race or gender." (link)
Of course this is just the hearsay statement of a co-worker. But, if true, Urban Outfitters (or at least this store location) may also soon be facing suit on the race discrimination front.
It will be interesting to follow this case as it develops.
As covered by the Style of the Case:
"According to the agreement, Barneys will pay $525,000 in damages, fees, and penalties, employ an anti-profiling consultant with expertise in the prevention of racial profiling in loss prevention and asset protection; Investigate customer complaints of profiling; develop and conduct anti-profiling training for loss-prevention and sales employees; adopt new loss-prevention detention policies and a new anti-profiling policy;limit access to its closed-circuit TV areas by local law enforcement officers and maintain records of visits by local law enforcement officers; and establish new record keeping requirements on investigations, detentions and false stops conducted by loss-prevention employees.
Rev. Al Sharpton released a statement Monday:
'Barneys’ agreement with the attorney general was a 'move in the right direction towards fairness and equal respect for all consumers, but we must monitor and continue to be vigilant.''” (link).
Rather incredibly, this is the second time the NY AG has sued Barneys for this exact same thing.
"In 2005, the state attorney general’s office, then under Eliot Spitzer, filed a federal lawsuit against Macy’s that claimed racial discrimination of black and Hispanic customers.
* * *
Macy’s at the time denied any wrongdoing, but the suit was resolved after the company agreed to pay $600,000 in damages, create a position of security monitor, develop regulations on handcuffing, and keep a database of records of all detentions." (link)
Question - Who will be the next AG to bring the same suit, about the same thing, ten years from now after Schneiderman -- and will it also be settled for almost the same amount of money?
Actually, this time it was resolved for $75,000 less than in 2005 so I guess we can estimate it will be $450,000 next time around.
Barneys appears to be a truly wonderful store.
Earlier this week Disability Rights Advocates filed a class action suit against New York City regarding the inaccessibility of NYC streets to the disabled:
"In a complaint received by the United States District Court for the Southern District of New York, the group, Disability Rights Advocates, said the class-action suit aimed to “end decades of civil rights violations” in what is ‘arguably, for non-disabled residents, the most pedestrian-friendly large city in the United States.’
Sidewalks and pedestrian routes, the group said, are often inaccessible for blind New Yorkers and people who use wheelchairs, walkers and other travel aids. Among the dangers, the group described curbs without ramps at pedestrian crossings, midblock barriers like raised concrete, and broken surfaces that can imperil wheelchair and cane users.
The focus of the suit is Lower Manhattan, below 14th Street, where problems are pronounced, according to the complaint.” (link)
The lawsuit, which alleges violation of both federal and city law, seeks to certify a class action of “all persons with mobility and/or vision disabilities who have been and are being denied the benefits and advantages of New York City's pedestrian rights-of-way in Lower Manhattan because of Defendants' continuing failure to design, construct, and maintain pedestrian rights-of-way that are accessible to persons with mobility and/or vision disabilities.”
The complaint seeks only declaratory and injunctive relief – including that the City:
a. Ensure that pedestrian rights-of-way, when viewed in their entirety, are readily accessible and usable by persons with vision and mobility impairments.
b. Undertake prompt remedial measures to eliminate physical barriers to access to pedestrian rights-of-way to make such facilities accessible to Plaintiffs in accordance with federal accessibility standards.
c. Maintain any existing accessible features of Defendants' pedestrian rights-of-way so that such features provide full usability for persons with vision and mobility impairments.
d. Ensure that all future new construction and alterations to sidewalks and streets results in the provision of pedestrian rights-of-way that are fully compliant with federal accessibility standards;
e. Prepare a complete Self-Evaluation and a complete and publicly available Transition Plan regarding the accessibility of existing pedestrian rights-of-way in compliance with Title II of the ADA and Section 504.
Some interesting observations from the complaint:
a) “more than 600,000 New Yorkers with mobility and vision disabilities continue to be excluded from the pedestrian culture that is so critical to community life in New York City because many of the City's sidewalks and pedestrian routes are too dangerous for use by persons with disabilities.” (emphasis added).
b) “A recent survey conducted by the Center for Independence of the Disabled ("CIDNY") of 1066 curbs in Lower Manhattan found that more than seventy-five percent of the corners surveyed had barriers presenting safety hazards to persons with mobility and vision impairments, including nearly a quarter of the curbs surveyed having no curb ramps whatsoever.” (emphasis added)
Lastly, the complaint notes that the suit was filed only after the De Blasio administration “refused to provide meaningful access to their sidewalks and pedestrian routes by making improvements to curb ramps and sidewalks over a reasonable period of time” or “participate in structured settlement negotiations to discuss these proposed improvements.”
It will be interesting to see how the professedly liberal De Blasio administration handles this litigation in the long term.
Notably, shortly before De Blasio took office, and after several years of litigation, the Bloomberg administration finally settled a class action lawsuit concerning the accessibility of NYC taxicabs to the disabled.
The De Blasio administration obviously cannot waive a magic wand and fix every sidewalk curb in a day. But why not enter into cooperative negotiations to formulate a reasonable plan to address this problem instead of wasting money, time, and resources defending a lawsuit - only to eventually settle anyways years later? Moreover, this suit concerns the disability rights statutes that advance the progressive platform and governance the administration has repeatedly stated it is focused on making a reality in NYC?
There are a lot of potential supporters, and ultimately votes, available from the visually or physically impaired NYC community that would also make these efforts politically worthwhile - that is if these voters can safely get to the voting booth on a NYC street.
