Thursday, February 12, 2015

Judge Sargent approves $300 hourly rate in Abingdon Title VII case

In Atkins v. VDOT, Magistrate Judge Sargent awarded fees for plaintiff's counsel in a Title VII case at the hourly rate of $300. As part of her decision, she specifically rejected VDOT's argument that the hourly rate for cases in the Abingdon jury division should be lower than the rate for cases in the Roanoke jury division. Judge Sargent appears to have read every one of the time entries and disallowed the ones that caught her eye as unnecessary. Back in the day, Judge Sargent had to submit her time in some federal court-appointed cases and I expect that she expects counsel to give their time entries something like the same level of attention that she did.

When should a federal court stay a civil case pending the outcome of a criminal case?

In Skinner v. Armet Armored Vehicles, Judge Kiser of the W.D. Va. denied the defendants' motion for a stay of their False Claims Act case pending the outcome of the criminal case against them. Judge Kiser's analysis makes it sound like a stay should rarely be granted. In some other courts, there is almost a presumption in favor of such a stay in some circumstances, and Judge Jones granted a stay in the one case where I raised the issue, even though the result was a delay of some years in the civil cases.

At the time, I wrote something like this:

"The determination by a district judge in granting or denying a motion to stay proceedings calls for an exercise of judgment." United States v. Georgia Pac. Corp., 562 F.2d 294, 296 (4th Cir. 1977). Many courts have recognized that a stay of a civil case is most appropriate when the civil defendant has been indicted over the same subject matter. See In re Julmice, 458 B.R. 657, 662 (Bankr. E.D.N.Y. 2011) ("When an indicted criminal defendant is also a defendant in a related civil action, courts in this Circuit generally grant a stay of the civil matter."); Avalonbay Communities, Inc., v. San Jose Water Conservation Corp., CIV A 07-306, 2007 WL 2481291 (E.D. Va. Aug . 27, 2007), aff'd, 325 Fed. App'x 217 (4th Cir. 2009) ("a stay is most appropriate in situations where a party is under indictment for a serious offense") (citing SEC v. Dresser Indus. Inc., 628 F.2d 1368, 1376 (D.C. Cir. 1980)); Trustees of Plumbers & Pipefitters Nat. Pension Fund v. Transworld Mech., Inc., 886 F. Supp. 1134, 1139 (S.D.N.Y. 1995) ("A stay of a civil case is most appropriate where a party to the civil case has already been indicted for the same conduct"); Volmar Distributors, Inc. v. New York Post Co., Inc., 152 F.R.D. 36, 39 (S.D.N.Y. 1993) (“The strongest case for granting a stay is where a party under criminal indictment is required to defend a civil proceeding involving the same matter.”); In re Par Pharm., Inc. Sec. Litig., 133 F.R.D. 12, 13 (S.D.N.Y. 1990) (“The weight of authority in this Circuit indicates that courts will stay a civil proceeding when the criminal investigation has ripened into an indictment”). When the individuals who own and operate business entities are indicted, courts granting a stay for the individuals will often do the same for any unindicted co-defendant business  entities. See, e.g., Am. Express Bus. Fin. Corp. v. RW Prof’l Leasing Services Corp., 225 F. Supp. 2d 263, 265-66 (E.D.N.Y. 2002).  

Indeed, the fact that the indictment has been returned is critical because it dictates both the degree of risk of self-incrimination and the length of potential delay to the civil case. See U.S. S.E.C. v. Trujillo, 09-CV-00403-MSK-KMT, 2010 WL 2232388 (D. Colo. June 1, 2010) (holding that after an indictment is returned, “The potential for self-incrimination is greatest during this stage, and the potential harm to civil litigants arising from delaying them is reduced due to the promise of a fairly quick resolution of the criminal case under the Speedy Trial Act.”); Parker v. Dawson, 06-CV-6191 JFB WDW, 2007 WL 2462677 (E.D.N.Y. Aug. 27, 2007) (“although a stay pending resolution of the criminal action may result in an immediate delay in the progress of the civil actions, it is likely that the resolution of the criminal action will, ultimately, further this Court’s interest in the efficient disposition of the civil actions.”); Crawford & Sons, Ltd. v. Besser, 298 F. Supp. 2d 317, 319 (E.D.N.Y. 2004) (“A stay would promote efficiency and avoid duplication as this Court and the parties would have the benefit of the transcripts and rulings in the criminal action. In addition, the public’s interest is also served by preserving the integrity of the criminal case.”); Sterling Nat. Bank v. A-1 Hotels Int’l, Inc., 175 F. Supp. 2d 573, 577 (S.D.N.Y. 2001) (“When a defendant has been indicted, his situation is particularly dangerous, and takes a certain priority, for the risk to his liberty, the importance of safeguarding his constitutional rights, and even the strain on his resources and attention that makes defending satellite civil litigation particularly difficult, all weigh in favor of his interest. Moreover, if the potential prejudice to the defendant is particularly high post-indictment, the prejudice to the plaintiff of staying proceedings is somewhat reduced, since the criminal litigation has reached a crisis that will lead to a reasonably speedy resolution.”)."

Monday, February 09, 2015

Best meal in 2014

If it is not too late for a retrospective, it seems like the best meal of the whole year that was came from Hamiltons and was served by the lady behind me.

Sunday, February 08, 2015

Who would have thought the states would not want to run their own ACA exchanges?

I read over the amicus brief filed by the Virginia Attorney General and others in the case of King v. Burwell now pending before the United States Supreme Court. This is the case about whether all of the "exchanges" are created equal.

I think the words in the Affordable Care Act that support the Petitioner's arguments are in there because of haste and hubris. The proponents of the ACA were sloppy because they did not have much time before they would lose their majority in Congress, and so they made mistakes. They also were naive about the willingness of the states, even the blue states, to set up their own exchanges, so there is language in there that is written in the vocabulary of "cooperative federalism" but with no intention that the "stick" would ever be applied. By cooperative federalism I mean the power of the federal government to get the states to do its  bidding by giving money with conditions - like the federal highway money that the states would have lost by failure to raise the drinking age.

Much the same thing was done with the Medicaid expansion, where the "stick" of losing all of the state's federal funds was viewed by the Chief Justice as so terrible that the Supreme Court struck it down as unconstitutional. The drafters used the vocabulary of "cooperative federalism" with no idea that the states would do anything but cooperate. The choice of words was deliberate, but based on the mistaken assumption that the inclusion of language about the effect of non-compliance was a matter of form and not substance.