Tom Appeals Blog

News and Observations About Law and Society

"As long as I have any choice, I will stay only in a country where political liberty, toleration, and equality of all citizens before the law are the rule." - Albert Einstein

SCOTUS Limits State Liability Under the FMLA for Self-Care

Posted: March 21, 2012 Filed under: Uncategorized

In a case illustrating how a minority position can shift into a majority holding, the Supreme Court of the United States held in Coleman v. Court of Appeals of Maryland, — U.S. — (March 20, 2012), that sovereign immunity bars lawsuits against States under self-care provision of the Family Medical and Leave Act (FMLA) The FMLA requires certain large employers, including States, to grant unpaid leave for self care for a serious medical condition, provided other requirements are also satisfied.

Coleman was an employee of the Maryland Court of Appeals and sued the State of Maryland under the FMLA for denying him self-care leave. The trial court dismissed Coleman’s claim, and the United States Court of Appeals for the Fourth Circuit affirmed,  holding that, unlike the FMLA’s family-care provision, the self-care provision was not created to correct an identified pattern of gender-based discrimination and was not congruent and proportional to any pattern of sex-based discrimination on the part of States.

In 2003, a three justice minority would have held States immune under the family-care provision. Then, in Nevada Dept. of Human Resources v. Hibbs, 538 U. S. 721 (2003), the Court held in a 6-3 decision that mandated leave for the care of family members is a valid exercise of congressional power aimed at eradicating sex discrimination. The law, the former Chief Justice wrote, was appropriately directed to ensuring employers did not discriminate against women because of the erroneous perception that women take more time off work to care for children and other sick family members. “The same cannot be said for requiring the States to giveall employees the opportunity to take self-care leave,” Justice Kennedy wrote in Coleman.

All three female justices dissented, as did Justice Stephen Breyer. Of note, the lead dissenting justice, Justice Ruth Bader Ginsburg, was once fired after she became pregnant.

The Beat (for Alternative Attorney’s Fees) Goes On

Posted: March 7, 2012 Filed under: Commentary, Law-Related News

I have posted before about the trend toward alternative fee structures used by law firms, whether by choice or by necessity. This article in the Journal of the American Bar Association quotes lawyers from some of America’s larger firms and highlights  some of the incentives and terms of alternative fee arrangements those firms have with large, institutional clients.

Although the article focuses on large firms and large clients, its message pertains to ordinary people and small businesses, too. Few people and businesses have money to burn, and it’s probably safe to assume everyone would prefer to spend their money on something enjoyable rather than on a visit to the dentist … or their lawyer. Don’t get me wrong, lawyers provide a valuable service. I’ve seen my fair share of clients who wound up in a pickle because they cheaped out on the front end. Good lawyers deserve to be paid for their intellect and talent. That said, clients who do not explore alternative attorney’s fee arrangements and opt, instead, to pay for inefficiency do themselves a disservice.

Good lawyers can and will find an alternative to the billable hour that provides value and financial predictability to the client and a good living for the lawyer. Just ask … or insist.

Breach of Fiduciary Duty Claims and the Economic Loss Rule

Posted: March 5, 2012 Filed under: Commentary, Law-Related News

My article titled Ruminations on the Relationship Between the Economic Loss Rule and Claims for Breach of Fiduciary Duty is the cover article for the March 2012 issue of The Florida Bar Journal. The article can be found online HERE. Although the topic is admittedly esoteric, the legal issue is one of great practical significance to persons whose financial interests are subject to the control of another person in a position of trust. Florida law concerning the economic loss rule a/k/a the economic loss doctrine is unique and, as discussed in the article, not fully settled.

Admitted: Florida, Kansas, New Mexico (inactive)