Yearly Archives of 2021

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ECBAWM Files Amicus Brief in the Fourth Circuit Arguing Against District Court’s Holding on Sovereign Immunity

ECBAWM filed an amicus brief on behalf of Aziz Huq and Erwin Chemerinsky in the United States Court of Appeals for the Fourth Circuit today in support of Jane Roe, the appellant in Roe v. United States, et al. The brief argues that the District Court erred by holding that sovereign immunity bars Roe’s claims against federal officials in their official capacities seeking injunctive and declaratory relief. ECBAWM partners Ilann M. Maazel and Sam Shapiro authored the brief.

The brief can be read in its entirety here.

Article

Second Circuit: Forensic Examiner Not Entitled to Qualified Immunity

In a significant qualified immunity ruling, the U.S. Court of Appeals for the Second Circuit denied a state ballistics examiner’s motion to dismiss a 42 U.S.C. § 1983 civil rights lawsuit.

ECBAWM client Vernon Horn was incarcerated for over 17 years for a crime he did not commit. His wrongful conviction stemmed from exculpatory evidence that was concealed before and during trial: New Haven Police detectives hid phone records in the basement of a detective’s house because they did not support the case against Horn, and the Connecticut State Police ballistics examiner failed to disclose that he prepared a second ballistics report that falsely implicated Mr. Horn because the original report would have exonerated him.

Following their release from prison in 2018, Mr. Horn and his co-defendant Marquis Jackson brought civil actions against the City of New Haven and certain law enforcement officials for violating their constitutional due process rights under Brady v. Maryland.

The state ballistics examiner, James Stephenson, filed a motion to dismiss the lawsuits against him on the grounds that he is entitled to (a) qualified immunity for failing to turn over exculpatory evidence and (b) absolute immunity for preparing the second false ballistics report because he did so at the prosecutor’s direction. The U.S. District Court for the District of Connecticut denied Stephenson’s motion to dismiss and he appealed to the Second Circuit.

In upholding the lower court’s ruling and denying Stephenson’s motion to dismiss, the Second Circuit wrote that “no reasonable forensic examiner in Stephenson’s position” would have concluded that Brady did not apply. The Court also concluded, “The allegations here are consistent with [Horn’s] theory that Stephenson independently decided to manipulate the margin of error upon learning that the memo … would weaken the state’s case against [Horn].”

Vernon Horn is represented by ECBAWM lawyers Ilann Maazel and Nick Bourland along with co-counsel Doug Lieb and Tamar Birckhead.

Article

ECBAWM Files Housing Discrimination Complaint Against Dawn Homes Management, Large Upstate New York Landlord

On August 11, 2021, ECBAWM filed a housing discrimination complaint on behalf of Westchester Residential Opportunities, Inc. (“WRO”) against Dawn Homes Management with the New York State Division of Human Rights. WRO alleges that Dawn Homes, the operator of 36 apartment complexes in upstate New York, does not rent to tenants with rental subsidies or vouchers in violation of state law. Based on undercover testing done by WRO, the complaint alleges that Dawn Homes rental agents told prospective applicants that the company does not accept vouchers or applies minimum income requirements that virtually all voucher holders cannot meet, and that some agents steered testers to nearby apartments not owned by Dawn Homes.

Press 

“Westchester Residential Opportunities Alleges Housing Discrimination by Dawn Homes Management at Seven Apartment Complexes across New York State,” Westchester Residential Opportunities, Inc. 

“Complaint Alleges Housing Discrimination By Albany Group,” Albany Union Times

Article

ECBAWM Partner Zoe Salzman Featured in “Above the Law” Article About Remote Litigation

Litigator and ECBAWM partner Zoe Salzman explains the opportunities and challenges in litigating cases remotely in the Above the Law article “How Courts and Litigators Are Making the Best of Remote Practice.” Salzman, who recently chaired the program “Current Trial Issues in Federal Civil Practice” for the Practising Law Institute, expressed hope that the benefits of remote litigation – like reduced travel time and fewer delays – will continue beyond the pandemic. “[This way] judges don’t waste time waiting for lawyers to show up, the lawyers can be there at the right time and only devote the time for the actual proceeding,” Salzman said. “The system works well and it’s good for clients.”

Article

ECBAWM Partner Debbie Greenberger Argues for Overhaul of New York State’s Sexual Abuse Statute of Limitations

In an op-ed published in City Limits, ECBAWM partner Debbie Greenberger and co-author Andrew Shubin of Shubin Law argue that New York State must overhaul the statute of limitations for sexual abuse “to ensure that victims, no matter their age, have continuing access to the courts.”

Although the New York Child Victims Act created a two-year “window” for civil sexual assault claims that would otherwise be time-barred, this window closes on August 14, 2021. As Ms. Greenberger and Mr. Shubin point out, because of the trauma survivors experience and the actions perpetrators and their institutional enablers purposefully take to silence victims, the average age to report childhood sexual abuse is 52 years old – far after the applicable statute of limitations before the Child Victims Act.

“Continuing legal reform is urgent to prevent the statute of limitations from offering refuge to sexual abusers and the institutions—schools, health care providers, camps, athletic, and religious organizations—who protect perpetrators who present ongoing and potent dangers,” write the authors. “Victims must be able to hold institutions accountable for facilitating and covering up their employee’s sexual abuse and for their indifference to the wellbeing, and suffering, of the children in their care.”

You can read more about the closure of the New York Child Victims Act in Insider‘s article “Lawyers are rushing to file child sexual abuse lawsuits before New York’s statute of limitations goes back into effect.“

Article

ECBAWM Wins Prison Release for Christopher Ellis, Who Served 30 Years After Being Wrongfully Convicted

On Monday, August 9, New York State Supreme Court Justice Patricia A. Harrington ordered the release from prison of Christopher Ellis, a man who served over 30 years for a crime he did not commit.

Mr. Ellis was accused of committing a murder on Long Island in 1990. Despite no physical evidence against him, Mr. Ellis, who is Black, was investigated by white detectives, convicted by an all-white jury, and sentenced to prison in 1992. Last month his conviction was vacated because the police had concealed multiple murder suspects from the defense and, apparently, the prosecution.

“The police showed absolutely no regard for Chris,” said ECBAWM partner Ilann Maazel, noting that during Mr. Ellis’ 18-hour interrogation he was denied food and drink and repeatedly roused from sleep. “He was worthless to them. And he is one of many young Black men who have had that experience.”

The Nassau Country District Attorney’s Office will decide by September 20 whether to retry Mr. Ellis.

Mr. Ellis is represented by Mr. Maazel and ECBAWM associate Scout Katovich.

Press
“After Key Evidence Was Withheld, 2 Men Spent 3 Decades in Prison,” The New York Times
“Man jailed for murdering Hofstra coach has conviction overturned after decades behind bars,” New York Post
“Judge orders Hempstead man released after 30 years behind bars,” Newsday
“‘I just want to run to the car’: NY man leaves prison after wrongful conviction,” PIX 11
“Long Island man’s conviction in 1990 murder of Hofstra coach tossed,” FOX 5
“Nassau man’s murder conviction overturned after 3 decades behind bars,” News 12 Long Island [VIDEO]

Article

Second Circuit Court Affirms Ruling that Trump Family, Corporation Cannot Compel Arbitration in ACN Fraud Case

On July 28, 2021, the United States Court of Appeals for the Second Circuit affirmed the District Court’s ruling that Donald Trump, his immediate family, and The Trump Corporation cannot compel arbitration of the fraud case pending against them in the Southern District of New York. The case, filed in the fall of 2018, alleges the Trumps defrauded investors into purchasing memberships in a multi-level marketing scheme called ACN. The Trumps had appealed to the Second Circuit arguing that the fraud case could only proceed in private arbitration because of agreements that the investors had signed with ACN. The Second Circuit affirmed the District Court’s denial of the Trumps’ motion to compel arbitration and ruled that the Trumps and ACN were never sufficiently connected such that the investors would have understood that any of their contractual obligations with ACN would correspond to obligations with the Trumps.

“We are glad that the Second Circuit has affirmed Judge Schofield’s well-reasoned opinion. We can now press forward in our fight to obtain justice for our clients and hard-working consumers across the county who fell victim to Donald Trump and his family’s fraud. We look forward to receiving discovery from the Trumps, ACN, and the producers of ‘The Apprentice’ as we move into the next stage of our litigation,” said Andrew G. Celli, Jr., an ECBAWM attorney for the Plaintiff investors.

The investors are represented by ECBAWM attorneys Andrew G. Celli, Jr., Jonathan S. Abady, Matthew D. Brinckerhoff, O. Andrew F. Wilson, Katherine Rosenfeld, Sam Shapiro, David Berman, and Nick Bourland.

Article

New York Times Publishes Letter from ECBAWM Partner Zoe Salzman: “Holding Rapists Accountable”

In a letter published on July 23 by The New York Times, ECBAWM partner Zoe Salzman provides additional insight into the reasons sexual assaults are frequently underreported to the police and the vital role civil lawsuits often play in providing justice for survivors.

“[Going to the police] brings up all the burdens of re-traumatization and re-victimization, with very little promise of conviction,” writes Salzman. “That means that until our criminal justice system is seriously overhauled, a civil lawsuit is often the only viable option survivors have to hold those who raped them accountable.”

Article

CNN, Sports Illustrated, and Other Major Media Cover Latest OSU Sexual Assault Lawsuit

Major media outlets have covered the latest lawsuit filed by ECBAWM against The Ohio State University for the role it played in facilitating and concealing the sexual abuse of student-athletes by its former employee Dr. Richard Strauss.

Press Coverage 
“Nearly 30 new alleged abuse victims sue The Ohio State University,” CNN
“More Men Were Abused by Former Ohio State Doctor, New Lawsuit Says,” Sports Illustrated
“More men were abused by former Ohio State doctor, new lawsuit says,” ESPN
“New Lawsuit: More Men Were Abused by Ohio State Doctor,” US News & World Report
“New lawsuit: More men were abused by Ohio State doctor,” Associated Press

Article

ECBAWM Files Third Lawsuit Against The Ohio State University for Its Role in Facilitating and Concealing Sexual Assaults

ECBAWM has filed a lawsuit against The Ohio State University (“OSU”) on behalf of 29 survivors of sexual assault by former team doctor Richard Strauss.

The plaintiffs in Moxley v. OSU include Timothy Moxley, who was abused by Strauss first multiple times as a high school student at a wrestling camp held on OSU’s campus and then again as a student athlete at OSU, and 28 other men who were sexually assaulted, abused, molested, and harassed by Strauss while he was employed by OSU.

A 2019 investigation commissioned by OSU and conducted by the law firm Perkins Coie uncovered at least 177 abuse survivors and concluded that OSU had repeatedly failed to investigate or address complaints about Strauss.

Several months later, a report commissioned by Ohio Governor Mike DeWine also concluded that OSU failed to protect or inform students – even after the school was notified in 1996 by the State Medical Board about Strauss’ conduct. Instead of working to identify other students who had been abused by Strauss, as OSU told the State Medical Board it would, the school instead destroyed the health care records of students who had been examined by Strauss.

The firm has previously filed two separate lawsuits against OSU for its facilitation and concealment of sexual assaults by Strauss: Snyder-Hill v. OSU in 2018 and Khalil v. OSU in 2019.

OSU previously admitted that Strauss committed 47 rapes and 1,429 sexual assaults of student-patients while employed by OSU.

The Moxley plaintiffs are represented by ECBAWM’s Ilann M. Maazel, Debra Greenberger, and Marissa Benavides, along with Scott Elliot Smith LPA and Public Justice.

If you have been affected by the sexual abuse at Ohio State, please call us at 212-763-5042, email ohiosurvivors@ecbawm.com, or use this form.

Press Coverage
“Twenty-nine new plaintiffs sue Ohio State over university’s knowledge of Strauss abuse,” The Columbus Dispatch

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