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Federal Court Denies Motion to Dismiss ECBAWM’s False Positives Class-Action Against Microgenics Corp. and Thermo Fisher Scientific, Inc.

On March 22, 2021, Federal Magistrate Judge Vera M. Scanlon of the Eastern District of New York denied a motion brought by Microgenics Corporation and Thermo Fisher Scientific, Inc. to dismiss a proposed class-action lawsuit filed by ECBAWM and Prisoners’ Legal Services of New York on behalf of state prisoners who were severely punished based solely on the unreliable drug testing services supplied by Defendants. The Court’s decision means that ECBAWM and PLS-NY will continue to press forward with their efforts to hold Defendants accountable for the severe harms hundreds of people suffered, including being wrongfully placed in solitary confinement, being removed from family reunification programs, and even being held in prison beyond their sentences.

ECBAWM’s Matthew D. Brinckerhoff and Ananda Burra represent the plaintiffs.

Article

ECBAWM and Public Citizen Represent Amici Legal Scholars Supporting Amazon Workers in Second Circuit Case

ECBAWM, along with Public Citizen Litigation Group, represents eleven law professors with expertise in civil procedure and federal courts in an amici curiae brief filed in Derrick Palmer, et. al v. Amazon, Inc, et al in the Second Circuit Court of Appeals.

In Palmer v. Amazon, the plaintiffs allege that defendants Amazon.com, Inc. and Amazon.com Services, LLC (collectively, “Amazon”) failed to comply with New York State health and safety requirements during a deadly pandemic. The lower court granted Amazon’s motion to dismiss, ruling that “pursuant to the doctrine of primary jurisdiction,” the plaintiffs were required to seek relief through the federal Occupational Safety and Health Administration (OSHA) and not the courts.

The law professors, who hail from New York University School of Law, City University of New York School of Law, University of Texas School of Law, George Washington University Law School, New York Law School, Benjamin N. Cardozo School of Law, Wake Forest University, University of Alabama School of Law, and Georgetown University Law Center, filed their brief in support of defendants’ appeal of the decision to dismiss.

The district court erred in dismissing “state-law claims arising from the defendants’ allegedly unsafe working conditions,” by relying “on an expansive conception of primary jurisdiction that finds no warrant in the precedent of the Supreme Court or in this Court,” the professors explained in the brief. The professors request that the Second Circuit reverse the lower court’s decision with respect to the application of the primary jurisdiction doctrine.

ECBAWM partner Debbie Greenberger represents the amici curiae law professors.

Article

Court Certifies Class in ECBAWM, STOP Religious Headcovering Lawsuit

On February 16, 2020, federal judge Analisa Torres of the United States District Court granted Plaintiffs’ motion for class certification on behalf of all New Yorkers forced to remove their religious head coverings for photographs while in NYPD custody. ECBAWM filed the case for the Plaintiffs, together with the Surveillance Technology Oversight Project (“STOP”). The decision means that Plaintiffs’ case for damages will proceed as a class action and that, if found liable, the City must pay damages to each and every individual whose religious rights were violated under the NYPD policy.

“Every New Yorker whose religious head covering was forcibly removed by the NYPD in violation of their religious rights should be entitled to compensation. This decision gives us a mechanism to make that happen,” said O. Andrew F. Wilson, a partner at ECBAWM.

This ruling followed Judge Torres’s September 30, 2020 rejection of the City of New York’s motion to dismiss Plaintiffs’ claims under the Federal Free Exercise Clause and the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), both of which protect the rights of all New Yorkers to express their beliefs through religious clothing.

Judge Torres wrote: “The Policy compels all individuals to remove religious headwear when sitting for a booking photograph…As a result, every member of the class will have the same claim because each member objects, due to their sincerely-held religious beliefs, to some or all of the activity the policy compels.”

Emma L. Freeman, an attorney at ECBAWM, said: “The Court’s ruling confirms that all New Yorkers—no matter what their religious practices—deserve compensation for being forced to take an uncovered mug shot.”

“This lawsuit already blocked the NYPD from removing New Yorkers’ head coverings in the future, but today’s decision brings us one step closer to justice for New Yorkers who were harmed in the past,” said Surveillance Technology Oversight Project Executive Director Albert Fox Cahn. “Far too many New Yorkers have already been targeted, humiliated, and stripped for their religious head coverings. These New Yorkers deserve justice for what they’ve suffered, and it’s long past time for the City to pay.”

Plaintiffs’ class action Complaint is available here. The Court’s Decision and Order certifying the class is available here.

Plaintiffs are represented by ECBAWM attorneys Matthew Brinckerhoff, O. Andrew F. Wilson, and Emma L. Freeman, as well as S.T.O.P.’s Albert Fox Cahn.

If you or anyone you know has been forced to remove a religious head covering while in NYPD custody, please contact ECBAWM through its website.

Article

Sports Illustrated Article Highlights Need for Justice in Ohio State University Sex Abuse Scandal

The October 5 Sports Illustrated cover article “Why Aren’t More People Talking About the Ohio State Sex Abuse Scandal?” describes the horrific abuse some of ECBAWM’s 93 clients suffered at The Ohio State University. This is one of the biggest sex abuse scandals in the history of American education. Author Jon Wertheim presents a well-researched, in-depth story of OSU’s 40-year betrayal of its own students.

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.

Article

Federal Court Rejects Motion to Dismiss ECBAWM’s Religious Head Covering Class Action Against the City of New York

On September 30, 2020, federal judge Analisa Torres denied a motion to dismiss brought by the City of New York against a class-action lawsuit filed by ECBAWM and the Council on American-Islamic Relations, New York on behalf of all New Yorkers forced to remove their religious head coverings for mug shots while in NYPD custody. The Court upheld Plaintiffs’ claims under the Federal Free Exercise Clause and the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), both of which protect the rights of all New Yorkers to express their beliefs through religious clothing. The Court’s decision means that ECBAWM and CAIR-NY will continue to press forward with their efforts to end the NYPD’s practice of forcing arrestees to undress for mug shots and vindicate the rights of all who have been subjected to this harmful policy.

“This decision allows all New Yorkers to pursue their claims against the NYPD for gratuitously stripping them of their religious clothing,” said O. Andrew F. Wilson, a partner at ECBAWM.

“The Court’s decision recognizes that the U.S. Constitution and federal law both protect the right of every New Yorker to wear their chosen religious headgear—even while in police custody,” said ECBAWM attorney Emma Freeman. “This is a significant victory for people of all faiths.”

ECBAWM’s O. Andrew F. Wilson and Emma Freeman represent the plaintiffs.

Article

$3.2 Million Settlement Reached in Illegal Wiretap Class Action

A federal class action brought on behalf of individuals whose communications were illegally intercepted through a scheme orchestrated by a former Brooklyn Assistant District Attorney has been settled with New York City and employees of the Kings County District Attorney’s Office for $3.2 million.

ECBAWM attorneys Richard D. Emery, Samuel Shapiro, and Scout Katovich, along with co-counsel Wiggin & Dana LLP, represent the class, whose communications were intercepted as the result of former Brooklyn ADA Tara Lenich creating fake court orders to fraudulently obtain wiretaps for the phones of a detective with whom Lenich had an affair and a woman Lenich believed to be in a romantic relationship with the detective.

Filed in the United States District Court for the Eastern District of New York, the agreement settles Federal Wiretap Act allegations against the City of New York and employees of the Kings County District Attorney’s Office. Ms. Lenich did not participate in the settlement.

You can read more about this case in Law360. The case is Rosenfeld et al. v. Lenich et al. (1:18-cv-06720, E.D.N.Y.).

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ECBAWM and Co-Counsel File Medical Expert’s Report Finding Serious Failures in Jail’s Coronavirus Response

On April 30, 2020, ECBAWM along with co-counsel the Cardozo Civil Rights Clinic, Alexander A. Reinert, and Debevoise & Plimpton LLP, filed a motion for preliminary injunction in Chunn v. Edge, 20 Civ. 1590 (E.D.N.Y.), a class-action lawsuit challenging the response of the Metropolitan Detention Center (MDC) to the COVID-19 pandemic. The motion seeks relief for medically vulnerable people incarcerated in the MDC and improved conditions. The report submitted in support of the motion by Dr. Homer Venters, a leading expert in health services for incarcerated people, describes the failures of the MDC to appropriately respond to protect the health and safety of people confined in the MDC and staff. After Respondent moved to strike the report, U.S. Magistrate Judge Roanne Mann denied the Respondent’s motion less than 24 hours later.

ECBAWM attorneys Katie Rosenfeld, Andrew Wilson, Sam Shapiro, and Scout Katovich represent petitioners and the putative class.

“Medical Expert: Federal Jail Intentionally Destroying Medical Records and Hiding Extent of Coronavirus Behind Bars,” The Intercept
“Doctor issues damning report on Brooklyn federal jail’s handling of coronavirus outbreak, calling out botched medical response and inadequate protective gear,” New York Daily News
“Brooklyn Judge Finds ‘Cautious Optimism’ in Federal Jail’s Response to COVID-19,” New York Law Journal
“Doctor Sounds Alarm: Conditions Inside Federal Jail In Brooklyn Are Promoting Spread Of COVID-19,” Gothamist

Article

Trump Family’s Effort to Compel Arbitration of Fraud Case Denied

On April 8, 2020, a federal court denied the attempt of Donald Trump, his immediate family, and The Trump Corporation to 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 argued that the court should stay the fraud case in favor of individual arbitration based on agreements that the investors had signed with ACN. The court denied the motion on the grounds 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.

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

“MGM Told to Hand Over Trump’s ‘Apprentice’ Tapes in Scam Suit,” Bloomberg Quint

 

Article

ECBAWM Client Files Religious Head Covering Class Action Against Yonkers

Together with the New York chapter of the Council on American-Islamic Relations (CAIR-NY), Emery Celli Brinckerhoff Abady Ward & Maazel LLP (ECBAWM) filed a class action civil rights law lawsuit in federal court seeking an injunction to block the Yonkers Police Department (YPD) from removing arrestees’ religious head coverings for mug shots and while in custody.

The lawsuit claims that the YPD maintains a policy that forces arrestees to remove their religious head coverings while in custody—sometimes for a mug shot that is kept forever, visible to anyone with access to the YPD’s records, and sometimes for no reason at all. The YPD enforces this policy against all arrestees who wear religious head coverings—even when those head coverings, like a hijab, turban, or yarmulke, leave the entire face unobstructed.

CAIR-NY and ECBAWM filed the lawsuit this morning in the U.S. District Court for the Southern District of New York, alleging that the YPD removal policy violates the New York State Constitution, the First Amendment to the U.S. Constitution, and the Religious Land Use and Institutionalized Persons Act (RLUIPA). As the lawsuit notes, municipalities across the country allow arrestees to retain religious head covering for their booking photos. In addition, the New York State Department of Motor Vehicles allows applicants to retain religious head coverings for driver’s license photos; the U.S. State Department maintains the same accommodation for passport photos.

In a statement, the CAIR-NY Litigation Director, Ahmed Mohamed, said: “It is unacceptable that the City of Yonkers would cling to a policy that degrades and humiliates Muslim women, and others, by forcing them to remove their head covering against their sincerely held religious beliefs. This policy is illegal. Ms. Malkawi should be applauded for her courage to step forward and fight this unjust policy that has caused her and many others unimaginable pain and suffering.”

“The Yonkers policy is out of step with the Constitution, federal law, and a growing consensus of national law departments that all respect people’s rights to wear religious head covering,” said ECBAWM attorney O. Andrew F. Wilson.

“There is no legitimate need for law enforcement to remove religious head coverings for mug shots or any other purpose,” said ECBAWM attorney Emma L. Freeman. “In 2020, the state should not be coercing people in its custody to violate their religious beliefs.”

Ihsan Malkawi, a practicing Muslim-American woman, brings the case on behalf of herself and others impacted by the policy.  While in the YPD’s custody, Ms. Malkawi was forced to endure a full day and night without her hijab, and was paraded uncovered past numerous strangers—many men—throughout the YPD’s facilities and while in court for her arraignment.

According to the complaint, “Yonkers Police Department (YPD) officers instructed Ihsan Malkawi . . . to remove her hijab so they could photograph her. Ms. Malkawi pleaded with them not to remove it. She explained that her hijab—a headscarf she wears daily to cover her hair and signify modesty and devotion to the Muslim faith—is not a fashion accessory, but an essential component of her religion. The officers did not listen. They told Ms. Malkawi—falsely—that the law required her to remove her hijab. Distraught by this coerced violation of her religious practice, yet fearful of the legal repercussions if she did not comply, Ms. Malkawi wept while she did as she was told.”

Ms. Malkawi is represented by ECBAWM attorneys O. Andrew F. Wilson and Emma Freeman.

For more information, read coverage from The Huffington Post, NBC News, and Lohud.

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Class Action Seeks Release of 540 People and Changes to Protect Others Confined at Brooklyn MDC from the Novel COVID-19 Virus

Petitioners Hassan Chunn, Nehemiah McBride, Ayman Rabadi, and Justin Rodriguez filed a class-action lawsuit today against Warden Derek Edge in federal court. The case seeks the immediate release of approximately 540 people most vulnerable to succumbing to COVID-19 and a special master to oversee improvements in the conditions of confinement at Brooklyn’s federal jail, Metropolitan Detention Center (“MDC”), to combat the spread of the virus.

New York City is the epicenter of the Country’s struggle with COVID-19. The risks posed by COVID-19 to people confined in jails and prisons—in terms of transmission, exposure, and harm—are stark and alarming. For reasons beyond their control, people in jails and prisons cannot practice social distancing, control their exposure to large groups, practice increased hygiene, wear protective clothing, obtain specific products for cleaning or laundry, avoid high-touch surfaces, or sanitize their own environment. People in jails and prisons are more vulnerable and susceptible to the risks of coronavirus because they are more likely to have chronic underlying health conditions, such as diabetes, heart disease, chronic lung and liver diseases, asthma, and lower immune systems from HIV. People have limited opportunities to access medical care under normal circumstances in jails; medical facilities are limited, and as staff become sick, fewer people are present to care for those who remain confined.

The outbreak of a highly infectious, deadly virus in a closed detention setting is a disaster, calling for urgent and decisive action to protect the health of those confined in the jail, those who work there, and the medical professionals who will treat those who become infected.

The lawsuit alleges that Respondent Warden Derek Edge has not taken steps to protect Petitioners from the substantial risk of harm posed by COVID-19, nor could he under the MDC’s current conditions. It seeks immediate relief on the grounds that every hour that Petitioners are held under these circumstances, they are exposed to the substantial risk of a COVID-19 infection, with a substantial risk of death to follow and that continuing to hold vulnerable people under these circumstances violates their Constitutional rights.

ECBAWM attorneys Katie Rosenfeld, Andrew Wilson, Sam Shapiro, and Scout Katovich, together with the Cardozo Civil Rights Clinic, and Alexander A. Reinert, represent petitioners and the putative class.

“Jails Are Petri Dishes’: Inmates Freed as the Virus Spreads Behind Bars,” New York Times

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