Thursday, February 11, 2016


Original Story:

WASHINGTON — In a victory for class-action plaintiffs, the Supreme Court on Wednesday ruled by a 6-to-3 vote that courts may not dismiss lawsuits simply because a defendant has offered to give the lead plaintiff everything he sought. A contrary decision would have allowed companies accused of minor but mass wrongdoing to pick off plaintiffs one by one, frustrating their ability to band together to sue over their claims. A Charleston class action lawyer is reviewing the details of this case.

“Once unaccepted, the offer is off the table,” Justice Ruth Bader Ginsburg said in summarizing her majority opinion from the bench.

In dissent, Chief Justice John G. Roberts Jr. said that approach gave plaintiffs too much power. “If the defendant is willing to give the plaintiff everything he asks for, there is no case or controversy to adjudicate, and the lawsuit is moot,” he wrote.

The case, Campbell-Ewald Co. v. Gomez, No. 14-857, arose from a text message on behalf of the Navy sent to Jose Gomez in 2006. “Get a career,” the text said. “An education. And a chance to serve a greater cause.” Mr. Gomez was 40 at the time, well above the age range for Navy recruits. A Minneapolis class action attorney is following this story closely.

Mr. Gomez sued under the Telephone Consumer Protection Act, which allows people who receive unwanted text messages to recover up to $1,500, and he sought to represent a class of people who had received the message.

A Navy contractor, the Campbell Ewald Company, offered to settle the case for $1,503 for each unsolicited text, court costs and a promise to stop sending such messages. Mr. Gomez did not respond to the offer.

The company argued that the case should have been dismissed as moot because it had capitulated and offered Mr. Gomez everything he had asked for.

Justice Ginsburg said the company’s true aim was “to avoid a potential adverse decision, one that could expose it to damages a thousandfold larger than the bid Gomez declined to accept.”

“While a class lacks independent status until certified,” she wrote, “a would-be class representative with a live claim of her own must be accorded a fair opportunity to show that certification is warranted.” A South Jersey class action attorney provides professional representation to clients involved in class action lawsuits.

Justices Anthony M. Kennedy, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan joined Justice Ginsburg’s opinion. Justice Clarence Thomas voted with the majority but did not adopt its rationale.

Chief Justice Roberts, joined by Justices Antonin Scalia and Samuel A. Alito Jr., said the majority had run afoul of the constitutional requirement that federal courts may hear only live cases and controversies. “The problem for Gomez is that the federal courts exist to resolve real disputes,” the chief justice wrote, “not to rule on a plaintiff’s entitlement to relief already there for the taking.”

The majority left the door open to procedures in which defendants did more than make an offer. “We need not, and do not, now decide whether the result would be different if a defendant deposits the full amount of the plaintiff ’s individual claim in an account payable to the plaintiff, and the court then enters judgment for the plaintiff in that amount,” Justice Ginsburg wrote.

Chief Justice Roberts welcomed that aspect of the majority opinion, calling it “good news” on the assumption that “there are other plaintiffs out there who, like Gomez, won’t take ‘yes’ for an answer.” A Cleveland class action lawyer is following this story closely.

In a separate dissent, Justice Alito said he had not joined the majority only because there was no question that the company could and would pay. He urged courts to be wary of dismissing cases where there was a risk that “the defendant’s failure to follow through on its promise to pay would leave the plaintiff forever empty-handed.”

He suggested two acceptable procedures.

“The most straightforward way is simply to pay over the money,” Justice Alito wrote. “Alternatively, a defendant might deposit the money with the district court (or another trusted intermediary) on the condition that the money be released to the plaintiff when the court dismisses the case as moot.”

The decision was the first in the three class-action cases the court has heard this term. A second, Tyson Foods v. Bouaphakeo, No. 14-1146, concerns an attempt by thousands of workers at an Iowa pork processing plant to band together in a single lawsuit seeking overtime pay. The third, Spokeo v. Robins, No. 13-1339, asks whether Congress may authorize lawsuits by plaintiffs who cannot prove they suffered a concrete injury.


Original Story:

A Grosse Pointe lawyer is going to prison for 18 months for telling a client in an immigration case to lie in court about a criminal conviction so that he could stay in the country. A Detroit immigration attorney provides domestic and foreign-based clients with exceptional representation, multi-disciplinary support, and creative problem solving to address a wide range of immigration issues.

According to court documents, the hushed conviction was for criminal sexual misconduct.

"You cannot admit to it or else you're gone, you're done," the lawyer told his client in a recorded jailhouse conversation that prosecutors used against him.

The attorney in the case is David Wenger, 70, and a decorated Army veteran who pleaded for leniency, saying he pleaded guilty to the crime, spared the government a costly trial, and had nothing to gain financially by trying to help his client. A Grand Rapids professional liability lawyer is following this story closely.

Neither Wenger or his lawyer could be reached for comment. But in court documents, his lawyer portrayed him as a good husband, father and attorney of 35-plus years who helped numerous clients.

"He is profoundly remorseful for what he did and he accepts responsibility for his actions," Wenger's lawyer, David Tholen, has argued in court documents, noting his client had nothing to gain by hiding the conviction.  "It was the client and the client’s family that stood to benefit from the offense. (The) defendant did not receive any additional funds or benefit from his (conduct)."

Tholen was hoping to keep his client out of prison, requesting home detention or confinement in a residential center.

But U.S. District Judge Robert Cleland concluded that punishment didn't fit the crime.  Rather, before imposing the sentence Friday, Cleland lambasted Wenger,  calling his actions among “the most serious crimes a lawyer can commit." He also called his conduct  “outrageous behavior" that demanded a prison sentence  to send a message that the courts do not tolerate lawyers who commit perjury. A Cincinnati professional liability attorney is reviewing the details of this case.

According to prosecutors, Wenger not only instructed his client to conceal his conviction from the immigration court, but he himself did it, too.

“Our immigration court system relies on lawyers to present truthful information so that judges can make informed decisions about the cases before them,” U.S. Attorney Barbara McQuade said in announcing the sentence.  “This lawyer committed a very significant violation of the law when he presented false testimony to the Immigration Court to conceal his client’s prior conviction.”

According to court records, Wenger's case stems from a 2013 immigration case involving a client who was about to be deported.

Wenger opposed the government's efforts and filed an application with the Immigration Court, seeking permission for his client to stay. But prosecutors allege that  Wenger omitted from the application a key piece of information that would have made it very unlikely for his client to stay in the U.S: a conviction for criminal sexual conduct. A Roseland immigration lawyer is experienced in the effective resolution of immigration lawsuits as related to legal and illegal immigrants.

According to prosecutors, Wenger knew about this conviction because he had previously represented the same client in a Macomb County drug case, and was privy to his criminal history. The client did want to be truthful and expressed an interest in disclosing the conviction, prosecutors said, but his lawyer wouldn't hear of it and told his client to "play dumb" and "be selective" with his honesty.

To bolster its case, prosecutors cited an email that Wenger wrote regarding whether the conviction should be disclosed.

“NO! NO! NO! The government doesn’t know anything about what happened in (the defendant's) 20’s. It’s simple and I have said it at least 10 times. If they know about it he will be deported plain and simple. The answer is NO.” Wenger's email read.

After filing the application, an immigration hearing followed.

At the hearing, Wenger claimed that he had disclosed his client’s entire criminal record when he hadn't, prosecutors alleged.  Wenger also had coached his client and his client's family to hide the conviction during their testimony -- though Wenger later argued the family knew what it was doing.

"Defendant’s client, and the client’s family, were fully active participants ... (but) of this group, only (Wenger) was prosecuted for the offense," the defense argued in court documents.

The scheme fell apart during the government's cross-examination of the defendant, who confessed to his full criminal history and said that Wenger had instructed him to lie.

Prosecutors also cited Wenger's past disciplinary troubles, noting he had been admonished at least 10 times by the  Michigan Attorney Grievance Commission, and reprimanded twice by the Michigan Attorney Discipline Board, including once for failing to deposit legal fees into a client trust account.

"Mr. Wenger is not deserving of the leniency he requests," prosecutors argued in court records. "To the contrary, he has earned a substantial prison sentence."