Takeaways from Tallahassee — When lawyers break bad

October 21, 2017/in Florida Politics

Takeaways from Tallahassee — When lawyers break bad

PETER SCHORSCH
October 21, 2017, 6:00 am

A panel of U.S. district judges this week hit two Jacksonville law firms with $9.1 million in sanctions for filing “non-viable” tobacco lawsuits.

“On the rare occasion when attorneys undermine that integrity and trust, there must be consequences,” their 148-page opinion begins. “This is one of those rare occasions.”

It singled out The Wilner Firm and Farah & Farah, though the judges noted that though the firms “are responsible for the monetary sanctions, it is primarily the conduct of (principals Norwood) Wilner and (Charlie) Farah, and not the other lawyers in the respective firms, that has caused the Court to impose sanctions.”

The opinion went on to call over 1,000 suits they brought an “immense waste of judicial resources (that showed) contempt for the judicial process.”

Eddie and Chuck Farah of the Farah & Farah Law Firm in Jacksonville.

“Counsel evinced a conscious disregard of their professional obligation to properly investigate such claims,” it said. “As it turns out, many of the plaintiffs never authorized Wilner and Farah to file a suit. Some had barely heard of them.”

Such suits are known as “Engle progeny” cases, after a monumental 1994 class action and landmark Florida Supreme Court decision, in which individual smokers with claims against tobacco companies each sue for their own damages but don’t have to prove causation.

“Although a settlement of the cases in federal court was announced, the state court (lawsuits) are slated to go on for decades,” according to the Tobacco Control Legal Consortium.

On a related note, a bill died last Legislative Session that would have repealed the state’s cap on the amount of money tobacco companies have to put up as appellate bonds.

The state’s trial lawyers, who backed the change, said it would have forced settlements and end litigation over plaintiffs’ claims of irreversible illness or early death from smoking. The repeal has again been filed for the next session beginning in January.

William Large, president of the Florida Justice Reform Institute, a tort reform group in Tallahassee, said the lawyers “clogged” the courts with “baseless lawsuits.”

“As (the judges) said in their decision, ‘frivolous litigation diverts the time and attention of [the courts] away from meritorious lawsuits,’ ” Large said in a statement. “This irresponsible behavior by plaintiffs lawyers has a cost, delaying justice for the truly injured who they profess to represent.”

http://floridapolitics.com/archives/247480-takeaways-tallahassee-lawyers-break-bad

Will Trump DOJ side with disabled plaintiffs in ADA website suits?

October 19, 2017/in Reuters

OCTOBER 19, 2017

Will Trump DOJ side with disabled plaintiffs in AD

Alison Frankel

(Reuters) – Businesses are not at all happy about a boom in suits by disabled consumers who claim corporate websites are insufficiently accessible under the Americans with Disabilities Act. These cases have mushroomed since 2015. Disabled plaintiffs, many of them represented by the same handful of firms, filed 240 suits in 2015 and 2016, according to a Wall Street Journal report on the trend last November. This year, the number of new ADA website accessibility cases has already topped 400, according to the Florida Justice Reform Institute.

The Florida group, which bills itself as a coalition of “concerned citizens, small business owners and business leaders,” is urging the 11th U.S. Circuit Court of Appeals to squelch these cases now. So is an unusually diverse collection of more than a dozen business groups, including the Restaurant Law Center, the American Bankers Association, the National Association of Realtors and the U.S. Chamber of Commerce. They argue in newly filed amicus briefs backing the supermarket chain Winn-Dixie that the text of the ADA, most recently revised in 2010, says nothing about whether business websites must accommodate disabled customers, yet some federal courts – including the Miami federal judge who ruled last year that Winn-Dixie must revise its website to make it accessible to a visually impaired customer (2017 WL 2547242) – have read such an obligation into the statute.

Those rulings “have created significant confusion regarding the circumstances under which websites may fall within (the ADA’s) reach and, more specifically, what measures businesses must take to ensure their websites meet any supposed accessibility requirements,” the Restaurant Law Center and its fellow amici said in their brief in the Winn-Dixie appeal. “If this court affirms the lower court’s decision at issue on this appeal, (businesses) will be forced to do the impossible and try to ‘comply’ with nonexistent, undefined and potentially ever-changing standards of website accessibility.” (Making Internet content accessible for the visually impaired, via screen readers that translate content into synthesized speech, is not a trivial expense; Winn-Dixie, for instance, had already earmarked $250,000 for the project even before it was sued.)

Judges have been forced to interpret the statute because the Justice Department, which Congress charged with implementing the ADA, has failed to engage in formal rulemaking, according to Winn-Dixie’s business amici. DOJ issued an advance notice of proposed regulations for ADA-compliant websites all the way back in 2010. But the Justice Department never managed to produce a formal proposal for website accessibility standards. Instead, DOJ staked out a position by filing statements of interest in ADA cases across the country.

“The DOJ claims the ADA governs websites, not because the statute states as such, nor because the DOJ has duly amended the ADA regulations to include coverage of websites, but because the DOJ has decreed it so in litigation,” wrote K&L Gates in the Florida Justice Reform brief.

In the Winn-Dixie case – the first ADA website accessibility suit to be decided after a bench trial – the Justice Department did indeed file a statement of interest in the lower court, backing plaintiff Juan Carlos Gil. The Civil Rights Division’s disability rights section argued that under the ADA, grocery store websites, like the websites of all places that accommodate the public, must be accessible to blind people. DOJ acknowledged that it was engaged in rulemaking on the issue, but said its longstanding position has been that the ADA’s text and legislative history indicate the law encompasses websites as well as physical locations.

The DOJ’s statement of interest in the Winn-Dixie case in federal district court was filed in December 2016. You can probably guess why I’ve mentioned that date: It precedes Donald Trump’s inauguration as president and Jeff Sessions’ confirmation as U.S. attorney general.

The Justice Department that vigorously supported disabled plaintiffs in ADA website accessibility litigation, in other words, was not the same DOJ that exists today. The Trump administration has already abandoned Obama-era positions in litigation involving workplace discrimination against gay and lesbian employees and mandatory arbitration provisions barring employees from bringing classwide claims. Will the Justice Department drop its support for disabled plaintiffs suing businesses for failing to make their websites accessible?

There are already signs that the Trump administration is reconsidering the issue. Angelo Amador of the Restaurant Law Center pointed out to me that the Obama administration repeatedly moved the deadline for proposing regulations to make business websites comply with the ADA, promising in its final regulatory guidance to issue a proposal in 2018. But the Trump administration’s first guidance on its regulatory agenda indicated that no rule is in the offing. The advance notice proposal has been moved to the inactive category, which, Amador said, is an indication that the Trump DOJ has different ideas than the previous administration.

I sent a detailed email to the Justice Department, asking what position, if any, it expected to take in the Winn-Dixie appeal at the 11th Circuit. I didn’t hear back. I also didn’t receive a reply to an email sent to Juan Carlos Gil’s law firm, the Law Offices of Scott R. Dinin.

Litigation over business website accessibility for the disabled is only going to get more heated. As Amador of the restaurant trade group noted, the 9th Circuit is also poised to hear a case involving a website that supposedly fails to accommodate visually impaired customers. Unlike U.S. District Judge Robert Scola in the Winn-Dixie case, U.S. District Judge James Otero of Los Angeles held last March in Robles v. Dominos Pizza (2017 WL 1330216) that until the DOJ or Congress sets formal website accessibility standards, defendants’ due process rights preclude ADA claims. The plaintiff in the Domino’s case, who also claimed the pizza chain’s mobile app does not comply with the ADA, has filed a notice of appeal. The Restaurant Law Center is already working on its amicus brief in that case, Amador said.

https://www.reuters.com/article/legal-us-otc-ada/will-trump-doj-side-with-disabled-plaintiffs-in-ada-website-suits-idUSKBN1CO2WJ

Claimants’ Attorney Fees Nearly Tripled in Year After Castellanos

October 10, 2017/in WorkCompCentral

Tuesday, October 10, 2017

Claimants’ Attorney Fees Nearly Tripled in Year After Castellanos

By J. Todd Foster

The amount of hourly fees awarded to claimants’ attorneys nearly tripled in fiscal year 2017 over the prior year, but stakeholders warned Monday that the increase most likely is related to the hoarding of fee petitions until after the Florida Supreme Court released its decision in the Castellanos case.

According to unreleased data that will be published later this year in the annual report by the Office of Judges of Compensation Claims (OJCC), claimants’ attorneys’ hourly fees went from a statewide total of $25.9 million in fiscal 2016 to $75.4 million last year – a 191% increase.

Scales With Money

David Langham, the OJCC’s deputy chief judge, cautioned that the 2017 numbers could be artificially high and the 2016 data artificially low because attorneys were anticipating the high court’s April 2016 decision in Marvin Castellanos v. Next Door Co.

The high court ruled that Florida’s statutory attorney fee schedule was unconstitutional because it did not allow for reasonable fees in some cases. The decision opened the door for attorneys to submit fee petitions going back to cases filed on and after July 1, 2009.

Langham said it is not yet possible to determine whether or by how much hourly fees were driven by pent-upcases with lawyers awaiting the Supreme Court’s decision, or if Castellanos represents a significant trend.

But he suspects the former.

“Some attorneys have told me they decided to park the fee issue on the side of the road and say, ‘I’m going to wait to see what the Supreme Court does,”‘ Langham said. “After Castellanos, a lot of those (fee issues) were jump-started.”

Since 1979, claimants’ attorneys have had a statutory fee formula: 20% of the first $5,000 secured for workers, 15% of the next $5,000, 10% of the remainder secured during the first 10 years after the claim was filed, and 5% of the benefits secured after 10 years.

Before 2003 reforms, the formula was the starting point; hourly fees were still allowed depending on case complexity, hours worked and other factors.

After 2003, however, the formula became absolute. So in 2008, the state Supreme Court ruled in Emma Murray v. Mariner Health and Ace USA that claimants’ attorneys were entitled to reasonable hourly fees outside the formula when employers/carriers wrongfully denied benefits.

The Legislature quickly responded by deleting the word “reasonable” from the fee statute, 440.34, and capping claimants’ attorney fees at the formula. (Defense fees are not capped.)

That 2009 legislative action is what the Florida Supreme overturned in Castellanos. Ever since, the business and insurance communities have pushed lawmakers to enact a new fee system that would pass constitutional muster. Several competing bills aimed toward that end failed to pass earlier this year.

Stakeholders agree that it will be difficult to gain legislative reforms in 2018 because of the recent proposal by the National Council on Compensation Insurance to reduce rates by 9.3%.

“I would be surprised if someone would be able to get traction on the attorney fee issue in the Legislature with a proposed 9.3% decrease,” said Orlando defense attorney Rogers Turner.

He said it was “pretty good bet” that the fiscal 2017 numbers corning out of OJCC on attorney fees are due to delays in fee petitions.

Carolyn Johnson, director of business, economic development and innovation policy at the Florida Chamber of Commerce, said the OJCC numbers appear to confirm a $1 billion unfunded liability projected by NCCI over the retrospective consequences of Castellanos.

She noted that the unfunded liabilities were not even considered in an earlier 14.5% rate increase, only the return to hourly attorney fees.

“I could envision that the fee backlog will be reduced or eliminated, but I think attorney fees will still be higher than they were pre-Castellanos,” Johnson said. “I have this vision in my head of trial lawyers feeding at an open trough, a buffet of increased attorney fees.”

Bill Herrle, executive director of the National Federation of Independent Business Florida, said it’s much too early to say that delayed fee petitions are to blame for increased hourly fees.

“Should Castellanos stand, we believe that it will drive litigation, particularly with smaller cases, which would be the most profitable type of cases for plaintiff attorneys,” Herrle said. “Workers’ compensation has a long tail, so we’ll be waiting a while for any ‘I-told-you-so’s.’ “

To demonstrate the long-tailed nature of comp claims, take the case of David Fickey v. Montgomery Wards, which currently is before the OJCC even though it has an accident date of Feb. 8, 1943.

Seventy-four years ago, Fickey was an automobile sales specialist for Montgomery Wards in Tampa and hurt his back while carrying a battery and then got hit in the head with a jack.

To view his claim, click here, then click on case search at the upper left and key in Case Number 16-021217.

On Aug. 31, 2016, Fickey filed a petition for benefits seeking a walk-in tub, a raised toilet seat, bathroom safety bars and an adjustable bed.

Adjuster Saundra Woodley with Travelers said in a response to Fickey’s petition that she has requested additional information from the worker’s treating physician but heard nothing back. Now the case is being litigated before the OJCC with a final hearing set for Dec. 18.

William W. Large, president of the Florida Justice Reform Institute, an anti-tort group, said Castellanos will permanently increase litigation behavior patterns.

“The 191% increase has to do with behavioral economics. The Castellanos decision removes the cost-containment measures passed during the 2003 session and essentially revives the concept of fee for service,” Large emailed.

“This will alter the behavior of claimants’ attorneys and lead to more claims being filed. The ‘parked’ fee petition phenomena is an example of the Castellanos decision altering claimants’ attorneys’ behavior,” he said.

Tampa claimants’ attorney Mike Winer agreed that many of his peers held back fee claims for years, “hoping that a reasonable fee might be the standard.”

But Winer said any increases in claimants’ attorney fees are the fault of insurers and that such fees are awarded only when benefits are wrongfully denied to injured workers.

Carriers fought many cases for years in the belief they would face only a 10% penalty if they lost, he said.

“Many carriers took very dubious defenses to trial and didn’t pay benefits when they should have, and now they are having to pay for those ill-advised claims decisions,” Winer said.

“I maintain that 2017 marks an artificially high year for fees because of these factors. Carriers are now in a more timely fashion and are not indiscriminately denying benefits that are obviously due with the same frequency as in the past. These factors and the passage of lime will cause the numbers to even out to a more predictable and reasonable level,” he said.

The OJCC data show that the average attorney fee by the hour in fiscal 2016 was $176.48, compared to $247.95 in 2017, a 40.5% increase.

Litigation volumes are measured in Florida with two metrics: “petition for benefits” and “new case.”

The OJCC’s Oct. 5 blog explains the metrics here

OJCC statistics show that:

• New cases filed increased only 0.54% in fiscal 2017 over the prior year, from 31,165 to 31,334. Since fiscal 2003, the number of new cases filed has dropped 45%.

• Petitions for benefits increased 4.61% in fiscal 2017 over the prior year, from 67,265 to 70,365.

See Full Article

Reprinted courtesy of WorkCompCentral.

Takeaways from Tallahassee — When lawyers break bad

Will Trump DOJ side with disabled plaintiffs in AD

Claimants’ Attorney Fees Nearly Tripled in Year After Castellanos

Florida Justice Reform Institute

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