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Class Action Lawsuit Against Aetna Filed by Emery Celli Brinckerhoff Abady Ward & Maazel and NWLC Alleges LGBTQ Discrimination

The suit alleges that Aetna’s fertility treatment reimbursement policy discriminates against LGBTQ individuals

ECBAWM and the National Women’s Law Center (NWLC) have filed a class action lawsuit against Aetna alleging discriminatory practices against LGBTQ policy-holders seeking fertility treatments. Emma Goidel, the plaintiff in the suit, and her spouse seek to end this discriminatory policy and to recoup a portion of the out-of-pocket costs they have incurred while undergoing IVF and IUI fertility treatments.

The suit alleges that Aetna’s policy for coverage of IVF and IUI fertility treatments unfairly discriminates against LGBTQ couples by requiring them to pay out of pocket for 12 cycles of IUI before Aetna will provide them with coverage. However, Aetna’s policy provides immediate coverage, without any out-of-pocket cost, to heterosexual couples who have not gotten pregnant after having unprotected sex for 12 months.

“Aetna’s policy is effectively a tax on LGBTQ policy-holders,” said Noel León, an ECBAWM attorney representing Ms. Goidel. “It prevents LGBTQ individuals who are unable to shoulder the considerable cost of fertility treatments — disproportionately those of color — from becoming pregnant and thus denies their equal rights to start families.”

Ms. Goidel and her spouse are enrolled in Aetna’s Student Health Plan for Columbia University, which provides broad coverage for IUI and IVF for heterosexual couples. As a result of Aetna’s policy, however, they have been forced to pay tens of thousands of dollars for fertility treatment. They estimate that they paid nearly $45,000 for one successful pregnancy. The plaintiff is suing on behalf of herself and other LGBTQ individuals to end this discriminatory policy enforced by Aetna.

“It is everyone’s right to create a family, and to try to biologically bear their own children if they so choose,” said Ms. Goidel. “Health insurance must protect that right by covering medical costs equally for those who need fertility treatment to reproduce—not discriminating against queer people.”

“Your insurance company should never be the reason you are denied the chance to start a family,” said Michelle Banker, Director of Reproductive Rights and Health Litigation at NWLC, who is representing the plaintiff. “Emma was forced to pay significantly more and prevented from equal access to care, simply because she is queer. Aetna must change its illegal policy immediately — for patients like Emma, and especially for those who cannot afford this care. Discrimination should have no place in health care and we will make sure insurance companies like Aetna are held accountable.”

Individuals whose insurance policies unfairly discriminate against LGBTQ individuals or couples seeking fertility treatments can provide the attorneys with more information in three ways: by phone at (202) 956-3077, by email to LGBTQFertilityLawsuit@nwlc.org, or by filling out this Google form: https://bit.ly/LGBTQFertilityLawsuit.

Plaintiffs are represented by ECBAWM attorneys Noel León and Zoe Salzman and NWLC attorneys Michelle Banker, Sunu Chandy, Lauren Gorodetsky, and Alison Tanner.

Press
“Aetna Accused of Denying Coverage of Fertility Treatments for LGBTQ+ Policyholders,”  NewYork Law Journal
“Aetna sued over fertility treatment coverage for LGBTQ+ people,” Reuters
“Aetna hit with lawsuit alleging discrimination against LGBTQ patients,” Modern Healthcare

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ECBAWM Partner Zoe Salzman Quoted in Law360 Article About Mandatory Arbitration in Bias Claims

ECBAWM partner and civil rights litigator Zoe Salzman was quoted in the Law360 article “New York’s Ban on Bias Claim Arbitration Drubbed in Court,” which explores Section 7515, the provision of New York’s Civil Practice Law and Rules (CPLR) that prohibits mandatory arbitration clauses “except where inconsistent with federal law.”

Victims of discrimination and sexual harassment have cited CPLR § 7515 as the basis for voiding mandatory arbitration agreements. However, as the Law360 article points out, courts have largely refused to void mandatory arbitration agreements on the grounds that CPLR § 7515 is preempted by the Federal Arbitration Act (FAA).

Salzman points out that the FAA was passed in 1925, when the concepts of discrimination and sexual harassment “simply didn’t exist.” It was rooted in the exercise of Commerce Clause powers and crafted as a means to efficiently address business and contract disputes. “The idea that it would apply to fundamental human rights issues was never contemplated,” said Salzman.

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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.”

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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.”

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ECBAWM Sponsors of NYU School of Law’s Robert and Helen Bernstein Institute for Human Rights

ECBAWM is pleased to announce that the firm will sponsor NYU School of Law’s Robert and Helen Bernstein Institute for Human Rights (“Bernstein Institute”), reflecting ECBAWM’s historical commitment to defending human and civil rights and ensuring the integrity of judicial and governmental systems. “The objectives and approach of the Bernstein Institute closely align with ours,” said ECBAWM partner Zoe Salzman, who was recently named to the Institute’s Board of Advisers. “Our sponsorship is an opportunity to further the goals we’re all working toward together.”

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ECBAWM Partner Zoe Salzman Named to Board of Advisers for NYU School of Law’s Robert and Helen Bernstein Institute for Human Rights

ECBAWM partner Zoe Salzman has been named as a Member of the Board of Advisers of NYU School of Law’s Robert and Helen Bernstein Institute for Human Rights (“Bernstein Institute”). The Bernstein Institute engages in innovative research, education and advocacy to support projects around the world. Its work is focused in two major areas: encouraging and defending dissent, and legal empowerment so that the law is accessible to everyone. Its programs include the Jailhouse Lawyers’ Initiative, which advocates for the legal empowerment of current and former jailhouse lawyers and law clerks – a process central to ending the cycle of incarceration and enabling communities to obtain freedom from the inside out. As part of its holistic approach, the Bernstein Institute engages with law students, academics, interdisciplinary allies, and, most importantly, the communities that are affected by human rights violations.

The Bernstein Institute is named for Robert L. Bernstein, the founder of Human Rights Watch, and his wife Helen. Bernstein served as the Chair of Human Rights Watch from 1978-1998 and as the Founding Chair Emeritus from 1999 until his death in 2019.

Salzman will join other leaders in law, government, foreign policy, and business in providing strategic guidance to the Bernstein Institute. An experienced trial attorney, Salzman has spearheaded groundbreaking civil rights cases including a class action that ended the Tampon Tax in New York and a landmark victory in the First Department Appellate Division that rape and sexual assault are necessarily motivated at least in part by animus towards the victim’s gender and therefore prohibited by the New York City Victims of Gender-Motivated Violence Protection Law.

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ECBAWM Partner Zoe Salzman Featured in Daily Beast Coverage of Trump Rape Defamation Case

As reported in The Daily Beast, the U.S. Department of Justice made clear on Monday that they intend to continue their defense of former president Donald Trump in the defamation lawsuit filed by E. Jean Carroll. On behalf of the behalf of the Rape, Abuse & Incest National Network (RAINN), the country’s largest anti-sexual violence organization, and other advocacy groups, ECBAWM previously filed an amicus brief in support of E. Jean Carroll and in opposition to the DOJ’s position that Trump is immune from suit for defamation because he was a government employee when he called Carroll a liar and said she was “not my type” after Caroll came forward to say that Trump had raped her years before he was a government employee.

The brief filed by the DOJ claims that Trump is entitled to both immunity and government-funded legal representation because he was a government employee at the time he made the statements – even though Carroll is suing Trump in his personal capacity and not in his official role as a government employee.

“It is disappointing to see this administration continue to defend Trump’s bankrupt legal position,” said ECBAWM partner Zoe Salzman, who, along with law clerk Julian S. Oppenheimer, represents the amici. “To agree with DOJ in this case is to send a chilling message to survivors of sexual assault and discourage them from holding their assailants accountable. The Second Circuit should affirm the District Court’s well-reasoned decision.”

Related Press
“Biden’s Department of Justice Is Still Taking Trump’s Side in E. Jean Carroll Case,” Jezebel

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ECBAWM Files Amicus Brief on Behalf of RAINN and Other Advocacy Groups in E. Jean Carroll Lawsuit Against Donald Trump

Today ECBAWM filed an amicus curiae brief on behalf of the Rape, Abuse & Incest National Network (RAINN), the country’s largest anti-sexual violence organization, and other advocacy groups in support of E. Jean Carroll in her ongoing defamation lawsuit against Donald Trump.

Carroll’s lawsuit alleges that after she came forward saying Trump had raped her, he defamed her, calling her a liar and saying she was “not my type.” Trump then deputized the Department of Justice to intervene in the case, and argue that Trump’s statements were Presidential and he was therefore immune from suit. The District Court rejected this argument. On appeal in the Second Circuit Court of Appeals, the DOJ continues to defend Trump, so one sexual assault survivor must now confront not only Trump, but also the might of the entire Department of Justice of the most powerful country in the world.

In support of Carroll, ECBAWM’s amicus brief argues that accepting the arguments advanced by Trump and the DOJ “would give license to all federal officials to slander and defame their victims with impunity. Such a decision would have a chilling effect on survivors of sexual violence throughout the country and would exacerbate the challenges survivors already face in holding their attackers accountable.”

“The standards set in this case will have long-term impacts on the rights and recourse available to survivors of sexual assault who are seeking justice,” said ECBAWM partner Zoe Salzman. “We are honored to join RAINN and the other organizations on this brief in a case with such far-reaching implications on this critically important issue.”

Joining RAINN on the brief are Legal Momentum, the Women’s Legal Defense and Education Fund; the National Alliance to End Sexual Violence; the National Center for Victims of Crime; the New York City Alliance Against Sexual Assault; Safe Horizon; and Time’s Up.

ECBAWM served as pro bono counsel, led by Salzman with law clerk Julian S. Oppenheimer.

Press
“Trump Rape Accuser Must Have Her Day in Court, Group Tells Judge,” Bloomberg.com

 

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Family of Police Shooting Victim Tamir Rice Requests DOJ Re-Open Investigation

The family of Tamir Rice, the 12-year-old boy shot and killed by Cleveland police officers, today requested that United States Attorney General Merrick Garland re-open the Department of Justice investigation into Tamir’s death.

On Saturday, November 22, 2014, Tamir was playing with a toy pellet gun by himself in a park near his house. When Cleveland police officers drove into the park at high speed, there was no one else around and Tamir wasn’t brandishing the toy. Despite there being no imminent danger, Officer Timothy Loehmann jumped out of his still-rolling squad car and fatally shot Tamir.

Security video footage of the shooting contradicts the statements given by the Cleveland police to justify the shooting. The video shows there was no time for Loehmann to give Tamir commands; Loehmann shot him immediately. After watching the video, the Cleveland Municipal Court found probable cause to charge the officers involved, and a grand jury was convened. But then the local prosecutor grossly mishandled the grand jury proceeding in order to exonerate the officers, including actually telling the grand jury they should not indict. In the face of this injustice, at the end of 2015, we requested a Department of Justice investigation into the shooting.

Articles in the New York Times and the Washington Post in October 2020 revealed that Trump political appointees at DOJ had stymied that investigation for years. They twice refused requests by apolitical career prosecutors to present this case to a grand jury. They allowed the clock to run on the statute of limitations for obstruction of justice charges. Finally, in the waning weeks of the Trump presidency, between Christmas and New Year’s, DOJ quietly announced it was closing the investigation entirely.

Attorney General Garland should re-open the investigation and convene a grand jury. There is no statute of limitations on prosecuting Officer Loehmann for killing Tamir in violation of his civil rights.

The essential facts of this case are not in dispute. Tragically, it is also indisputable that race played a defining role in Tamir’s death. As we note in the request to Attorney General Garland, “If these police officers had driven into a park in a wealthy, predominantly White suburb, if the boy they saw sitting there under the gazebo was White—is there any doubt in anyone’s mind that that boy would still be alive today?”

On behalf of Tamir’s family, we are requesting that this case be re-opened and presented to a grand jury without the agenda of exonerating the officers.

We invite you to read our request to Attorney General Garland in its entirety.

ECBAWM partners Jonathan S. Abady, Earl S. Ward, and Zoe Salzman represent the family of Tamir Rice.

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ECABWM Partner Zoe Salzman Co-Authors Washington Post Op-Ed Calling for Justice for Tamir Rice Under Biden Administration

Today the Washington Post published an opinion piece co-authored by ECBAWM partner Zoe Salzman and Billy Joe Mills, founding partner of FirmEquity LLC. Both firms represent the family of Tamir Rice, a 12-year-old boy who was brutally shot and killed by Cleveland police officers in 2014. In “Tamir Rice deserves justice. The Biden administration could finally deliver it,” Salzman and Mills explain why one of the top priorities for the Justice Department under the Biden administration should be the reopening of the case against the police officers who are responsible for Tamir’s death.

Noting that career DOJ attorneys had twice sought to convene a federal grand jury to bring charges against Cleveland police officer Timothy Loehmann, the authors write, “[B]oth times those requests were stymied by Trump administration political appointees at the Justice Department. They sat on the requests for years, though the department typically rubber-stamps such requests in weeks. … [T]hey opted to run out the clock on the relevant statutes of limitations, which allowed them to silently kill the investigation without formally ending it.” After a whistleblower complaint that included these and other stalling tactics by the Justice Department, the investigation was formally closed without further explanation.

“The Justice Department is supposed to uphold the rule of law without yielding to the bruising tide of politics,” write Salzman and Mills. “We call on the Biden administration’s incoming attorney general, Merrick Garland, who has professed his commitment to the rule of law, to reopen the investigation into the killing of Tamir Rice.”

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