Sunday, May 9, 2021

Fordham Law Mourns the Loss of Professor Gail D. Hollister '70

Gail Hollister was the most dedicated teacher I have ever known.  She did the unglamorous work - tutoring students who were struggling, reading hundreds of applications for admission, taking on administrative tasks, preparing for class. 
- GWC
Fordham Law Mourns the Loss of Professor Gail D. Hollister '70

The Fordham Law community is mourning the passing of Professor Gail D. Hollister ’70, longtime Archibald R. Murray Professor of Law and Murray Professor of Law Emerita. Hollister was a member of the Fordham Law faculty for 40 years—from 1977 until her retirement in 2017. She was chosen by Dean Emeritus and Norris Professor of Law John D. Feerick ’61 to serve as the first leader of the newly created student affairs office while serving as a full-time faculty member. Hollister was also named director of legal writing in 1982, was the first holder of the Archibald R. Murray Chair of Law, and was named the first associate dean of administration in 2001. She also proudly served as an advisory board member of The Feerick Center for Social Justice, beginning in 2017. Hollister died on April 29 at the age of 75. She is survived by her husband, Edward G. Williams, her son, Gregory P. Williams, and her daughter-in-law, Sarah R. Williams.

“Gail spent virtually her whole adult life at Fordham Law—as a student, member of the faculty and associate dean,” said Dean Matthew Diller. “One of her most admirable qualities was her devotion to the students, putting them first and always being there with her office door open to answer students’ questions.”

“Gail has earned accolades from students over the years for her brilliance, for knowing tort law inside and out, and for her ability to respond to students’ questions with clear examples,” he continued. “She was a consummate teacher of law and a wonderful colleague, and she will be sorely missed by all.”

Professor Hollister on her graduation day from Fordham Law School in 1970. Photo: Courtesy of Gregory Williams.

Hollister majored in political science and graduated from the University of Wisconsin in 1967. She earned a J.D. from Fordham Law in 1970 and was a member of the Fordham Law Review and the Law School’s social committee.

After graduating from Fordham Law, Hollister clerked for the late Judge Inzer B. Wyatt, U.S. District Judge for the Southern District of New York. Hollister later was an associate at Webster, Sheffield, Fleischmann, Hitchcock & Brookfield, and practiced at Merrill Lynch, Pierce, Fenner & Smith where she specialized in securities regulation.

Hollister joined the Fordham Law School faculty the fall of 1977 under the leadership of Hon. Joseph McLaughlin, who served as dean from 1971 to 1981.

Wednesday, May 5, 2021

Federal Judge Strikes Down Eviction Moratorium - The New York Times

Federal Judge Strikes Down Eviction Moratorium - The New York Times

Why the Supreme Court’s Unanimous FTC Decision Changes Everything | Manatt, Phelps & Phillips, LLP - JDSupra

Why the Supreme Court’s Unanimous FTC Decision Changes Everything | Manatt, Phelps & Phillips, LLP - JDSupra

The Supreme Court has just made it significantly more difficult for the Federal Trade Commission (FTC) to obtain monetary relief in enforcement actions, terminating a practice the FTC has engaged in for decades to exact monetary recoveries. Unless and until Congress legislates a change, the FTC may no longer proceed directly to federal court under Section 13(b) of the FTC Act to do so, and, therefore, myriad contested judgments might need to be reopened.

What Happened

The applicable law has long been straightforward. Under the FTC Act, Congress granted the FTC authority to enforce the act’s prohibitions on “unfair or deceptive acts or practices” (UDAPs) by commencing administrative proceedings pursuant to Section 5. FTC administrative proceedings are a two-step process in which the FTC initially obtains a cease-and-desist order from an administrative law judge which is subject to direct appeal to a federal court of appeals. Then, once a cease-and-desist order becomes final, the FTC may seek injunctive relief, civil penalties and other relief including consumer redress if the cease-and-desist order is violated. Importantly, such relief requires proof that “the act or practice to which the cease and desist order relates is one which a reasonable man would have known under the circumstances was dishonest or fraudulent.”

In addition to administrative proceedings, the FTC may proceed directly to court in two circumstances. First, and applicable here, under Section 13(b) of the FTC Act, the FTC is entitled to seek a “permanent injunction” when a defendant “is violating, or is about to violate, any provision of law enforced by the” FTC. Second, where an FTC rule has been violated, or after entry of a cease-and-desist order, the FTC may proceed directly to court and seek penalties and monetary relief including damages and consumer redress, pursuant to Section 19. However, these two direct suit remedies also have knowledge requirements; for example, in the absence of a prior FTC order, the agency must likewise establish that the defendant had “actual knowledge or knowledge fairly implied on the basis of objective circumstances that such act is unfair or deceptive and is prohibited by such rule.”

Given these constraints, the FTC has for many decades taken the broad position that it is entitled to proceed directly to federal court to seek monetary penalties solely as part of the requested permanent injunctive relief, relying on Section 13(b) and the “equitable relief” provision in Section 5(l). While the statute itself dates back to 1914, Congress granted the FTC additional powers in 1973 to seek, directly, those court remedies and, in 1975, added Section 19 rights.

Monday, April 26, 2021

Promissory estoppel: applicant who relied on retracted job offer, recovers - Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, P.C.

Andrew Moskowitz Wins Appeal in New Jersey Supreme Court - Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, P.C.

 

March 11, 2021, Springfield, NJ– Andrew M. Moskowitz, Esq., a Partner in Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, PC,  was successful in a case involving an employee who left his job in reliance on a promise of employment.  In affirming the Appellate Division’s holding in relevant part, the New Jersey Supreme Court held that New Jersey’s Uniform Securities Law did not bar the employee’s claim in connection with a rescinded job offer.

In Goldfarb v. Solimine, the employee, Jed Goldfarb, had been working as a research analyst for an investment firm when he met the Defendant David Solimine.   Mr. Goldfarb alleged that, in reliance on the defendant’s verbal promise of employment, he left his job.  Thereafter, the offer of employment was rescinded.   A lawsuit was subsequently filed in which Mr. Goldfarb contended that, due to his reliance on Solimine’s offer of employment, he had suffered damages

Mr. Moskowitz originally tried the case in July 2016 and obtained a verdict on behalf of the plaintiff.  However, because the lower court imposed a cap on damages and due to a variety of other issues, he appealed the case to the Appellate Division.   In June 2019, the Appellate Division affirmed the verdict as to liability but concluded that Mr. Goldfarb  “was entitled to present evidence of his reliance damages.”  It therefore remanded the case for a new trial on  damages.

In relevant part, the New Jersey Supreme Court affirmed the Appellate Division’s holding upholding the jury’s finding of liability and held that the matter should be remanded “for a new trial for an appropriate assessment of plaintiff’s reliance damages.”

The case is Goldfarb v. Solimine, A-24-19/083256 (Feb. 18, 2021) (available at https://njcourts.gov/attorneys/assets/opinions/supreme/a_24_19.pdf)

Thursday, April 22, 2021

Scotus: Life without parole: "no finding of incorrigibility" needed to sentence juvenile to LWOP

OTHERWISE: Scotus: Life without parole: "no finding of incorrigibility" needed to sentence juvenile to LWOP: In Jones v. Mississippi The United States Supreme Court, has narrowed, practically reversed precedent limiting juvenile life without parol...

Scotus crimps FTC right to restitution, other equitable relief - AMG Capital Management v. FTC

 In a unanimous opinion for the court in AMG Capital Management v. FTC Justice Stephen Breyer has stripped the Federal Trade Commission of a prefered tool: using its statutory power to seek a permanent injunction to compel restitution for anti-competitive and unfair trade practices.  The Court finds that the FTC lacks "explicit" power to go to directly to court for restitution and equitable relief. 

Reversing the Ninth Circuit, the Syllabus explains that the FTC must first go through the ordinary administrative law process:

The Federal Trade Commission filed a complaint against Scott Tucker and his companies alleging deceptive payday lending practices in violation of §5(a) of the Federal Trade Commission Act. The District Court granted the Commission’s request pursuant to §13(b) of the Act for a permanent injunction to prevent Tucker from committing future violations of the Act, and relied on the same authority to direct Tucker to pay $1.27 billion in restitution and disgorgement. On appeal, the Ninth Circuit rejected Tucker’s argument that §13(b) does not authorize the award of equitable monetary relief.

Held: Section 13(b) does not authorize the Commission to seek, or a court to award, equitable monetary relief such as restitution or disgorgement. Pp. 3–15. (a) Congress granted the Commission authority to enforce the Act’s prohibitions on “unfair or deceptive acts or practices,” 15 U. S. C. §§45(a)(1)–(2), by commencing administrative proceedings pursuant to §5 of the Act. Section 5(l) of the Act authorizes the Commission, following completion of the administrative process and the issuance of a final cease and desist order, to seek civil penalties, and permits district courts to “grant mandatory injunctions and such other and further equitable relief as they deem appropriate in the enforcement of such final orders of the Commission.”


Tuesday, April 13, 2021

Thursday, April 8, 2021

Robert Rabin: On Compensation And Remedial Relief For Disasters In The American Legal System :: SSRN

Some Thoughts On Compensation And Remedial Relief For Disasters In The American Legal System by Robert L. Rabin :: SSRN

Abstract

We live in a time when disasters, tragically, have taken on new meaning. Natural disasters arise with greater frequency and growing intensity. And responsible party disasters—disasters that are man-made—dominate the headlines, generating fear and a sense of disbelief. Both preventive measures beforehand, and restorative efforts on behalf of victims thereafter, raise enormously difficult questions of how to best address these momentous events.

This essay focuses on the restorative efforts: compensation and remedial relief for disasters in the United States legal system. The essay sets out to briefly describe the multi-layered system in the U.S. for addressing the consequences of catastrophic loss, which is framed in a typology based on a straightforward, two-fold approach.

Part I discusses compensation for natural disasters, where a combination of legislative no-fault compensation systems, privately held insurance, and governmental assistance programs compensate property loss, which is the dominant, although by no means exclusive, source of harm. Part II turns to responsible party disasters—where tort serves as the default system for seeking redress for physical harms. In addition to tort, Part III considers other options for securing compensation, such as targeted informal settlement schemes. Finally, the essay concludes with a brief note on the shortcomings of each of these strategies and suggest the need for a hybrid approach that draws upon each of the positive elements in our patchwork system.

Rabin, Robert L., Some Thoughts On Compensation And Remedial Relief For Disasters In The American Legal System (February 24, 2021). Northwestern University Law Review, Vol. 115, 2020, Available at SSRN: https://ssrn.com/abstract=3792455