New York Cases To Watch In 2014
By Pete Brush
Law360, New York (January 01, 2014, 10:08 AM ET) -- Lawsuits alleging racial profiling, a dispute over how much power the governor has to subpoena lawmakers and law firms, and a last-ditch effort by gas drillers to nullify local fracking bans are among the biggest cases New York attorneys will be watching in the coming year.
Here's a look at these and other high-profile cases on the Empire State docket for 2014.
'Shop And Frisk' Class Actions Against Macy's And the NYPD
In a proposed class action against Macy's Inc., Brooklyn actor Rob Brown claims the retail giant profiled him on suspicion of using a fake credit card despite the fact that he had identification — a move that led to the "Treme" trumpeter being thrown in jail. His companion lawsuit against New York City police claims the department condones the profiling.
Winning class certification could be a challenge, if a recent state court case is any guide. A Turkish widow named Ayla Gursoy was recently denied a bid to convert her claims against Macy's Inc. into a class action because claimants' situations varied too widely. Gursoy's lawyer, Faruk Usar of Usar Law Group PC, said his client settled right after.
But attorney Douglas Wigdor, who represents Brown, believes he can defeat Macy's as it resists the argument that the federal claims are suitable for a class action. It's a fight that many retailers will be watching because allegations of racial profiling go far beyond Macy's in New York City.
“Macy's will argue that each case is an individualized assessment not suited for class certification. But that argument is used all of the time," Widgor said. “The whole purpose of class action suit is to stop a pattern or practice of unlawful activity. If these cases were litigated on an individual basis there would be no incentive for Macy's to change its policies.”
A January conference is set for the federal cases.
Brown is represented by Douglas Wigdor of Thompson Wigdor LLP. Macy's is represented by
Jones Day.
The cases are Brown v. Macy's, case number 1:13-cv-08092, and Brown v. New York, case number 1:13-cv-08094, in the U.S. District Court for the Southern District of New York.
'Stop And Frisk' Appeals
The outgoing administration of New York City Mayor Michael Bloomberg aggressively kept up challenges to rulings in 2013 finding that police anti-street crime tactics known as stop-and-frisk violate the constitutional rights of blacks and Hispanics — the groups most often targeted.
Already a closely watched case, the litigation drew even greater attention when the Second Circuit removedtrial Judge Shira A. Scheindlin in late October for making comments that appeared to show a bias in favor of the plaintiffs. The appeals court stayed the rulings but refused to vacate them outright, setting up a full briefing on the merits.
Bloomberg pressed the appeals to Judge Scheindlin's rulings until the final hour, but with new Mayor Bill de Blasio having expressed sympathy for the plaintiffs, the challenges could be short-lived.
Lawyers will watch the new mayor's strategy carefully. He could potentially keep the appeals in play — in part to save the city the cost of appointing an independent police monitor and millions of dollars in litigation costs — while making changes to the police department through his new city police commissioner, Bill Bratton.
Sitting down with stop-and-frisk plaintiffs to see if a deal on the appeals can be reached will be tricky, lawyers watching the cases say, especially since the plaintiffs sunk a great deal of time and effort into the cases and aren't likely to give up now.
“I could see the city's new corporation counsel sitting down with the plaintiff's lawyers and try to work out a resolution," said Pace Law School professor Randolph M. McLaughlin, who also co-chairs Newman Ferrara LLP's civil rights practice.
With changes already underway inside the department and de Blasio's well-known support for the trial court's decision, "for practical purposes, stop-and-frisk as we've known it is gone," McLaughlin said.
"I can't see the new mayor embracing it, with or without a court order,” he said.
Oral arguments are set for March before the Second Circuit.
Stop-and-frisk plaintiffs are represented by the Center for Constitutional Rights, Covington & Burling LLP,
Beldock Levine & Hoffman LLP, the New York Civil Liberties Union, The Bronx Defenders,
LatinoJustice and
Shearman & Sterling LLP.
The appeals are Floyd v. New York, case number 13-3088, and Ligon v. New York, case number 13-3123, in the U.S. Court of Appeals for the Second Circuit.
Anti-Corruption Subpoenas
Gov. Andrew Cuomo's Moreland Commission has issued a report that suggests more corruption arrests could be forthcoming, but his investigators also picked a fight with high-powered firm lawyers who serve in Albany's part-time Legislature.
Now they're in court to litigate over how much information firms including Ruskin Moscou Faltischek PC,
Farrell Fritz PC,
Harris Beach PLLC, Jordan & Kelly LLC,
Hiscock & Barclay LLP and
Weitz & Luxenberg PC have to share. And the Legislature is weighing in on their behalf.
Trial court rulings could come soon but the matter likely will end up before the state's appellate courts in 2014. Whatever the outcome, legal experts say, Albany's infamous “pay to play” culture will remain under the microscope.
"It's clear that, going forward, there will be greater scrutiny of public officials," said Buchanan Ingersoll Rooney PC litigator Stuart P. Slotnick.
The state Senate is represented by Michael J. Garcia of Kirkland & Ellis LLP. The Assembly is represented by Marc E. Kasowitz of
Kasowitz Benson Torres &
Friedman LLP.
The cases include Ruskin Moscou v. New York, case number 160932-2013, in Manhattan trial court.
Foreclosure 'Shadow Docket'
In June, New York Attorney General Eric T. Schneiderman filed a suit accusing
HSBC Bank USA of helping to spawn a massive "shadow docket" by foreclosing on homeowners without filing legal papers that could have led to quick settlements.
Many legal experts believe the potential for litigation against other banks is strong. But people steeped in the process also say that they are seeing signs of improvement in clearing out the docket delays — possibly a product of all the attention the issue has received.
"Within the last year, the process has sped up quite a bit," said Kate Lockhart of the Western New York Law Center, who tracks foreclosure case data.
HSBC is represented by Mark G. Peters of Edwards Wildman Palmer LLP and by Preston L. Zarlock of
Phillips Lytle LLP.
The case is New York vs. HSBC Bank USA, number 2013-1660, in Erie County Supreme Court.
Final Test For Local Fracking Bans
Early in 2014, New York's court of last resort is expected to hear
Norse Energy Corp. USA's challenge to a town ban on drilling in a case oil and gas lawyers see as a last-ditch effort to convince energy-sector businesses that Empire State is
worth their time.
Eight state judges now have found in favor of towns who don't want shale gas drilling at their doorsteps with rulings that say New York's Oil Gas and Solution Mining Law can't preempt local action. A ruling in favor of Norse would be a major blow to local governments and potentially open the door to fracking, depending on what happens with the state's current moratorium on the practice.
As Gov. Cuomo's administration has struggled to develop and implement fracking regulations, more than 50 New York municipalities have banned the practice, more than 100 municipalities have enacted moratoriums and scores more are considering similar actions.
“On the law it looks like the lower court decisions are correct,” said Riverkeeper President Paul Gallay, who is part of the state's powerful anti-fracking movement. “On policy, how can these oil and gas companies claim to have these localities' best interests at heart?”
Oral arguments are expected in the early part of 2014.
Norse Energy is represented by Thomas S. West of the West Firm PLLC. The town is represented by attorney Deborah Goldberg of Earthjustice.
The case is Norse vs. Dryden, number APL-2013-00245 in the New York State Court of Appeals.
NYC Supermarket Billionaire Goes To Washington
In a case that could affect other Empire State employers, John Catsimatidis, owner of the grocery chain Gristedes Foods Inc., has asked the U.S. Supreme Court to overturn the Second Circuit's ruling that he could be held personally liable as an “employer” under the Fair Labor Standards Act.
The former Republican candidate for mayor, on the hook to pay more than $2 million of a $3.5 million settlement in a wage-and-hour class action, calls the ruling unjust. But plaintiffs' lawyers say he is overplaying his hand.
"Mr. Catsimatidis’ contention that the Second Circuit’s standard 'exposes virtually every corporate officer and controlling shareholder to personal liability for his or her company's acts' is nonsense," said Levy Davis & Maher LLP employment litigator Jonathan A. Bernstein. "The court’s opinion makes clear that the officer/shareholder must have operational control. A passive investor has no exposure to liability."
The cert petition was filed Dec. 6.
Catsimatidis is represented by O'Melveny & Myers LLP.
The case is Catsimatidis v. Irizarry, number 13-683, in the U.S. Supreme Court.
Alex Rodriguez Battles To Stay In Baseball
Once A-Rod finds out what an arbitrator says his penalty for alleged doping should be, the New York Yankees superstar likely will
take his swing in court as he attempts to stay on the field and avoid a ban from
Major League Baseball.
A-Rod has brought a veritable kitchen sink of claims that suggest baseball's behavior was extra-contractual at best — and criminal at worst — and, if any of the claims prove viable, a scenario many call unlikely, the resulting litigation could impact baseball's relationship with its players.
“The suit makes allegations that could fall outside of the collective bargaining agreement," said Jeffer Mangels Butler & Mitchell LLP sports law chairman Daniel M. Grigsby. "It says 'With me baseball went beyond the CBA because I exercised my rights — and I'm fighting that.'"
An arbitration ruling was expected in late December or January, after which time the litigation is predicted to heat up.
Rodriguez is represented by Joseph Tacopina of Tacopina Seigel & Turano PC.
The case is Rodriguez v. Major League Baseball, number 1:13-cv-07097, in the U.S. District Court for the Southern District of New York.
--Editing by Jocelyn Allison. Editing by Rebecca Flanagan.
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Pete Brush, New York reporter
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