Author: JGL Law

Congratulatrions to Burt, who has been honored with this designation 9 times. 

For the past 40 years, Mr. Kahn has advocated on behalf of personal injury and medical malpractice victims and their families, securing millions of dollars in settlements and awards for his clients. Known for his determination at asserting his clients’ rights while subverting the defendants’ arguments, Mr. Kahn has established himself as a formidable litigator who gets results. Through his success, he has earned the respect of both his clients and peers as evidenced by his numerous awards, honors and referrals.

For more on Burt click the image below. 

The Prince George’s County Economic Development Corporation hosted the 1st annual Women’s Excellence in Leadership Luncheon. The theme was, Yes! You can have it all!, and the event focused on recognizing and inspiring powerful women in Prince George’s county and nearby communities. The luncheon included a panel discussion and a keynote address by international speaker and success strategist, Dr. Gloria Mayfield Banks.

Joseph, Greenwald & Laake sponsored the luncheon along with other organizations, including Prince George’s Community College and the University of Maryland. The luncheon was held last Thursday at MGM National Harbor. Attendees consisted of prominent businesswomen and lawyers from both Maryland and DC, including our very own, Eleanor Hunt.

She spoke with the magazine regarding how IoT devices can impact the future of criminal law. Benevento offered her insight on how she uses IoT data both professionally and personally, saying, “Law enforcement, and civilians alike, can use this data for their benefit.”

Technology has impacted our world in many ways, including the way we practice law. Street cameras and home security cameras can catch criminal activity, and smartphone evidence can be used in court. Or maybe you’ve heard the story of Richard Debate, the man who was charged for his wife’s murder after information from her Fitbit contradicted his testimony.

To read the full article, click below 

 

He argued against the approval of a new cardiac program in Anne Arundel County. He stated it would cause “irreparable harm” to the recently approved Prince George’s Regional Medical Center. Judge Beverly Woodard agreed. Click below for more information. 

Timothy F. Maloney was quoted on behalf of Prince George’s Hospital Center against the development of a new cardiac surgery program at Anne Arundel Medical Center in both The Capital News Gazette and The Baltimore Sun.

Maloney and other lawyers representing Dimensions Healthcare System, the parent company of PGHC, have asked Prince George’s County Circuit Court Judge Beverly Woodard for a stay of proceedings, arguing that a new cardiac surgery program at AAMC would cause “irreparable harm” to the program already in place at PGHC.

“Don’t believe for a moment this won’t be hurting Prince George’s County,” said Dimensions counsel Timothy Maloney of a cardiac surgery program at AAMC. “I don’t think (PGHC) will be able to overcome this challenge.”

Should Woodard approve the stay, which would last around three months, there will be a judicial review of the state health care commission’s decision to approve the program.  Woodard said that she will make a decision by Friday.

Federal government employees are often in an excellent position to know about waste, fraud and abuse in government programs and to quietly inform others of what they know in order to punish wrongdoing, spur change and save the government vast sums of money. When they inform Congress, for example, about potentially illegal or wasteful practices in their agencies, federal employees are acting as whistleblowers – and they are protected under their own whistleblower statutes.

In a letter that they sent on May 4, 2017, to Thomas E. Price, secretary of Health and Human Services, two Republican legislators took aim at a memorandum that was issued to HHS employees the day before that they say may have a chilling effect on whistleblowers within that department. The memorandum says that all contacts with Congress by department employees must be cleared through the HHS Office of the Assistant Secretary for Legislation.

The authors of the scathing letter are Sen. Charles Grassley (R-IA), the chairman of the Senate Committee on the Judiciary, and Rep. Jason Chaffetz (R-UT), the chairman of the House Committee on Oversight and Government Reform. 

The letter notes, “Federal employees will most certainly read this instruction as a prohibition against direct communications with Congress without permission. As such, it is potentially illegal and unconstitutional, and will likely chill protected disclosures of waste, fraud, and abuse.”

The letter refers to a 1912 statute, which is still in effect, that specifically protects federal employees’ rights “to petition Congress or a Member of Congress, or to furnish information to either House of Congress, or to a committee thereof.” It also refers to the “Grassley anti-gag rider,” a provision of law enacted in the 1980s that also protects government employees’ rights to speak out.

The letter notes that the internal HHS memorandum “contains no exception whatsoever for lawful, protected communications with Congress. In its current form, employees are likely to interpret it as a prohibition, and will not necessarily understand their rights. The Grassley anti-gag rider and the associated [Whistleblower Protection Enhancement Act] provision are designed to ensure that employees understand that any such agency policy does not supersede the protections afforded them by statute and the Constitution. These provisions are significant because they ensure that attention can be brought to problems in the Executive Branch that need to be fixed. Protecting whistleblowers who courageously speak out is not a partisan issue — it is critical to the functioning of our government.”

The department has not yet responded to the May 4 letter. We will be watching for a response in the interest of ensuring that the rights of federal government whistleblowers remain fully protected.

The letter to Secretary Price can be found here, and a May 9, 2017, article on the subject from the Washington Post can be found here.

 

Debtor/Credit – Civil Procedure

Cassandra Murray v. Midland Funding, LLC, No. 2280, Sept. Term, 2015 (Md. Ct. Spec. App., April 26, 2017).

http://www.mdcourts.gov/opinions/cosa/2017/2280s15.pdf

In Murray v. Midland Funding, the Court of Special Appeals reviewed and summarized several notable rules for cases in which a judgment debtor files suit to void a judgment obtained by an unlicensed debt collector.  In doing so, the court observed that debt buyers often purchase consumer debts at deep discounts, obtain judgments against the consumers, and then attempt to collect on those judgments.  Such buyers fall within the definition of collection agencies and must be licensed.  Slip Op., at 2 (citing Md. Code Ann., Business Regulation Article § 7-301 and Md. State Collection Agency Licensing Bd. Advisory Notice 05–10, May 5, 2010).  In the seminal case of Finch v. LVNV Funding, 212 Md. App. 748 (2013), the Court of Special Appeals recognized that when such judgments are obtained by unlicensed debt buyers, the judgments are void.  Slip Op., at 2 (citing Finch, 212 Md. App., at 764).

            In Murray, Cassandra Murray filed suit against Midland Funding, an allegedly unlicensed debt buyer, to have a judgment against her declared void.  Id.  Murray also sought to recover money she paid to Midland, including fees and expenses, and other equitable relief.  Ultimately, all counts were dismissed, including the counts for declaratory judgment and injunctive relief, as barred by the three-year statute of limitations set forth in Md. Code Ann., Cts. and Jud. Proc. § 5-101.  The court held that the circuit court erroneously concluded that the non-monetary, equitable remedies were barred by the statute of limitations.  The court then reviewed several rules in so-called “Finch­-style cases”:

1. “All claims for monetary damages are actions at law and, thus, subject to a statute of limitations.”  Slip Op., at 4 (citing Jason v. National Loan Recoveries, 227 Md. App. 516, 529-530 (2016)).
2. “All claims for purely equitable remedies, including claims for injunctive relief, are potentially subject to laches.”  Slip Op., at 4.  The purpose of laches is to limit stale claims.  Although there is no firm time limit to determine when an equitable claim becomes stale, a judge may refer to the limitations period in the most analogous claim at law.  Laches will bar an action in circumstances where there is “both an inexcusable delay and prejudice to the party asserting the defense.”  In considering a laches defense, the judge considers a “plaintiff’s delay in asserting the claim and its causes and weighs that against the prejudice to the defendant caused by the late assertion of the equitable claim.”  Slip Op., at 4.
3. In an action seeking a declaratory judgment, which is a declaration of the rights of the parties, three sub-rules have emerged:
4. “There is not time bar at all” if a plaintiff seeks a simple declaration.  Such a declaration may be obtained “’at any time,’ meaning there is not, nor will there ever be a time bar to that cause of action.”  This is so because there is no time limit for asserting that a judgment is void.  Slip Op., at 6 (citing Jason, 227 Md. App., at 525.  Thus, “the rule is clear that a simple declaration that a judgment is void, is subject neither to a statute of limitations nor laches.”  Slip Op., at 7.

If the declaratory judgment action also seeks “remedies,” “remedial relief,” or “ancillary remedies,” such additional relief or remedies may be stale and subject to limitations or laches.  Slip Op., at 7.  The court should look to the type of relief requested to determine whether the additional relief requested beyond the declaration is subject to limitations or laches.  Slip Op., at 7-8.  Therefore:

2. If the additional relief sought is at law, such as in the nature of a money judgment, “the court will analyze whether that ancillary relief is barred by the statute of limitations as discussed in #1, above.”  Slip. Op., at 8.
3. If the additional relief sought “is of an equitable nature, the court will analyze whether that ancillary relief is barred by laches as discussed, in #2, above.”  Slip Op., at 8.

After summarizing the rules in the Finch-style cases, the Court of Special Appeals vacated the dismissal and remanded for further proceedings.  If Murray sought a declaration that Midland’s judgment was void, she was entitled to bring that proceeding and obtain such a declaration “at any time,” regardless of limitations or laches, including in a collateral proceeding.  If Murray sought additional relief, however, the trial court was to consider whether that relief was barred by limitations or laches.

Contract – Expense-Shifting Clause

Under Armour, Inc. v. Ziger/Snead, LLP, No. 802 Sept. Term, 2016 (Md. Ct. Spec. App. April 27, 2017).

http://www.mdcourts.gov/opinions/cosa/2017/0802s16.pdf

In Under Armour, Inc. v. Ziger/Snead, LLP, the Court of Special Appeals considered whether a contractual expense-shifting clause providing for “losses incurred” by the prevailing party in a lawsuit includes the value of the time expended by the principal and several employees of a company.  Ziger/Snead LLP is an architectural firm that provided design and professional management services to Under Armour for its Visitor Center in Baltimore City.  Ziger/Snead sued Under Armour for $56,249 it claimed was due under the governing contract, plus unpaid fees and interest.  Under Armour counterclaimed for losses and damages allegedly caused by Ziger/Snead.  Slip Op., at 1.

            A jury ultimately found in favor of Ziger/Snead and against Under Armour and awarded $58,940 in damages.  Slip Op., at 1.  After entry of the jury verdict, Ziger/Snead filed a motion to obtain its fees, costs, expenses, and losses under Section 11.10.2 governing contract.  That section provided as follows:

“If Architect employs counsel or an agency to enforce this Agreement,  Owner [appellant] agrees to pay the attorneys’ fees, costs, expenses, and  losses incurred by Architect prior to and through any trial, hearing, and/or  subsequent proceeding, relating to such enforcement.”

After some adjustments, the trial court granted the motion and awarded Ziger/Snead “$182,735 in attorneys’ fees, $155 in costs, $42,830 in expenses (consisting mostly of mediation, deposition, and copying costs), and $62,190 in losses.”  “Those losses consisted entirely of the value of the time expended by Mr. Ziger, a principal in the firm, and several employees of the firm, ‘on matters related to the enforcement of the contract, including investigation of the matter and performing litigation-related tasks at the request of Ziger’s attorneys.’” The court then entered final judgment in favor of Ziger/Snead in the aggregate amount of $287,920.  Under Armour paid the judgment but appealed the $62,190 award for “losses.”  Slip Op., at 2.

            The evidence in support of the “losses” consisted of time-tracking records displaying the amount of time Mr. Ziger and other employees spent on the case multiplied by the hourly rate the firm charged to clients for work it performs.  Under Armour did not contest the hours or the hourly rate.  Instead, it argued that no such “losses” should have been awarded under the governing contract at all.  It argued that Section 11.10.2 of the contract did not specifically permit shifting of time spent by Ziger/Snead to the non-prevailing party and that such hourly rates were inappropriate because there was no additional expense to Ziger/Snead because its employees would have been paid in any event.  Slip Op., at 2-3.

            The Court of Special Appeals initially observed that Section 11.10.2 was not part of the general contract damages for a breach, was not submitted to the jury as an element of damages, and by its express terms becomes effective only if Ziger/Snead employed counsel or an agency to collect, and the parties agreed it was a prevailing party provision.  Slip Op., at 5.  Thus, the issue was “whether the right to reimbursement for ‘losses,’ as contemplated by §11.10.2, covers the value of diverted employee time.”  Slip Op., at 5-6.

            Although the “American Rule” provides that litigants are generally responsible for their own legal fees and costs, where the agreement clearly provides for them, they are available.  Notably, Section 11.10.2 clearly provided for “attorneys’ fees, costs, [and] expenses” and also for reimbursement for “losses.”  Slip Op., at 6.  Recognizing that a court must give effect to each clause and phrase of an agreement, the court determined that the phrase “losses” “cannot be regarded as a superfluous term; it must mean something – something other than attorneys’ fees, costs, and expenses.”  Slip Op., at 7.  Although Under Armour attacked the phrase “losses” as being vague, the court stated that its value was in its vagueness: “that is its value – to avoid the need for the contract to specify each and every conceivable kind of ‘loss’ not covered by the other terms that may result from a default by appellant.”  Id.

            The court then considered whether lost employee time constituted “losses” within the meaning of the contract.  Slip Op., at 8.  Relying on a definition of “loss” in Black’s Law Dictionary, Under Armour urged “that the word is synonymous with ‘damage,’ ‘injury,’ ‘harm,’ or ‘diminution in value,’ which, in its view, is limited to ‘out-of-pocket costs and expenses’ and does not include ‘tasks that all litigants typically undertake without compensation’… .”  The court disagreed and held that diverted employee time is a compensable loss.  In fact, the court noted that lost employee time may sometimes even be available when the contract is silent on the issue and sought as part of general compensatory damages.  Slip Op., at 8.  Among other authorities, the court highlighted the Ninth Circuit case of Convoy Co. v. Sperry Rand Corp., 672 F.2d 781 (9th Cir.1982), which held “that the issue was not whether those employees would have been paid anyway but whether the breach deprived the plaintiff of the services it paid for.”  Slip Op., at 9.

            The court concluded that Ziger/Snead having to divert many hours from income-producing work to assist in bringing the lawsuit and defending against the counterclaim constituted an injury, harm, detriment, disadvantage, or deprivation.  Therefore, the lost employee time was compensable as a “loss” for purposes of the expense-shifting provision in the governing contract.

This week, Joseph Greenwald & Laake would like to recognize David Bulitt for his selection as a 2017 Super Lawyer by Thomson Reuters and Super Lawyer Magazine.  David has been named a Super Lawyer 11 consecutive years. Only 5% of attorneys nationwide receive this honor each year.

David Bulitt focuses his practice on complex family law cases, helping clients in Maryland and Washington, DC, through difficult times, including divorces, custody battles and other contentious domestic conflicts.  Clients regard David as both a skilled negotiator at the mediation table and as a staunch advocate in the courtroom.  David protects his clients’ rights through divorce while remaining passionate about the most important asset of all- the children. He is also the author of two popular books of fiction.

Click below for more on David.

Attorney Debora Fajer-Smith is celebrating 32 years of representing public safety and workers injured in the line of duty. Fajer-Smith is the chair of the Workers’ Compensation at Joseph, Greenwald & Laake. She has dedicated her career to representing those who have suffered a workplace accident or occupational injury, and on May 24, 2017 her clients gathered and had the opportunity to acknowledge all that she has achieved for her them, past and present.

Fajer-Smith is a member of the American Bar Association College of Workers’ Compensation Lawyers, making her the only female plaintiff attorney in Maryland to receive that level of national recognition. She has been named one of the “Top 100 Women of the Year in Maryland”  by the Daily Record. She has served on the Senate-House Oversight Committee on Workers’ Compensation and Insurance, and she has traveled internationally as a citizen-ambassador.

Despite her impressive resume, it is often Fajer-Smith’s commitment to her community that stands out the most. Recently, Fajer-Smith was awarded a challenge coin by both the Prince George’s County police and fire department. These coins are emblematic of her dedication to representing both departments in whatever legal issues they may face.

In her spare time, Fajer-Smith can be found volunteering in either Maryland or Brazil, where she was born. She can also be found flying, as she recently obtained her private pilot license and has piloted two Piper Warriors.

Congratulations on 32 years of an incredible legacy Debora, we’re lucky to have you and can’t wait to see what the future holds!

McCash and Miller specifically sponsored a foursome of student golfers from the Southern Maryland Junior Golf Association (SMJGA) in Upper Marlboro.

SMJGA is a non-profit association that is dedicated to providing educational, developmental, and life skills to Southern Maryland youth. The association exposes students to golf and helps them improve their skills. By doing so, SMJGA provides students the opportunity to learn valuable lessons such as respect, discipline, and sportsmanship.

More and more frequently, employers are evading the legal requirement to pay overtime to their employees by choosing to pay them on a salaried basis instead of an hourly wage, and then telling the employees that they’re not entitled to overtime because they have an “exempt” job title. But often this practice amounts to nothing more than illegal wage theft from workers who should be classified as hourly and are being denied overtime pay that they deserve.

In June 2016, along with Andrew Santillo of Winebrake & Santillo of Dresher, Pa., I filed a civil case in the U.S. District Court for the District of Maryland charging Illinois-based Heartland Dental, LLC, with violating the law by doing just that. Our complaint alleged that Heartland Dental committed wage theft by denying overtime pay, which is normally “time-and-a-half” of their regular pay, to office managers whom the company misclassified as salaried. Heartland Dental hired these office managers to work in dental offices throughout the country.

On May 23, 2017, we obtained a judgment, totaling over $25,000.00, entered on the basis of settlements with Heartland Dental on behalf of our three clients– all of them residents of Prince George’s County, Md., and all of them “salaried” office managers who were improperly denied overtime pay by Heartland Dental.

Heartland Dental is a company that provides office managers, marketing personnel, IT workers, and other support staff to dentists across the country. It works with more than 750 dental offices and pays the workers directly.

We alleged in the lawsuit that Heartland Dental violated federal overtime law by classifying its so-called “S” or salaried office managers in dental offices as exempt from receiving overtime premium pay (or “time-and-a-half” pay) when they worked more than 40 hours in a week.

We pointed out in the complaint that the duties and level of supervision of the “S” office managers were identical to those of other office managers who were being paid hourly and were receiving overtime pay. Accordingly, we asserted Heartland violated the federal Fair Labor Standards Act. We sought damages, penalties and litigation costs from Heartland Dental.

The lawsuit was filed as a collective action on behalf of all people who worked as salaried office managers for Heartland Dental any time after June 16, 2013. We are confident that there are other present and former employees of Heartland Dental who are or have been in this situation, and we hope that others will come forward.

Mr. Santillo and I are very pleased that we obtained this judgment for our c clients and hope that others will also be brave enough to come forward to try to collect the monies they are owed.

His opinion piece “Should you take Gretchen Carlson’s advice on reporting sexual harassment?” examines Carlson’s strategy of not reporting harassment violations to HR. Click below for the full article.