Court Deadlines and Statutes of Limitations in the Time of Coronavirus

hourglassAs I write this, many state courts have announced that they are closed to the public due to the coronavirus (COVID-19) crisis and will continue to operate but only for designated “essential functions.” This could obviously affect deadlines in existing cases as well as statutes of limitations for filing new cases. States have already sought to address the problem. In Pennsylvania, for example, the highest court has closed all state court to the public except for “essential functions.” It has also ordered that “all calculations for purposes of time computation relevant to court cases or other judicial business, as well as time deadlines, are SUSPENDED through April 3, 2020.” In New York State, which similarly has postponed all non-essential judicial proceedings, Governor Cuomo has issued an order providing that “any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state, including but not limited to the criminal procedure law, the family court act, the civil practice law and rules, the court of claims act, the surrogate’s court procedure act, and the uniform court acts, or by any other statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby tolled from the date of this executive order until April 19, 2020.” 

Federal courts are different. Congress long ago decreed that “[a]ll courts of the United States shall be deemed always open for the purpose of filing proper papers, issuing and returning process, and making motions and orders.” 28 U.S.C. §452 (emphasis added). Hence, while many trials and public proceedings may be postponed due to the crisis, all ordinary deadlines in federal court will apply, unless courts by general orders applicable to classes of cases or in individual cases extend the deadlines. For example, the United States Supreme Court last week issued an order extending the time for petitions for review from 90 to 150 days after the lower-court ruling. Federal court clerks’ offices are expected to remain open, albeit with limited staff due to the need to limit personal interactions, with filings accepted in person or electronically throughout the crisis. 

So with federal courts open for business with limited staff available to the public and some state courts closed for all but non-essential business, what can you expect if you have deadlines in an existing case or a new case that needs to be filed before a statutory deadline? The first thing is for you or your lawyer to consult the orders and rules that apply to the court where your case is pending or where you intend to file the case. If the case is an existing one, the deadlines may be adjusted by general rule, as in Pennsylvania or New York. If the deadlines are not adjusted by general rule, prudent counsel will confer with opposing counsel and make best efforts to reach agreement and proceed by remote filing whenever possible. It is hard to believe that courts anywhere would look kindly on litigation opponents who are unwilling to cooperate with opposing counsel on reasonable requests for extending deadlines in this time of national crisis. Wherever possible, counsel and clients should work it out reasonably with their opponents and seek judicial approval of scheduling adjustments at the earliest opportunity.

The much harder case is what to do with statutes of limitations, which are generally regarded as absolute bars to recovery if the lawsuit is filed late. Will the closure of a law office due to the crisis extend the deadline for filing? What about if the court is closed and will not accept a new filing until after the statute of limitation has passed? What legal effect will orders like the ones issued by the Pennsylvania Supreme Court or Governor Cuomo ostensibly extending all deadlines have on this issue? 

There are no current answers to any of these questions, and no lawyer or client wants to be the test case. As a result, prudent counsel will take whatever measures are necessary to file actions within the statutory time periods and without hoping that late filings of new matters will be excused. If the court is open and will accept the complaint for filing, either in person or electronically, the best course of action will be to file timely anyway. Even if the court closures prevent counsel from doing all the due diligence and preparing the complaint with the degree of rigor normally employed, because in-person meetings with clients or witnesses are not possible for example, counsel can still file a competent, bare bones complaint that satisfies professional obligations under the circumstances, and can later amend it if necessary. 

If the court is closed to the public and will not accept new filings, either in person or electronically, then counsel should make best efforts to file by mail on time. A credible argument can be made that, if the complaint was mailed with a postmark several days in advance of the deadline, the statute of limitations should be satisfied. Correspondence to the opponent in litigation advising that the complaint was mailed and providing a copy of the complaint prior to the deadline will help the argument.

In short, common sense must rule. Keep all deadlines if possible. Seek and agree to extensions wherever it would be reasonable to do so. If the court will not accept the filing of a complaint prior to the statutory deadline, do your utmost to document that you tried to file it on time and gave the opponent notice. If you follow this guidance, your cases may be delayed but will not be lost due to missing deadlines as a result of the current crisis.  

Courts and Counsel Confront Coronavirus Closures— How Will Your Legal Matter Be Affected?

Female Lawyer working from home with Justice statueLike many other law firms, mine is subject to government mandated shutdown for all public business and physical human interaction due to the coronavirus (COVID-19) pandemic. This means that our attorneys and staff can continue to work, as long we do it remotely, without personal contact with anyone else, such as clients, courts, witnesses, and other lawyers. No employees can come to the office.

Similar prohibitions apply to all businesses and organizations that have been designated by the law as “non-life-sustaining,” in contrast to life-sustaining industries such as hospitals, grocery stores, gas stations, farms, and transit systems. I live and work in Philadelphia, but restrictions like these are being imposed in cities and states throughout the United States.

Smart lawyers and judges defer to experts in other fields, and public health experts everywhere are calling for strong measures like these to save lives. The need for these measures is undisputable. If anything, this should have started sooner.

While law offices are closed for all but remote work, many courts are closed to the public for all but “essential” functions. In Pennsylvania, for example, the state supreme court has issued an order closing to the public all courts statewide except for essential functions, such as issuance of search warrants, criminal case filings, and preliminary hearings for incarcerated persons, and limited civil matters such as those involving juvenile delinquents, protection from abuse, and emergency equity matters, until at least April 3.

By the same order, the Pennsylvania Supreme Court also:

  • suspended time for the calculation of all deadlines relevant to court cases or other judicial business through April 3;
  • specifically authorized and encouraged the use of advanced communications technology to conduct court proceedings; and
  • ordered all courts to consider, whenever possible, deciding matters on the papers, without oral argument.

The United States Supreme Court has closed its building to the public, postponed oral arguments scheduled for March, and extended the time for filing petitions for review from 90 to 150 days after the lower-court ruling. Other federal courts are addressing the crisis on a court-by-court basis. The Court of Appeals for the Third Circuit has announced that it is still holding oral arguments and that the clerk’s office is open, although staffed minimally, with most staff working remotely and able to return phone calls. Many of the federal district courts nationwide also remain at least nominally open, but with public functions such as trials postponed for weeks at least, leaving judges and their staffs working remotely as much as they can.

Where does this leave you and your legal matter? For cases already in the court system that cannot be decided without a trial, this almost certainly means further delay, probably of months, as the backlog of cases set for trial grows. Cases that can be decided on the papers may move faster than usual, because the curtailment of public proceedings should mean that trial judges and their staffs will have more time to focus on reading and deciding motions.

For cases not yet filed, uncertainties abound. The need for justice does not end just because many courts are closed due to the coronavirus. Clients will still need to consult lawyers and lawyers will still need to file lawsuits and other proceedings. Some of this can wait until the crisis passes, but some of it cannot wait. The employer who uses this crisis as an excuse not to pay workers needs to be sued and forced to pay quickly. The 69-year-old client who just realized they need a will cannot wait long. Absent legislative action, statutes of limitations will still run, which means lawsuits need to be filed or somehow preserved, even if the court system will not accept filings through ordinary means. There are countless legal matters that will require attention by courts and counsel throughout the crisis.

While courts and counsel must comply with and respect the social distancing mandate, putting large parts of the justice system on ice for weeks or longer is simply not an option. It is essential to restrict in-person interactions, but most lawyers, judges, court staff, and clients can find ways to continue to work remotely. Fortunately, this is easier in our field than in others, because a large part of the job for many of us includes research, reading, writing, and conferring with others by phone, all of which can be done remotely. Video technology has made it possible for us to hold meetings and even conduct depositions all without leaving our home offices. In a very real sense, law firms and courts are still open for business to a great degree, and clients should be able to expect that close attention will be paid to their cases even during these difficult times.

All players in the justice system must recognize the downside risk inherent in the closure of law offices and the partial closure of the court system. It could have a negative impact not just on the current cases, but on the cases that arise during the immediate crisis, and even on cases that arise later, because of the substantial backlog of cases likely to result. Justice delayed very often leads to justice denied.

We also must consider self-preservation and sanity. Most of us need our work to support our families and to keep ourselves engaged. It is far better for us to take on the challenge of finding ways to continue our work as lawyers and judges than to consider ourselves checked out for the duration of this frightening episode.

Finally, there is the need for us to provide employment not just for ourselves but for others during these difficult times. Whether it is other lawyers or nonlegal staff, our colleagues need to be given work to do, so they can support their families and maintain their sense of self-worth.

For all these reasons, it is incumbent on judges and lawyers everywhere to find ways to make the justice system work remotely during this crisis to the greatest extent possible, consistent with public safety and the social distancing mandate. Mitigating the adverse effect of the health crisis on the justice system should be a matter of utmost concern for the judiciary and legal profession.

Trial Lawyer, Litigator Mike Gehring Joins Steve Harvey Law

Steve Harvey Law LLC is very pleased to announce that Michael E. Gehring has joined the firm’s commercial and complex litigation practice as Senior Counsel effective July 1, 2019. “I am super psyched to have Mike join me and the team at Steve Harvey Law,” said Steve Harvey. “He is a great lawyer. We worked together on the Villanova Law Review in 1987-89 and have been friends ever since.”

Over the past 30 years, Mike has worked as a trial lawyer and litigator for some of the best law firms in Chicago and Philadelphia. He also worked as an appellate lawyer for the Philadelphia District Attorney’s office. He has worked on wide variety of litigation subjects, ranging from business disputes to civil rights, class actions, and insurance. Learn more about Mike here.

Mike’s skills and deep substantive knowledge match perfectly with our firm’s mission of helping people and organizations seek justice in complex civil legal matters. Having him on the team enhances our ability to provide high quality, cost effective representation to our clients.
Steve Harvey Law LLC is a trial and litigation law firm based in Philadelphia, PA, that represents plaintiffs and defendants in cases involving business, employment, intellectual property, environmental justice, trusts and estates, and other state and federal legal matters.

CLE Program: Reflections on the 13th Anniversary of the Intelligent Design Case, Kitzmiller v. Dover Area School District and its Legal Implications.

November 1, 2018

Speakers: Steve Harvey with Lauri Lebo and Eric Rothschild

Steve will be joined by Eric Rothschild, his co-counsel in the noted case of Kitzmiller v. Dover Area School District, and journalist Lauri Lebo, who covered the trial and later wrote a book about the experience, The Devil in Dover An Insider’s Story of Dogma v. Darwin in Small-Town America. Together, they will make a presentation entitled Wandering 40 Days in the High Profile Case Desert: What to Consider When the Media is an Interested Party. Their presentation will be part of a larger CLE to commemorate the 13th anniversary of the Kitzmiller case. Other program highlights include mock argument and discussion of the outcome of Kitzmiller and a review of the ethical issues and other considerations.

The program will take place at the Delaware State Bar Association, 405 N. King St., Suite 100, Wilmington, DE.

To register and for more information go to http://media.dsba.org/CLEReg/OfficeandTrialPractice2018

 

CLE Program: Scientific Expertise in the Courtroom

Thursday, March 29, 2018
9 a.m. – 12:30 p.m.

Science History Institute
315 Chestnut Street, Philadelphia

Testimony by scientific experts plays a key role in criminal and civil cases throughout the U.S. Yet it is an area that is continually evolving as cutting-edge scientific procedures are developed and new ethical questions are raised.

Villanova University Charles Widger School of Law and the Science History Institute bring together top scholars and experienced practitioners in evidence, psychology, economics and ethics to tackle some of the field’s most pressing issues in a symposium entitled “Scientific Expertise in the Courtroom.” Topics of discussion include the crisis in forensic science; the standards for admissibility of expert testimony, including statistical estimation evidence; the problem of bias in expertise; the ethical dilemmas of attorneys drafting expert reports; and the ethical challenges when consulting experts become testifying experts.

The event takes place on Thursday, March 29, 2018 from 9 a.m. to 12:30 p.m. at the Science History Institute (315 Chestnut Street, Philadelphia). The program is approved by the Pennsylvania Continuing Legal Education board for 2 substantive CLE credits and 1 ethics CLE credit. 

CLICK TO REGISTER

Schedule of Events

8:30 – 9 a.m.: Registration and Coffee

9 – 9:10 a.m.: Welcome Remarks

9:10 – 10:30 a.m.: Issues of Forensic Science in the Criminal Context

Jules Epstein, Director of Advocacy Programs, Temple University Beasley School of Law
Jennifer Gentile LongCEO, AEquitas: The Prosecutors’ Resource on Violence against Women
Kevin Todorow, JD Candidate, Temple University Beasley School of Law

Moderated by David S. Caudill, Professor of Law and Arthur M. Goldberg Family Chair, Villanova University Charles Widger School of Law

10:30 – 10:40 a.m.: Break

10:40 – 11:30 a.m.: Statistical Estimation Evidence in Toxic Tort Cases, and the Impact of Human Psychology in Criminal Cases

Jonah Gelbach, Professor, University of Pennsylvania Law School
Adam Benforado, Professor, Drexel University Thomas R. Kline School of Law

Moderated by Jody A. Roberts, Director of Institute for Research, Science History Institute

11:30 a.m. – 11:40 a.m.: Break

11:40 a.m. – 12:30 p.m.: Examining the Practical and Ethical Issues of Expert Testimony

Stephen G. Harvey, Steve Harvey Law LLC
David S. CaudillProfessor of Law and Arthur M. Goldberg Family Chair, Villanova University Charles Widger School of Law

Moderated by Shea M. Rhodes, Director, Villanova Law Institute to Address Commercial Sexual Exploitation

New Law Creates Federal Trade Secrets Cause of Action

New Law Creates Federal Trade Secrets Cause of Action

On May 11, 2016, President Obama signed into law the Defend Trade Secrets Act (DTSA), which provides a federal cause of action for trade secret misappropriation. Prior to the DTSA, plaintiffs seeking to enforce trade secrets rights relied exclusively on state law; most states have adopted the Uniform Trade Secrets Act (UTSA).

With limited exceptions, the rights granted under the DTSA are the same as under the UTSA. The basis for liability is the same. The damages are the same. Both the UTSA and the DTSA permits the recovery of enhanced double damages and attorneys’ fees for willful misappropriation of trade secrets.

One difference is that the DTSA provides immunity to whistleblowers who disclose trade secrets to law enforcement officials, or to an attorney, for the sole purpose of reporting or investigating a suspected violation of law. The DTSA provides immunity to parties who disclose a trade secret in a lawsuit, if the disclosure is made in a filing made under seal. The DTSA also requires employers to provide notice of this immunity in a contract or agreement with an employee that governs the use of trade secrets. Employers who fail to provide such notice are barred from recovering enhanced damages and attorneys’ fees.

Note to practitioners: employers who are concerned about the potential for trade secret misappropriation will want to update their policy manuals, employment contracts, or other employment materials to give the notice required by the DTSA if they want to take advantage of the possibilities for recovering enhanced damages and attorneys’ fees.

Another difference is that the DTSA forecloses the possibility of injunctive relief based on the inevitable disclosure doctrine. The DTSA requires evidence of threatened misappropriation before an injunction will issue. This differs from the law in many states, which authorize injunctive relief where use or disclosure of trade secrets is inevitable even if not yet proved.

Unlike the UTSA, the DTSA provides for ex parte civil seizure in extraordinary circumstances. Courts can issue seizure orders where the party against whom the seizure would be ordered misappropriated or conspired to misappropriate the trade secret at issue and is in possession of the trade secret. Such orders are appropriate where an injunction is insufficient because the party against whom the injunction order would be issued would not comply with the order.

The Bottom Line—Trade Secret Plaintiffs Can go to Federal Court if They Want

The differences between the DTSA and the UTSA will only matter in rare cases, with one exception: the right to bring suit in federal court. The DTSA ensures that every plaintiff who wants to bring a trade secrets claim in federal court can do so. But if there is no other basis for federal court jurisdiction (such as diversity of citizenship), a plaintiff can file in state court and avoid removal to federal court simply by pleading a state law trade secrets claim without reliance on the DTSA. This option to proceed in federal court now provides an important advantage for plaintiffs in trade secrets cases.

 

 

 

Supreme Court Holds That Rule 68 Offer of Judgment Does Not Make Class Action Moot

Yesterday, the United States Supreme Court, in a 6-3 decision, with Justice Thomas providing the sixth vote, held that an unaccepted offer of judgment under Rule 68 of the Federal Rules of Civil Procedure in a case seeking class certification under Rule 23 does not render the case moot, even though the defendant’s offer of judgment would have provided the named plaintiff in the case all the relief to which he would have been entitled even if he won the case. A link to the decision in Campbell-Ewald Co. v. Gomez is available here. The decision is significant as the latest in a series of disputes between corporate defendants and class action plaintiffs about when federal courts can grant class action relief. In general, corporate defendants seek to limit class action relief for persons claiming injury and class action plaintiffs seek greater access to the courts and the possibility of large damages awards.

The plaintiff in this case brought the case claiming that he had received a text message from the defendant that violated the Telephone Consumer Protection Act (“TCPA”), a federal statute that limits the ability of companies to send unsolicited text messages. The defendant sent the text messages as a contractor for the United States Navy. The messages were designed to promote Navy recruiting.

The TCPA provides for actual damages or statutory damages of $500 per violation, whichever is greater, plus treble damages for willful and knowing violations as well as injunctive relief. The defendant made an offer of judgment under Rule 68 that if accepted would have provided the plaintiff with $1,503 (treble statutory damages plus three dollars) as well as injunctive relief. The plaintiff did not accept the offer, even though it provided all of the relief to which he would have been entitled if the case went all the way through trial and he won.

The defendant then sought to dismiss the case as moot under Article III of the Constitution, which provides that federal courts can only hear actual “cases or controversies.” Prior to yesterday’s decision, the federal circuit courts were split on the issue of whether an offer of judgment to a named plaintiff that provided all of the relief available renders the case subject to dismissal as moot.

Justice Ginsburg wrote the decision for the majority joined by Justices Kagan, Breyer, Sotomayor, and Kennedy, with Justice Thomas concurring in the result but writing his own opinion setting forth a different rationale for the result. In her opinion, Justice Ginsburg noted that contract principles govern offers of judgment under Rule 68, and that any unaccepted offer to enter into a contract has no legal effect. Her opinion also rejected a secondary argument made by the defendant that as a contractor to the Navy it was entitled to the sovereign immunity of the federal government on the grounds that the Navy’s contract with the defendant required compliance with the TCPA and sovereign immunity did not apply because the defendant allegedly exceeded its authority under the contract.

The decision is unquestionably an important victory for class action plaintiffs, as corporate defendants have for years been using Rule 68 offers of judgment to pick off named plaintiffs and render their cases moot, meaning that the substance of their claims on behalf of classes of other similarly situated persons never got to be heard. But the extent of the victory will remain unknown until the Supreme Court hands down its decision in two other important class action cases now pending before it. In Spokeo, Inc. v. Robins, the Court will decide whether a plaintiff who cannot show any actual harm from an alleged federal statutory violation nevertheless has standing under Article III of the U.S. Constitution to sue for statutory damages in federal court.  In Tyson Foods, Inc. v. Bouaphakeo, the Court will consider whether the trial court should have certified a Rule 23 class action and a Fair Labor Standards Act collective action for claims alleging that Tyson Foods had not paid its employees for all time spent donning and doffing protective gear. Decisions in Spokeo and Tyson Foods are expected before June. For now, its round one, at least this term, for class action plaintiffs.

Supreme Court Rules in Favor Of Muslim Woman Who Wore Head Scarf to Job Interview

Employers must continue to ensure that applicant’s religious practices are not a factor in hiring decisions. So said the Supreme Court this week. The Court ruled Monday in favor of a Muslim woman whom Abercrombie & Fitch refused to hire because she had worn a hijab—a traditional Muslim head scarf—when she interviewed for a salesperson position at a retail store in Tulsa.[1] Then-17-year-old Samantha Elauf did not mention the hijab or her religion in her interview, but the interviewer assumed she was Muslim and that she wore the hijab for religious reasons.  Evidence suggested the hijab influenced the decision not to hire her because it conflicted with Abercrombie’s “look policy,” which required sales persons to wear “classic East Coast collegiate style of clothing.”

The EEOC initially won summary judgment on Ms. Elauf’s behalf, but the Tenth Circuit Court of Appeals reversed that decision, reasoning that Ms. Elauf had failed to notify Abercrombie of her need for a religious accommodation.

Writing for the majority, Justice Scalia confirmed that an applicant need not make a specific request for religious accommodation to obtain relief under Title VII of the Civil Rights Act of 1964, which prohibits religious discrimination in hiring: “Title VII forbids adverse employment decisions made with a forbidden motive, whether this motive derives from actual knowledge, a well-founded suspicion, or merely a hunch.”

Justice Scalia called it a “really easy decision.”

The decision reconfirms that an employee’s religious practices may not be a factor in employment decisions—whether or not the employer has actual knowledge, or merely presumes or suspects, that those practices are based on religious beliefs.

The Court’s vote was 8-1, with Justice Clarence Thomas dissenting. The decision is in line with the Court’s recent broad view of religious rights, following last year’s Burwell v. Hobby Lobby[2] decision in which the Court found broad religious freedom rights for corporations, and Holt v. Hobbs,[3] in which the court found that a ban on beards infringed on the religious rights of prisoners earlier this year.

 

Therese K. Dennis

Counsel, Steve Harvey Law

 

 

[1] EEOC v. Abercrombie & Fitch Stores, Inc., Docket No. 14-86 (June 1, 2015)

[2] Docket No. 13-254 (June 30, 2014).

[3] Docket No. 13-6827 (January 20, 2015).

Survey Shows Mortgage Servicing Still a Problem

For those facing foreclosure, problems persist in dealing with servicers. A recent National Consumer Law Center survey of consumer advocates and housing counselors about their experiences with the mortgage servicing industry revealed ongoing problems. These problems have been present since the financial crisis began in 2008 and unfortunately continue on today.

Successors in interest (heirs, widows, and orphans) often have trouble getting even basic information about the loan as the lender does not view them as valid parties of interest. There are unnecessary hurdles in place that prevent these cases from reaching simple resolutions that would allow the successor to resume payments, keep the home, and ensure that the loan remains performing. Resolving this problem is a win-win situation for the lender and successor, and it can be accomplished with basic changes to the system and more education to all stakeholders about current regulations and requirements.

Repeated requests from servicers for documents from the homeowner is another consistent complaint. It can be an endless cycle for the homeowner and can prevent resolutions for homeowners with the capacity to pay. The definition of a “complete package” can vary depending on a borrower’s financial circumstances, and it can be difficult to get a clear answer from a servicer about which documents are needed. Servicers often ask for documents in a piecemeal fashion, or ask for the same document repeatedly with no explanation as to why.

Mortgage foreclosure suffers from issue fatigue, but it’s important that we continue to work on this problem in an effort to stabilize families and communities. A homeowner dealing with foreclosure should seek help from an experienced advocate (housing counselor or lawyer) to assist in navigating what still proves to be a complicated process.

 

RG-3Rachel Gallegos

Lead Consumer Advocate, Steve Harvey Law

 

Consumer Financial Protection Bureau Takes on Student Loan Servicing

We are in the midst of graduations across the nation and it can be a bleak picture for graduates looking for employment. Finding a job in a specific field can be difficult, but students must also take into account looming student loan payments. Large student loan payments prevent students from making other financial investments and this has long-term repercussions for the student borrower as well as the entire economy.

The Consumer Financial Protection Bureau recently announced that it is soliciting comments from the public about borrower experiences with student loan servicing. CFPB Director Richard Cordray stated that “[t]he inquiry seeks to determine if the student loan servicing industry is doing things that make repayment more complicated and more costly for consumers.

The CFPB has taken an active role in monitoring and regulating various consumer industries such as payday loans, mortgage servicing, and credit cards. It is not surprising to learn that in light of the staggering statistics about student loan debt, the CFPB is now taking action.

There is a lot of room for improvement in terms of regulating lenders and servicers. It is good to know that the voices of student borrowers are finally being heard. Hopefully those facing crushing debt loads will soon find some relief.

 

Rachel Gallegos

Rachel Gallegos

Lead Consumer Advocate, Steve Harvey Law