CONCUSSION LITIGATION LEADING INSURERS TO DISCONTINUE COVERAGE FOR HEAD INJURIES IN FOOTBALL

Photo Credit: Woodruff Health Sciences Center (2017). Emory physicians care for Atlanta Falcons on their journey to the Super Bowl. Available at: http://news.emory.edu/stories/2017/01/emory_docs_head_to_superbowl/ [Accessed 23 Feb. 2019].

By: Catherine Collins

Member, American Journal of Trial Advocacy

Introduction

Recently, ESPN released an article addressing an emerging issue which could potentially endanger the sport of football.[i] The article and coverage on ESPN’s Outside the Lines explains the dissolving insurance market in the contact sports realm regarding coverage for concussions and other head related injuries.[ii] The NFL no longer has general liability insurance covering traumatic head injuries, and only one insurance provider remains in the market for such coverage.[iii]

Proliferating concussion litigation has flooded the courts with class actions of former athletes and their spouses, alleging that the athlete died as a result of those injuries or was seriously impaired by the neglect of proper concussion protocol enacted by sports entities.[iv] One specific progressive brain disease, which has most recently been linked to concussions and head trauma, is chronic traumatic encephalopathy (“CTE”).[v] Though CTE was first described in 1928, it was not until 2005 when a pathologist published evidence of CTE after researching the brain of former Pittsburgh Steeler, Mike Webster.[vi] This brain disease is caused by “repetitive hits to the head sustained over a period of years” and is most often found in military veterans and contact sport athletes.[vii]

As a result of progressive CTE research and litigation surrounding head related injuries, insurance companies have analyzed the risk and exposure of covering concussion and other related head injury claims.[viii] Most insurance companies have discontinued their coverage of those risks.[ix] This discontinuation of coverage has affected businesses, non-profits, and individual’s access to proper insurance covering the defense and settlement of these types of claims in the football realm.[x] Though highly profitable football leagues like the NFL could potentially be able to sustain themselves without this insurance coverage, the lack of insurance has targeted programs not as highly profitable because of their inability to take on the risk associated with concussion liability.[xi] The existence of football may be threatened if the affected parties no longer have the access to necessary insurance.

Concussion-Related Settlements

The NFL has remained in the headlines, as ongoing concussion litigation settlements have been constantly an issue for the League. In In re National Football League Players Concussion Injury Litigation, the plaintiffs alleged that “the NFL had a duty to provide players with rules and information to protect them from the health risks—both short and long-term.”[xii] This class action asserted by former professional football players and widows of former players alleged specific short-term and long-term concussion related injuries, as well the players’ suffering from CTE.[xiii] The case settled, providing $1 billion to the named class of former players and families.[xiv] The court stated that the settlement “is a testament to the players, researchers, and advocates who have worked to expose the true human costs of a sport so many love.”[xv] Indeed, the court acknowledges not only that so many players and fans have a deep passion for football, but also that the emerging underlying issue of CTE and head-related injuries is a high cost related to the sport still being medically and judicially understood.[xvi] 

Additionally, in 2016, a class action was brought against the National Collegiate Athletic Association (NCAA) by athletes alleging concussion and concussion related damages due to the manner in which the NCAA handled these injuries.[xvii] The plaintiffs argued that “the NCAA failed to promulgate and implement the rules and regulations necessary to safeguard student-athletes from sustaining such injuries and to diagnose them properly.”[xviii] Here, the settlement plan is projected that NCAA would pay a total of $75 million, but this settlement does not go to the individual class members.[xix] The settlement proposes NCAA pays $70 million for a Medical Monitoring Program, which “entitles all class members to be screened for symptoms of neurodegenerative diseases multiple times during a fifty-year period . . . in order to assess whether the concussive or subconcussive impacts the individual experienced as a student-athlete may have resulted in a neurologic condition.”[xx] An additional $5 million is expected to be paid as additional funds for concussion research during the first ten years of the Medical Monitoring Period.[xxi]

The Emerging Issue

These recent settlements reveal the development of research and evidence of CTE linked to concussion and concussion-related injuries incurred during a football or contact sport career. CTE is tested by performing a brain tissue analysis, which cannot be performed until after the death of the affected person, thus, it is legally difficult to prove this brain condition while the litigant is still living.[xxii] However, it has been found that the brain deterioration symptoms found to be linked to CTE can be evidenced over a period of years or even decades after the repetitive brain trauma.[xxiii]

As a result of the litigation and developing medical findings, insurance companies have pulled their coverage from amateur sports teams to the NFL.[xxiv] There is only one known insurance company providing coverage.[xxv] There have already been repercussions exhibiting the threat to the sport: Pop Warner, a youth football league, has received a wave of lawsuits over the past few years.[xxvi] Debra Pyka filed suit on behalf of her 25-year-old son, who committed suicide and was posthumously diagnosed with CTE.[xxvii] Pyka’s son had played Pop Warner football for four years when he was younger, and she alleged that CTE played a “substantial factor” in his suicide.[xxviii]   The case settled for less than $2 million.[xxix] Following the lawsuit, AIG discontinued their insurance coverage of Pop Warner regarding neurological injuries.[xxx] Pop Warner’s executive director stated that the company has two options, “[t]he two most obvious are either we go out of business or we declare bankruptcy;” however, currently Pop Warner has Scottsdale Insurance covering them without the exclusion of neurological injuries, but the policy must be renewed each year.[xxxi] The organization continues to be targeted by a CTE-related class actions.[xxxii] Pop Warner and other youth sports league organizations fear that the access to insurance will vanish completely if the litigation continues.[xxxiii]

Not only have youth football leagues been affected by the evaporating insurance market, but junior colleges in Arizona have been forced to end their football programs.[xxxiv] One of the largest community college districts in the country, the Maricopa County Colleges which has 10 schools altogether, eliminated their four football programs.[xxxv] The school district was spending over $1 million on accident and catastrophic insurance premiums, and around one-third of that cost was going toward the district’s four football teams.[xxxvi] After thorough cost analysis, it was recommended to eliminate the sport.[xxxvii] The threat of litigation and the high cost or unavailability of insurance has and will force football programs, especially those not highly profitable, to shut down.


Conclusion

Youth leagues, colleges, and professional leagues all face the threat of litigation regarding head injuries, especially as medicine has refined its research of CTE. Jon Butler, Pop Warner’s executive director stated, “people say football will never go away, but if we can’t get insurance, it will.”[xxxviii] There is no sign that insurance companies will decide to reinstate their coverage for neurological injuries for football and other contact sports. Unless the manner in which the sport is played changes to avoid head collisions altogether, insurance companies will not reenter the market covering head injuries in the sport. Analysts have stated that this issue could affect other contact sports like soccer and hockey, because these sports involve some level of risk regarding head injuries.[xxxix] If insurance companies do not take on the risk, then the risk could potentially be shifted to the players. If there is a way for players to acknowledge and take on their own risk, waiving liability of the league, then the sport could potentially remain afloat. It will be interesting to see how the lack of an insurance market will affect football organizations and how or if the sport will be played in the future.


[i] For the NFL and all of football, a new threat: an evaporating insurance market, ESPN (last visited Feb. 28, 2018), http://www.espn.com/espn/story/_/id/25776964/insurance-market-football-evaporating-causing-major-threat-nfl-pop-warner-colleges-espn.

[ii] Id.

[iii] Id.; An Insurance Crisis Is Quietly Growing For Football In America, National Public Radio (last visited Feb. 25, 2018), https://www.npr.org/2019/01/21/687255649/an-insurance-crisis-is-quietly-growing-for-football-in-america.

[iv] Id.

[v] What Is CTE? Concussion Legacy Foundation (last visited Feb. 27, 2018), https://concussionfoundation.org/CTE-resources/what-is-CTE.

[vi] Id.

[vii] Id.

[viii] ESPN, supra note 1.

[ix] Id.

[x] Concussions and Coverage: Insurance Claims Alleging Long-Term Brain Injuries, Including CTE, American Bar Association (last visited Feb. 28, 2018), https://www.americanbar.org/groups/entertainment_sports/publications/entertainment-sports-lawyer/2017/fall2017/concussions/.

[xi] Id.; ESPN, supra note 1.

[xii] In re Natl. Football League Players Concussion Injury Litig., 821 F.3d 410, 421 (3d Cir. 2016), as amended (May 2, 2016).

[xiii] Id.

[xiv] Id. at 447.

[xv] Id. at 447-48.

[xvi] Id.

[xvii] In re Natl. Collegiate Athletic Assn. Student-Athlete Concussion Injury Litig., 314 F.R.D. 580, 599 (N.D. Ill. 2016).

[xviii] Id.

[xix] Id. at 585.

[xx] Id. at 603-04.

[xxi] Id. at 586.

[xxii] Concussion Legacy Foundation supra note 5.

[xxiii] Id.; In re Natl. Collegiate Athletic Assn. 314 F.R.D. at 591.

[xxiv] Josh Kosman, AIG ends insurance policy against head injuries with NFL, New York Post, https://nypost.com/2016/06/12/aig-ends-insurancy-policy-against-head-injuries-with-nfl/; ESPN, supra note 1; Michal Addady, AIG Won’t Pay For NFL Players’ Head Injuries Anymore, Fortune, http://fortune.com/2016/06/13/aig-nfl/.

[xxv] ESPN, supra note 1.

[xxvi] Id.; Archie v. Pop Warner Little Scholars, Inc., CV16-6603 PSG PLAX, 2017 WL 3084160, (C.D. Cal. May 12, 2017).

[xxvii] Ken Bolson, Pop Warner Settles Lawsuit Over Player Who Had C.T.E., New York Times, https://www.nytimes.com/2016/03/10/sports/football/pop-warner-settles-lawsuit-over-player-who-had-cte.html; Michael Martinez, Pop Warner settles concussion suit filed by former player who committed suicide, CNN, https://www.cnn.com/2016/03/09/us/pop-warner-concussion-lawsuit-settlement-player-suicide/index.html.

[xxviii] Id.

[xxix] Id.

[xxx] ESPN, supra note 1; For the NFL and all of football, a new threat: an evaporating insurance market, ABC News, https://abcnews.go.com/Sports/nfl-football-threat-evaporating-insurance-market/story?id=60446104.

[xxxi] New York Post, supra note 23; ESPN, supra note 1; National Public Radio, supra note 3.

[xxxii] Archie, 2017 WL 3084160 (C.D. Cal. May 12, 2017).

[xxxiii] ABC News, supra note 26; ESPN, supra note 1.

[xxxiv] Id.; ESPN, supra note 1; Anne Ryman, ‘The end of an era and a sad day’ Arizona Western College is latest community college to drop JUCO football, Arizona Central, https://www.azcentral.com/story/sports/2018/12/05/arizona-western-college-eliminate-juco-football-after-2018-season/2219247002/; National Public Radio, supra note 3.

[xxxv] Id.

[xxxvi] Id.

[xxxvii] Id.

[xxxviii] Lyle Adriano, Will insurance destroy America’s favorite sport?, Insurance Business America, https://www.insurancebusinessmag.com/us/news/breaking-news/will-insurance-destroy-americas-favorite-sport-122643.aspx; ABC News, supra note 29; ESPN, supra note 1.

[xxxix] ABC News, supra note 26; ESPN, supra note 1.

WHO’S PAYING? A REVIEW OF RULE 41(D)’S AUTHORIZATION OF ATTORNEY FEE AWARDS

Image: https://silblawfirm.com/wp-content/uploads/2017/07/Recovering-Attorneys-Fees820x400.jpg

By: Will Johnson

Associate Editor, American Journal of Trial Advocacy

Federal Rule of Civil Procedure 41(d) governs situations in which the plaintiff voluntarily dismisses an action and subsequently refiles the same or similar case in a different jurisdiction.[1] In such situations, the rule permits the court to order the plaintiff pay all or part of the costs of the previously dismissed action.[2] Recently, an explosion of litigation concerning Rule 41(d) has left United States Courts of Appeals split on whether the rule allows for the recovery of attorneys’ fees as “costs” of the previously dismissed actions.[3] Typically, attorneys’ fees are not awardable as “costs” to the prevailing party under the so-called “American Rule” unless Congress has carved out an exception to the rule.[4] Notably, four different circuits have established strong stances on the award of attorneys’ fees pursuant to Rule 41(d) within the last two years after a sixteen year period of stagnation.[5] As a result, three prominent interpretations of Rule 41(d) exist, with three courts ruling attorneys’ fees are always awardable as costs,[6] one court ruling attorneys’ fees are never awardable as costs,[7] and four courts finding middle ground by ruling attorneys’ fees are awardable as costs if the underlying substantive statute of the action brought allows for the award of attorneys’ fees.[8] This article explores Rule 41(d) and its intent and provides a survey of each available circuit’s position of the award of attorneys’ fees as “costs” pursuant to Rule 41(d).

RULE 41(d)

The plain text of Federal Rule of Civil Procedure 41(d) provides:

If a plaintiff who previously dismissed an action in any court files an action based on or including the same claim against the same defendant, the court: (1) may order the plaintiff to pay all or part of the costs of that previous action; and (2) may stay the proceedings until the plaintiff has complied.[9]

At its core, Rule 41(d) is intended to discourage forum shopping and vexatious litigation by the plaintiff.[10] Functionally, although the statute uses only the word “costs” and does not explicitly permit attorneys’ fees, courts have noted statutory ambiguity regarding the ambiguity of “costs” and have reached various outcomes: in some cases, statutory provisions of “costs” have been found to not include attorneys’ fees[11]; while in other cases, statutory language allows for the inclusion of attorneys’ fees as “costs,”[12] and others are dependent on if the underlying statutory basis of the suit allows for it.[13] Justifications for the variance in interpretation range from fulfilling the public policy deterrence goals of the rule,[14] to strictly following the statute’s plain language,[15] to reasoning by analogy in light of the treatment of other similarly vague statutes.[16] As one may imagine, finding the pulse of the legislature when determining the definition of “costs” is no easy task.

CIRCUIT OVERVIEW

The Always Awardable Rule

            The Eighth, Tenth, and Second Circuits have adopted what may be termed the “Always Awardable Rule,” which permits the award of attorneys’ fees as costs pursuant to Rule 41(d) at the judge’s discretion.[17] Importantly, the Second Circuit held the purpose of Rule 41(d) would be “substantially undermined were the awarding of attorneys’ fees to be precluded.”[18] The court reasoned Rule 41(d)’s purpose to deter forum shopping and vexatious litigation is unmistakable and undisputed, and that purpose would be handicapped if district courts were barred from assessing attorneys’ fees as costs.[19]

The Never Awardable Rule

            In 2000, the Sixth Circuit became the only circuit court to adopt what may be termed the “Never Awardable Rule” when it found attorneys’ fees are never permissible as costs pursuant to Rule 41(d) in Rodgers v. Wal-Mart Stores, Inc..[20] In total, the Sixth Circuit reasoned because Congress did not explicitly include attorneys’ fees as costs in Rule 41(d), and Congress was not so unambiguous in its drafting as to read in an implicit permission for attorneys’ fees, including attorneys’ fees as “costs” would be to improperly judicially circumvent the intent of the legislature.[21]

The Underlying Statute Rule

            The Third, Fourth, Fifth, and Seventh Circuits have all adopted what may be termed the “Underlying Statute Rule.”[22] Stated simply, the Underlying Statute Rule allows for the recovery of attorneys’ fees as costs pursuant to Rule 41(d) only if the underlying statute in the plaintiff’s original suit allows for the recovery of attorneys’ fees as costs.[23] In choosing to adopt the Underlying Statute Rule, the Third Circuit notably reasoned the Always Awardable interpretation defies the American Rule, that each litigant pay its own attorneys’ fees, too heavily because Rule 41(d) is silent on the award of attorneys’ fees as costs.[24] The court also found issue with the Never Awardable interpretation, reasoning that the drafters of Rule 41(d) had likely vaguely defined the term “costs” for good reason, therefore an “analysis beyond the plain language” was necessary to determine Congress’ intent.[25]

MOVING FORWARD

            The inclusion of attorneys’ fees as “costs” pursuant to Rule 41(d) is an area of law undergoing rapid development. With the addition of four new circuit opinions within the last two years, all but four circuits now have precedential rulings governing the availability of fees under Rule 41(d). Importantly, though, the sister circuits who have ruled on the matter have all adopted bright-line positions that are readily distinguishable from one another. In addition, the lack of stance from the District of Columbia, Ninth, and Eleventh Circuits pose an interesting opportunity for development, as they are particularly influential and may shift the majority balance in one direction. Alternatively, if all three courts agreed on a new rule, they could create a plurality of opinion among the circuit courts, with three different interpretations of the rule holding heavy weight.


[1] Fed. R. Civ. P. 41(d)

[2] Id.

[3] See Horowitz v. 148 South Emerson Associates LLC, 888 F.3d 13 (2d Cir. 2018); Garza v. Citigroup Inc., 881 F.3d 277 (3rd Cir. 2018); Portillo v. Cunningham, 872 F.3d 728 (5th Cir. 2017); Andrews v. America’s Living Centers, LLC, 827 F.3d 306 (4th Cir. 2016); Robinson v. Bank of America, N.A., 553 Fed.Appx. 648 (8th Cir. 2014); Meredith v. Stovall, 216 F.3d 1087 (10th Cir. 2000); Rogers v. Wal-Mart Stores, Inc., 230 F.3d 868 (6th Cir. 2000); Esposito v. Piatrowski, 223 F.3d 497 (7th Cir. 2000); Evans v. Safeway Stores, Inc., 623 F.2d 121 (8th Cir. 1980).

[4] See Runyon v. McCrary, 427 U.S. 160, 185-86 (1976); Alyeska Service Pipeline Co. v. Wilderness Society, 421 U.S. 240, 247 (1975).

[5] See Horowitz v. 148 South Emerson Associates LLC, 888 F.3d 13 (2d Cir. 2018); Garza v. Citigroup Inc., 881 F.3d 277 (3rd Cir. 2018); Portillo v. Cunningham, 872 F.3d 728 (5th Cir. 2017); Andrews v. America’s Living Centers, LLC, 827 F.3d 306 (4th Cir. 2016).

[6] See Horowitz v. 148 South Emerson Associates LLC, 888 F.3d 13 (2d Cir. 2018); Meredith v. Stovall, 216 F.3d 1087 (10th Cir. 2000); Evans v. Safeway Stores, Inc., 623 F.2d 121 (8th Cir. 1980).

[7] Rogers v. Wal-Mart Stores, Inc., 230 F.3d 868 (6th Cir. 2000).

[8] See Garza v. Citigroup Inc., 881 F.3d 277 (3rd Cir. 2018); Portillo v. Cunningham, 872 F.3d 728 (5th Cir. 2017); Andrews v. America’s Living Centers, LLC, 827 F.3d 306 (4th Cir. 2016); Esposito v. Piatrowski, 223 F.3d 497 (7th Cir. 2000).

[9] Fed. R. Civ. P. 41(d).

[10] Simeone v. First Bank Nat’l Assn., 971 F.2d 103, 108 (8th Cir. 1992).

[11] Horowitz, 888 F.3d at 24(referencing Roadway Express, Inc. v. Piper, 447 U.S, 752, 759 (1980); Hines v. City of Albany, 862 F.3d 215, 220-21 (2d Cir. 2017)).

[12] Id. at 24-25 (referencing Andrews, 827 F.3d at 311 n.2.)

[13] Id. at 25 (referencing Marek v. Chesny, 473 U.S. 1, 9 (1985); Adsani v. Miller, 139 F.3d 67, 79 (2d Cir. 1998)).

[14] Id. at 25-26.

[15] Rogers, 230 F.3d at 874.

[16] Esposito, 223 F.3d at 500-01 (citing Marek v. Chesny, 473 U.S. 1, 9 (1985)).

[17] See Robinson v. Bank of America, N.A., 553 Fed.Appx. 648, 649 (8th Cir. 2014); Meredith v. Stovall, 216 F.3d 1087 (10th Cir. 2000); Horowitz v. 148 South Emerson Associates LLC, 888 F.3d 13 (2d Cir. 2018).

[18] Horowitz, 888 F.3d at 25.

[19] Id. (quoting Andrews, 827 F.3d at 309 (internal citations omitted)).

[20] Rogers v. Wal-Mart Stores, Inc., 230 F.3d 868 (6th Cir. 2000).

[21] Id. at 875-76.

[22] See Garza v. Citigroup Inc., 881 F.3d 277, 283-84 (3rd Cir. 2018); Andrews v. America’s Living Centers, LLC, 827 F.3d 306, 311 (4th Cir. 2016); Portillo v. Cunningham, 872 F.3d 728, 738-39 (5th Cir. 2017); Esposito v. Piatrowski, 223 F.3d 497, 501-02 (7th Cir. 2000).

[23] Id.

[24] Garza, 881 F.3d at 281-82 (quoting Baker Botts L.L.P. v. ASARCO LLC, 135 S.Ct. 2158, 2164 (2015) (internal citations omitted)).

[25] Id. (quoting Marek, 471 U.S. at 8).

Attorney Advertising: You Get a Multi-Million Dollar Settlement! You get one too!

Photo Credit: https://www.istockphoto.com/photo/falling-money-on-a-white-background-dollars-rain-3d-illustration-gm678604596-124542593

By:  Sara Rogan

Member, American Journal of Trial Advocacy

In the over 40 years since the seminal case of Bates v. State Bar of Arizona[1] in 1977, attorney advertising has been and continues to be revolutionized. What was once illegal is now prolific. It was estimated by Kantar Media’s Campaign Media Analysis Group that in 2016 alone, attorneys and firms spent almost $771 million on televised advertisements.[2] One firm is estimated to spend roughly $30 million annually on advertising.[3] The Institute for Legal Reform notes that “legal advertising not only appears to be recession-proof, but also politics-proof,” surviving and thriving in a time when other advertisement industries struggle.[4] A well-known Alabama attorney has at least 2,000 billboards employed for his advertisements throughout the state and is becoming a familiar face throughout the southeast.[5] Attorney advertisements take the form of billboards, commercials, displays on websites, and search engine prompts – not to mention all the paraphernalia that contains firm names and logos such as cups, koozies, pens, and notepads. The path is already being paved for attorneys to collect numbers from police reports to solicit their services to people involved in an incident.[6]

A common advertisement tactic for billboards is to show how much past clients have received in a settlement by displaying an exorbitant amount that is quite appealing.[7] However, receiving a large settlement is never a guarantee, as settlements are fact-driven and typically dependent upon a defendant’s assets.[8] One law firm in New York has taken appropriate measures to absolve themselves of future liability by indicating in their disclaimer that “[p]rior results do not guarantee a similar outcome.”[9] Could advertising these unicorn, million dollar settlements result in false expectations for potential plaintiffs? While Bates addressed advertising as a whole, it did not address any “extravagant” claims relating to the legal services.[10]

Understanding the basis and outcome of Bates is critical to addressing the potential issue of advertising today. Attorney advertisements prior to Bates were seemingly limited to listing “the attorney’s name, address, and telephone number, office hours, and the like . . . in the classified section of the telephone directory.”[11] These limitations were imposed for the preservation of the integrity of the profession, the possibility that clients could be misled, precaution in limiting costs for clients, along with several other policy reasons.[12] However, the Supreme Court regarded the permissible information as “scant nourishment.”[13] The Court eventually concluded that the aforementioned restrictions were not “an acceptable reason for the suppression” of such advertisements.[14] Consequently, the Court held that the advertisement in question, a newspaper advertisement displaying the services and fees the attorneys were offering, was permissible.[15] The Court reasoned that the rule barring the advertisement violated the attorneys’ First Amendment rights to Free Speech.[16] The Court nevertheless included a caveat, stating that even though speech in terms of attorney advertising is protected and permissible, it is still subjected to regulation and cannot be “false, deceptive, or misleading.”[17] Since this development, attorney advertising has skyrocketed. However, the Bates holding did not address the legal services themselves and whether or not they were adequate.

In general, this is no general prohibition under the Model Rules of Professional Conduct against advertising or discussing past settlements or judgments.[18] Rubenstein v. Florida Bar[19] elaborated on the issue of attorney advertisements that contained information regarding money a client has received from a past claim.[20] Within the Florida Bar, a task force advocated for a “complete ban on references to past successes or results in attorney advertising” regardless of the manner and method of advertising.[21] This rule evolved over time to restrict content unless the results publicized were “objectively verifiable.”[22] The firm in Rubenstein created some advertisements that allegedly violated that rules imposed by the bar.[23] The court determined that that rules regulating the attorney’s advertising were not enforceable and granted in favor of the attorneys. The court stated that

The Guidelines amount to a blanket restriction on the use of past results in attorney advertising on indoor and outdoor display, television and radio media. The Bar has not demonstrated that the prohibition’s breadth was necessary to achieve the interest advanced, or that lesser restrictions—e.g., including a disclaimer, or required language—would not have been sufficient. The Bar has failed to meet its burden under this prong as well.[24]

Essentially, attorney advertising enjoys a degree of protection offered by the First Amendment as long as it is not “false, deceptive, or misleading”[25] and that includes mentioning past settlements in advertisements.[26] While the legalities have been covered, what about the realities of attorney advertising?

Most lay individuals might not realize that these multi-million dollar settlements are not as common as the billboard they are advertised on. Further, the holding in Rubenstein allowing references to past claim amounts is not uncommon, as this court “joins a majority of states” in deciding that regulations “that completely prohibit attorney advertising of past results violate the First Amendment.”[27] With this trend expanding among a majority of states, the potential for unjustifiable expectations expands correspondingly. Neil Lloyd, who formerly served on the ABA’s Legislation Subcommittee, believes that potential clients are not counting on the settlements advertised but rather are using the advertisements merely to find an attorney and will then conduct additional research.[28] While this is the ideal path, it is also a potentially high burden to place on the public: should attorneys, who understand the legal system better, be more regulated by the bar in their advertisements, rather than depending on the public to protect themselves and make informed decisions?

The court has clearly drawn a line against misleading advertisements, but the issue is deciding at what point an advertisement for a large settlement crosses that line to become misleading. Comment 3 for Rule 7.1 of the Model Rules of Professional Conduct addresses this potential issue.[29] The comment recognizes that referencing a past judgment could be deceptive to future clients if the representation is “presented so as to lead a reasonable person to form an unjustified expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client’s case.”[30] The comment concludes with the recommendation of including a disclaimer to prevent any liability should a potential client rely on the advertisement as a guarantee for the outcome of their specific case.[31] The CEO of Group Matrix, Richard Sackett, has commented that “[e]veryone wants the practice of law to remain dignified . . . [b]ut the public doesn’t always respond to dignified ads,” indicating that ultimately lawmakers might need to intervene for attorney advertisements comparing their services and results against another, as the bar regulations might be insufficient.[32]

Essentially, if the statement is truthful or “objectively verifiable,”[33] firms and attorneys are not prohibited from saying it in their advertisements.[34] However, the truth can be misleading, as the truth in these instances is fact-specific and not necessarily a guarantee for future clients. Courts are attempting to balance the attorneys’ interests of Free Speech in advertising with the importance of protecting potential clients who, in their vulnerable state, might not realize that advertisements referring to past settlements are simply not as common as attorneys would have them believe. Hopefully over time courts will more clearly define this line for attorneys and firms who engage in advertising.


[1] 433 U.S. 350 (1977).

[2] Victor Li, Legal Advertising Blows Past $1 Billion and Goes Viral, ABA Journal (April 2017), http://www.abajournal.com/magazine/article/legal_advertising_viral_video.

[3] Id.

[4] Ken Goldstein, Trial Lawyer Marketing, Institute For Legal Reform (Oct. 2015), https://www.instituteforlegalreform.com/uploads/sites/1/KEETrialLawyerMarketing_2_Web.pdf.

[5] Kent Faulk, Alexander Shunnarah Legal Empire Built on Thousands of Billboards, TV Spots, Al.com (May 17, 2015), https://www.al.com/news/birmingham/index.ssf/2015/05/alexander_shunnarah_introduces.html.

[6] Natasha Sheth, Need a Lawyer? Check Your Text Messages, ABA Journal (June 27, 2017),https://www.americanbar.org/groups/litigation/publications/litigation-news/top-stories/2013/need-a-lawyer-check-your-text-messages/.

[7] Michael Hristakopoulos, Dan Newlin Got You How Much???, Orlando Sentinel (Aug. 7, 2017), https://www.orlandosentinel.com/opinion/os-ed-stop-dan-newlin-got-me-billboard-campaign-myword-20170807-story.html.

[8] Coulter Boeschen, The “Average” Personal Injury Settlement, All Law,https://www.alllaw.com/articles/nolo/personal-injury/average-settlement.html.

[9] Shanker Law Group, http://www.shankerlaw.com/images/Attorney_Advertising.pdf.

[10] Bates, 433 U.S. at 366.

[11] Id. at 366-67.

[12] Id. at 368, 372, 377.

[13] Id. at 367.

[14] Id. at 379.

[15] Id. at 384.

[16] Bates, 433 U.S. at 384.

[17] Id. at 383.

[18] Rubenstein v. Florida Bar, 72 F. Supp. 3d 1298, 1305 (S.D. Fla. 2014).

[19] 72 F. Supp. 3d 1298 (S.D. Fla. 2014)

[20] Id. at 1304.

[21] Id. at 1316.

[22] Id. at 1302 (quoting Fla. Rules of Prof’l Conduct r. 4-7.13).

[23] Id. at 1304.

[24] Id. at 1318.

[25] Bates, 433 U.S. at 383.

[26] Rubenstein, 72 F. Supp. 3d at 1303.

[27] Pamela Menaker, Court Strikes Florida Rule Preventing Advertising of Past Results, ABA Journal (April 6, 2015), https://www.americanbar.org/groups/litigation/publications/litigation-news/top-stories/2015/court-strikes-florida-rule-preventing-advertising-of-past-results/.

[28] Id.

[29] Model Rules of Prof’l Conduct 7.1 cmt. 3 (2015).

[30] Id.

[31] Id.

[32] Li, supra note 2.

[33] Id. at 1302 (quoting Fla. Rules of Prof’l Conduct r. 4-7.13).

[34] Searcy v. Florida Bar, 140 F. Supp. 3d 1290, 1292 (N.D. Fla. 2015).

Opportunity Hidden in the New Tax Law

Photo Credit: https://www.camoinassociates.com/opportunity-zone-update-find-your-community-interactive-map

By: Alex Townsley

Benjamin Franklin has been credited with once saying, “[I]n this world, nothing is certain except death and taxes.”[1] Americans are reminded of the truth of the latter certainty every year during tax season, but this year, along with the usual pains of preparing one’s taxes, taxpayers are grappling with understanding the effects of the Tax Cuts and Jobs Act of 2017.[2] However, there may be some unexpected relief in the form of a new program called “[O]pportunity [Z]one[s].”[3]

What is an Opportunity Zone? 

In a recent letter to the Treasury Secretary, members from both houses of Congress and political parties described the Opportunity Zones tax incentive as “deliver[ing] transformational impact, including new jobs and higher wages, in low-income areas throughout the country, many of which have been left behind by the national recovery after the Great Recession.”[4] But what is an opportunity zone? In short, an opportunity zone is an economically troubled area that under certain circumstances offers investors preferential tax treatment for new investments in that community.[5] Before an area can be used for this purpose, it must be designated as a “qualified opportunity zone.”[6] I.R.C. § 1400Z-1(a) defines a qualified opportunity zone as “a population census tract that is a low-income community that is designated as a qualified opportunity zone.”[7] To become a designated zone, four criteria must be met: (1) the area must be low income; (2) the area must be nominated by the chief executive officer of the state for opportunity zone status; (3) the chief executive must notify the Secretary of the Treasury of the nomination; and (4) the Secretary of the Treasury must certify the nomination and designate the zone within the consideration time period.[8] Once an opportunity zone has been certified and designated, any investment made in the area through a properly recognized fund is eligible for preferential tax treatment.

Why invest in an Opportunity Zone?

Under the new tax law, capital gains that are invested in qualified opportunity zones can be sheltered from taxation.[9] To make this investment, the funds must be placed in a “qualified opportunity fund” defined as “any investment vehicle which is organized as a corporation or a partnership for the purpose of investing in qualified opportunity zone property . . . that holds at least 90 percent of its assets in qualified opportunity zone property . . . .”[10] These opportunity funds are managed by private fund managers with little oversight from the government once established.[11] To ensure the opportunity funds maintain the required 90 percent investment within the opportunity zone, a penalty can be imposed on the fund for each month its assets fall below the threshold.[12]

As an investment vehicle, an opportunity fund can be either a partnership or corporation based on the wishes of the investors.[13] This flexibility, along with the fact that investors need not live in the opportunity zone they wish to invest in, opens the door for taxpayers seeking preferential treatment.[14] Once a fund becomes a qualified opportunity fund, a potential investor can invest in an existing business, real estate, or new projects that fall within a qualified opportunity zone.[15] However, the investment must be made into something acquired after January 1, 2018, and not in something the fund owned prior to that date.[16]

How are Opportunity Zones different from traditional private investment?

Unlike traditional private investment, which may have qualified the investor for a tax credit, the Opportunity Zone program operates under new Internal Revenue Code sections.[17] As a product of these new rules, the capital gain invested is treated differently by the IRS.[18] Unlike previous tax programs targeting the same investors, there is no cap on the amount of capital that can be invested in an opportunity fund.[19] Furthermore, the longer the investments stay in the fund, the greater the tax benefit for the investor.[20]

The Future of Opportunity Zones 

As of now, the reaction to the Opportunity Zone program established by the Tax Cuts and Jobs Act of 2017 has been mixed. This mixed response comes from many factors. The first and foremost of these factors is that the program has yet to be fully examined by tax professionals and investors alike.[21] Despite this uncertainty, over 8,700 qualified opportunity zones have been designated in the country, including zones in all fifty states, the District of Columbia, and five U.S. Territories.[22] Skeptics of the program point to zones in areas that would have attracted investment anyway.[23] Other criticisms include the arguably hard nature of quantifying the benefit gained from opportunity funds.[24] Regardless of where one falls in his opinion of the program, at a minimum, the program highlights areas of the country that are falling behind and creates an opportunity for those communities to thrive again.


[1] Benjamin Franklin’s Last Great Quote and the Constitution, Nat’l Const. Ctr.: Const. Daily (Nov. 13, 2018), https://constitutioncenter.org/blog/benjamin-franklins-last-great-quote-and-the-constitution/.

[2] Darla Mercado, The New Tax Law Has a Bunch of Changes. Here’s What You Need to Know as Filing Season Begins, CNBC (Jan. 28, 2019, 4:41PM), https://www.cnbc.com/2019/01/28/-heres-what-you-need-to-know-about-the-new-tax-law-as-filing-season-begins.html.

[3] See I.R.C. § 1400Z-1(a) (West 2018) (introducing opportunity zones).

[4] Letter from Tim Scott, Senator, United States Senate, et al. to Steven Mnuchin, Secretary, United States Dep’t of the Treasury (Jan. 24, 2019) https://www.scott.senate.gov/imo/media/doc/1.23.19%20Signed%20Opportunity%20Zone%20Letter%20to%20Secretary%20Mnuchin.pdf. 

[5] Opportunity Zones Frequently Asked Questions, IRS (Jan. 11, 2019), https://www.irs.gov/newsroom/opportunity-zones-frequently-asked-questions.

[6] I.R.C. § 1400Z-1(a) (West 2018).

[7] Id.

[8] I.R.C. § 1400Z-1(b) (West 2018).

[9] Devin Thorpe, Opportunity Zones Investors Receive Needed Guidance for Measurable Impact, Forbes (Feb. 11, 2019, 9:00AM), https://www.forbes.com/sites/devinthorpe/2019/02/11/opportunity-zones-investors-receive-needed-guidance-for-measurable-impact/#732d89b27cc1.

[10] I.R.C. § 1400Z-2(d)(1) (West 2018).

[11] What are Opportunity Zones and How do They Work?, Fundrise, https://fundrise.com/education/blog-posts/what-are-opportunity-zones-and-how-do-they-work#why-created (last visited Feb. 17, 2019).

[12] I.R.C. § 1400Z-2(f)(1) (West 2018).

[13] Opportunity Zones Frequently Asked Questions, IRS (Jan. 11, 2019) https://www.irs.gov/newsroom/opportunity-zones-frequently-asked-questions.

[14] Id.

[15] Erin Arvedlund, Opportunity Zones: Rules Finally Come Out, and Yup, They’re Complex (But Manageable), The Inquirer (Jan. 7, 2019), https://www.philly.com/business/opportunity-zone-20190107.html.

[16] Id.

[17] What are Opportunity Zones and How do They Work?, Fundrise, https://fundrise.com/education/blog-posts/what-are-opportunity-zones-and-how-do-they-work#why-created (last visited Feb. 17, 2019); See I.R.C. §§ 1400Z-1 to 1400Z-2 (West 2018) (codifying the Opportunity Zone program).

[18] What are Opportunity Zones and How do They Work?, Fundrise, https://fundrise.com/education/blog-posts/what-are-opportunity-zones-and-how-do-they-work#why-created (last visited Feb. 17, 2019).

[19] Sarah O’Brien, Heard the Buzz About Opportunity Zone Funds? Here’s the Skinny, CNBC (Nov. 1, 2018, 10:42 AM), https://www.cnbc.com/2018/10/31/heard-the-buzz-about-opportunity-zone-funds-heres-the-skinny.html.

[20] See I.R.C. § 1400Z-2(b)-(c) (West 2018) (discussing investments made in opportunity zones).

[21] Joshua Pollard, 3 New Hints Emerge on Final Opportunity Zone Rules, Forbes (Feb. 11, 2019, 7:45 AM), https://www.forbes.com/sites/joshuapollard/2019/02/11/3-new-hints-emerge-on-final-opportunity-zone-rules/#27e09282f140.

[22] What are Opportunity Zones and How do They Work?, Fundrise, https://fundrise.com/education/blog-posts/what-are-opportunity-zones-and-how-do-they-work#why-created (last visited Feb. 17, 2019).

[23]Sarah O’Brien, Heard the Buzz About Opportunity Zone Funds? Here’s the Skinny, CNBC (Nov. 1, 2018, 10:42 AM), https://www.cnbc.com/2018/10/31/heard-the-buzz-about-opportunity-zone-funds-heres-the-skinny.html.

[24] Id.

KAVANAUGH’S FIRST OPINION: FURTHER SOLDIFYING THE FEDERAL ARBITRATION ACT

Photo Credit: http://altalaw.ca/areas-of-practice/arbitration/

By: Nick Jackson

Associate Editor, American Journal of Trial Advocacy

INTRODUCTION

In January 2019, Brett Kavanaugh, a newly confirmed justice on the Supreme Court of the United States, delivered his first opinion, one that was unanimously confirmed by the Court.[1] In Henry Schein, Inc. v. Archer and White Sales, Inc.,[2] the Court overturned the Fifth Circuit’s interpretation of the Federal Arbitration Act, stating “arbitration is a matter of contract, and courts must enforce arbitration contracts according to their terms.”[3] In recent years, arbitration agreements have become a controversial aspect of the American legal system.[4] Accordingly, many individuals have brought forth challenges to contest unfavorable arbitration results.[5] One of the most criticized aspects of arbitration deals with forced arbitration agreements.[6] However, the controversial nature of arbitration agreements has failed to limit their use in industries where the use of arbitration is increasing such as the credit card, banking, insurance, and mobile phones services industries.[7]

Recently, the popularity of arbitration has expanded rapidly.[8] This increase in popularity is largely due to “the judiciary’s modern favorable attitude toward enforcement of arbitration clauses.”[9] However, many legal scholars have criticized the role of arbitration in the American legal system by stating, “the Supreme Court [has] engaged in improper judicial activism by misinterpreting the Federal Arbitration Act of 1926 to create a national rule of arbitration clause enforceability that outstripped any reasonable view of the intent of the enacting Congress.”[10] Controversial nature aside, arbitration agreements have seen a great deal of bi-partisan support from both the conservative wing and the liberal wing of the Supreme Court.[11] The bi-partisan support of arbitration agreements was further solidified when the Court unanimously upheld the Federal Arbitration Act in Henry Schein, Inc. v. Archer and White Sales, Inc.[12]

FACTS

Archer & White Sales, Inc., filed a lawsuit against Henry Schein, Inc. alleging antitrust violations and seeking both money damages and injunctive relief.[13] However, both parties had previously agreed to a contract providing for “arbitration of any dispute arising under or related to the agreement, except for, among other things, actions seeking injunctive relief.”[14] At the district level, Schein asked the district court to refer the case to arbitration; however, Archer & White argued that the Federal Arbitration Act did not apply because it sought injunctive relief.[15] The district court agreed, holding that Schein’s argument for arbitration was “wholly groundless.”[16] Accordingly, the district court denied Schein’s motion to compel arbitration and the Fifth Circuit ultimately affirmed.[17]

ANALYSIS

 In deciding Schein, the Court rejected the Fifth Circuit’s “wholly groundless” argument by first recognizing that under the Federal Arbitration Act, arbitration is a contract and, thus, courts must enforce arbitration contracts according to their terms.[18] Accordingly, the Court held the parties to a contract “may agree to have an arbitrator decide not only the merits of a particular dispute, but also ‘gateway questions of arbitrability.’”[19] Thus, “when the parties’ contract delegates the arbitrability question to an arbitrator, a court may not override the contract even if the court thinks that the arbitrability claim is wholly groundless.”[20]

In challenging the Federal Arbitration Act, Archer & White brought forth four separate arguments which the Court rejected.[21] First, Archer & White contended that portions of the Federal Arbitration Act should be interpreted as stating that courts must always resolve questions of arbitrability.[22] However, following prior precedent, the Court rejected this argument.[23] Second, Archer & White contended the Federal Arbitration Act provides for “back-end judicial review” if an arbitrator has exceeded his or her powers; however, Archer & White sought “front-end review” and, thus, the Court denied to “redesign the Act.”[24] Third, Archer & White contended it would be a waste of resources to hire an arbitrator that ignores the Federal Arbitration Act’s ‘wholly groundless” exception; however, the Court held no such exception exists, stating “[t]his Court may not engraft its own exceptions onto the statutory text.”[25] Lastly, the Court rejected Archer & White’s argument that the exception is necessary to “deter frivolous motions to compel arbitration” by stating arbitrators are already capable of efficiently disposing of frivolous cases and that such motions have not caused issues in circuits not recognizing a “wholly groundless” exception.[26]

CONCLUSION

Controversial nature aside, the Court’s ruling in Schein further solidifies the Federal Arbitration Act and its implications. The bi-partisan support of arbitration agreements was further solidified in this unanimous decision and it further demonstrates that arbitration will likely be a major component of the American legal system for years to come.


[1] Adam Liptak, In His First Supreme Court Opinion, Justice Brett Kavanaugh Favors Arbitration, N.Y. Times(Jan. 8, 2019) https://www.nytimes.com/2019/01/08/us/politics/supreme-court-brett-kavanaugh-opinion.html.

[2] 139 S. Ct. 524 (2019).

[3] Schein, 139 S. Ct.at 526.

[4] See Gregg Bertram, Employment Arbitration: Controversy Unleashed, Pac. ADR Consulting (June, 6, 2018) http://www.pacificadrconsulting.com/employment-arbitration-controversy-unleashed/ (“It is no secret that arbitration has in general become a controversial alternative dispute resolution (ADR) process.”).

[5] Id.

[6] Id.

[7] Jason Cheung, Business use of Arbitration Clauses, LegalMatch (May, 2, 2018) https://www.legalmatch.com/law-library/article/business-use-of-arbitration-clauses.html?formVariant=1.

[8] Symposium, Keeping Arbitrations from Becoming Kangaroo Courts, 8 Nev. L. J. 251, 251 (2007).

[9] Id.

[10] Id.

[11] Stephen J. Ware, The Centrist Case for Enforcing Adhesive Arbitration Agreements, 23 Harv. Negot. L. Rev. 29, 32 (2017).

[12] 139 S. Ct. 524 (2019).

[13] Schein, 139 S. Ct. at 526.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Schein, 139 S. Ct. at 526. (internal quotations omitted).

[20] Id.

[21] Id.

[22] Id.

[23] Id.; First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944 (1995).

[24] Id.

[25] Schein, 139 S. Ct. at 526.

[26] Id.

302 Pages of Hope

“Hope is a good thing, maybe the best of things, and no good thing ever dies.” The Shawshank Redemption (Castle Rock Entertainment 1994).

Senior Research and Writing Editor: Amanda L. B. Wineman

302 pages. 302 pages is what it took District Court Judge Myron Thompson to fully explain his ruling in Braggs v. Dunn.[1] He wrote 302 pages detailing the inadequacies and failures of the Alabama Department of Corrections (ADOC) in providing mental health care to its prisoners.[2] In a multi-faceted set of cases, the Southern Poverty Law Center, along with attorneys from other Alabama firms, brought suit on behalf of a class of prisoners from fifteen ADOC facilities against ADOC.[3] The first phase involved American Disability Act (ADA) claims that ADOC discriminated on the basis of physical disabilities and that they failed to make accommodations for disabilities.[4] “Phase 2A involves Eighth Amendment, ADA, Rehabilitation Act, and due-process claims regarding mental-health care. The parties settled the Phase 2A ADA and Rehabilitation Act claim. The due process claims are pending before the court for settlement approval.”[5] The third phase (Phase 2B) “will focus on medical-care and dental-care claims under the Eighth Amendment.[6] This opinion resolves only the Eighth Amendment claim of inadequate mental-health care. Lasting seven weeks, the bench trial resulted in a ruling primarily in favor of the prisoners on June 27, 2017.[7]

After reading his opinion, it is easy to understand why Judge Thompson required 302 pages to rule in Braggs. He needed to explain the procedural status of the complex case, provide necessary background regarding the facilities that were involved in the litigation, articulate the standard the court must use to determine whether ADOC violated the Eighth Amendment, and, most importantly, explain the court’s ruling on the several issues (and several sub-issues) of inadequacy the court found.[8] Having briefly discussed the case’s procedural status, the court noted fifteen facilities implicated in the case: Bibb, Bullock, Donaldson, Draper, Easterling, Elmore, Fountain, Hamilton, Holman, Kilby, Limestone, St. Clair, Staton, Ventress, and Tutwiler.[9] Tutwiler is the only women’s prison in Alabama, and Tutwiler, Bullock, and Donaldson “serve as treatment hubs for mental-health services, containing a residential treatment unit (RTU) and/or a stabilization unit (SU). These two types of units . . . house and treat the most severely mentally ill prisoners.”[10]

Braggs is not the first case to address the issue of prisoners receiving inadequate mental health care.[11] Therefore, the standard the court must apply has already been outlined as, “To prevail on an Eighth Amendment challenge, plaintiffs must prove that prison officials acted with deliberate indifference to serious medical needs.”[12] In determining whether this standard has been met a court must conduct two tests:

The objective test requires showing that the prisoner has ‘serious medical needs,’ and either has already been harmed or been ‘incarcerated under conditions posing substantial risk of serious harm. Subjectively, a prisoner must show that an official acted with deliberate indifference to that harm or risk of harm: that is, the official must have known[] of and disregarded[] an excessive risk to inmate health or safety.[13]

This is the standard Judge Thompson applied in the instant case.[14]  In order to “establish deliberate indifference, plaintiffs must show that defendants had subjective knowledge of the harm or risk of harm, and disregarded it or failed to act reasonably to alleviate it.”[15]

Of the several issues the court found, it organized them into seven main categories referred to as “interrelated areas of inadequacy”:

(1) identification and classification of prisoners with mental illness; (2) treatment planning; (3) psychotherapy; (4) inpatient mental-health care units; (5) crisis care and suicide prevention; (6) use of disciplinary actions for symptoms of mental illness; and (7) use of segregation for mentally ill prisoners. In all seven areas, experts from both sides by and large agreed about significant flaws affecting mentally ill prisoners . . . Even Associate Commissioner Naglich [a named defendant] essentially agreed that some of these were problems so significant that they must be fixed as soon as possible, because lives are at risk.[16]

The court dictated four ways the identification and classification of prisoners with mental illness was inadequate: (1) the intake process; (2) the classification of mental-health needs; (3) the referral process; and (4) utilization of mental-health units.[17] A licensed practical nurse (LPN), without physician oversight, conducts the intake process through a series of paper questionnaires and makes a decision as to which prisoners require the attention of a licensed psychiatric physician. This ranking system requires LPNs to triage the prisoners and assign their medical needs somewhere along a sliding scale. [18] Tasking the LPNs with the duty to rank prisoners’ psychiatric needs, without proper mental health training, leads to underreporting; thereby leading to skewed statistics regarding the number of prisoners with serious mental health needs.[19] Additionally, the ranking system itself is inadequate because it “fails to accurately reflect prisoners’ mental-health needs.”[20]

“The purpose of the referral process is to identify prisoners whose mental illnesses develop during their incarceration and prisoners whose mental-health needs were not identified during the intake process.”[21] Describing the proper procedure, the defense expert explained that triaging  is the proper procedure for dealing with referrals.[22] The clearest inadequacy is in the simple fact that “ADOC does not have a system to triage and identify the urgency of each request[,]” despite the mental health care provider reporting this same issue every year since 2011.[23] Further, due to the lack of any effective referral process, prisoners have resorted to self-harm to get attention from the mental-health staff.[24]

Utilization of mental-health units at ADOC prove inadequate because although RTUs or SUs should house approximately 515 ADOC prisoners, only 310 of the 376 beds were occupied by prisoners with mental-health needs.[25] The defense expert stated that those prisoners sent to SUs or RTUs were often there for a short time despite their need for continued care.[26]

Some issues are more easily explained, such as the conclusion that treatment planning is inadequate at ADOC. ADOC fails to create individualized plans for each prisoner based on his or her mental health needs.[27] Psychotherapy is constitutionally inadequate at ADOC for several reasons listed in the opinion, including understaffing, reliance on psychotropic medications over counseling and psychotherapy, under qualified mental health staff, and a lack of confidentiality.[28] What is important to note is that Judge Thompson describes these overarching areas of inadequacy as “interrelated.”[29] For example, ADOC’s inability to provide adequate psychotherapy, or its ability to identify and classify mental health needs, is caused largely by the same issues that cause ADOC’s inability to provide adequate inpatient care andother issues enumerated above.

ADOC’s suicide prevention and crisis care were found to be inadequate for several reasons.[30] These reasons were mostly echoing the issues that caused the previously described inadequacies. However, perhaps the most powerful evidence of ADOC’s failure to prevent suicides and provide crisis care occurred during the trial. Jamie Wallace, a prisoner at Bullock, testified that he attempted suicide several times and revealed scars to the court.[31] After having to reconvene court and coax testimony out of Wallace, the court demanded a report on his condition and the exact steps that ADOC was going to take to treat him.[32] The exceptionally powerful evidence came when only ten days after testifying about his mental condition and the lack of treatment he received, Jamie Wallace tragically committed suicide.[33] Judge Thompson somberly noted, “Without question, Wallace’s testimony and the tragic event that followed darkly draped all the subsequent testimony like a pall.”[34] What evidence could be more convincing that ADOC’s suicide prevention and crisis care were inadequate than a man who testified that he was not receiving care in times of crisis and was admittedly and obviously suicidal hanging from a cell? The court outlined the specific areas of inadequacy within suicide prevention and crisis care as: (1) failure to provide crisis care to those who need it; (2) placement of prisoners in crisis in dangerous and harmful settings; (3) inadequate treatment in crisis care; (4) unsafe crisis cells; (5) inadequate monitoring of suicidal prisoners; (6) inappropriate release from suicide watch and inadequate follow up.[35]

The sixth area of inadequacy, inappropriate use of disciplinary actions, refers to ADOC disciplining prisoners for behavior that is symptomatic of mental illness “without adequate regard for the disciplinary sanctions’ impact on mental health.”[36] The court stated, “These punitive practices in turn subject mentally ill prisoners to a substantial risk of decompensation and increased suffering.”[37] Jamie Wallace testified that he had been disciplined and sent to segregation multiple times after attempting suicide or harming himself, and his testimony was echoed by the records and testimony of three other plaintiffs.[38]

Segregation in prison is highly controversial.[39] The plaintiffs asked the court to prohibit mentally ill prisoners from being placed in segregation; however, “the court [saw] no need to reach that broad conclusion.”[40] Instead, the court limited its ruling to finding that ADOC’s segregation practices as they are now are unconstitutional.[41] However, Naglich agreed with plaintiff’s proposition that it is “categorically inappropriate” for seriously mentally ill prisoners to be placed in segregation, and that “such placement is tantamount to ‘denial of minimal medical care.’”[42] Perhaps both Plaintiffs requests and a general overhaul of ADOC’s segregation system could have been achieved considering defendant’s statement conceding the plaintiffs’ point.

There were three main contributing conditions the court discussed: (1) overcrowding; (2) mental-health understaffing; and (3) correctional understaffing.[43] ADOC is designed to hold 13,318 prisoners; however, according to its September 2016 monthly statistical report, it held 23,328 prisoners, bringing the occupancy rate to over 175%.[44] Further, “Plaintiffs’ expert Vail testified that the magnitude of overcrowding in ADOC is the worst he has seen in his career in corrections and consulting for other correctional systems across the country.”[45] Lisa Borden,[46] one of the attorneys assisting in the representation of the plaintiffs, remarked, “The fairly recent sentencing reforms passed by the legislature were meant to address overcrowding, and have done so to a modest extent. Hopefully that will continue, although the current political rhetoric of ‘getting tough on crime again’ poses potential challenges there.”[47] Borden expressed that she could not predict how desperately needed additional space would be created “given that the legislature has now rejected prison construction proposals twice.”[48] The court did not articulate how the defendants must comply with its rulings. 

Although an overwhelming win for the plaintiffs, Judge Thompson did make some rulings in favor of defendants. First, “the court, out of an abundance of caution and exercising its discretion, leaves [the issue of whether periodic mental-health evaluations for all prisoners in segregation are inadequate] to be further addressed by the parties. Second, evidence was insufficient to establish a substantial risk of serious harm arising from ADOC’s medication management practices or the supervision of certified registered nurse practitioners.”[49] The court noted that the reason it found for defendants on these issues was not because ADOC was in fact operating a safe environment with trained employees, but rather that the evidence was insufficient to establish that the inadequacies created a substantial risk of serious harm.[50]

Looking forward, it is important to consider the impact this decision could have on prison litigation, the taxpayers, and the prisoners. With awareness of mental health issues on the rise, demand for treatment will likely only grow stronger. When asked about the likelihood of this decision having an impact nationwide, Borden stated, “The breadth and detail of Judge Thompson’s opinion will very likely have an impact in those cases because it makes clear that State officials cannot abdicate responsibility to provide constitutionally adequate care by passing the buck, literally, to private vendors, or by shrugging and blaming a lack of resources.”[51] Concern could rise regarding the effect this ruling may have on taxpaying citizens. After all, who is going to pay for more room to solve the overcrowding issue and the salaries of more staff? Borden describes the bigger picture: “For whatever reason, the State of Alabama has historically chosen to resist complying with the Constitution until it is made to do so through litigation. Whatever it would have cost to comply, that cost is greatly multiplied by the necessity of forcing it to comply.”[52] She also notes that money will likely be a determining factor in how quickly things change, especially regarding the hiring of additional mental health staff and correctional officers.[53] Additionally, she makes the often forgotten point: “If the State will have prisoners, it must provide adequate care.”[54] The greatest impact, however, will likely be felt by the people at the center of this trial: the prisoners in ADOC facilities.Following Judge Thompson’s ruling, the people in ADOC facilities will likely now have hope that their pleas and cries for change have been heard and that change will come. Borden described her experience throughout this trial stating, “[The most rewarding part] has been working with prisoners who previously have not felt that anyone cared about their plight, and seeing how it affects them to know someone does care.”[55] Through this trial, people who felt abandoned were reminded that someone cares. This case was about people like Jamie Wallace who desperately need hope, and now, 302 pages later, they have it.


[1] Braggs v. Dunn, No. 2:14cv601–MHT, 2017 WL 2773833 (M.D. Ala. June 27, 2017).

[2] Id.

[3] Id. at *2.

[4] Id. at *2 (“The parties settled Phase 1.”) (citing Dunn v. Dunn, 318 F.R.D. 652 (M.D. Ala. 2016)).

[5] Id.

[6] Braggs, 2017 WL 2773833, at *2.

[7] Id. at *2.

[8] Id. at *2, *8, and *11.

[9] Id. at *3.

[10]Id. at *3 (The rest of the mentally ill prisoners do not live in separate housing from the general population, and they often must go to a different part of the prison to receive treatment.)

[11] See Brown v. Plata, 563 U.S. 493 (2011) (stating that overcrowding that results in inadequate mental healthcare is unconstitutional); Casey v. Lewis, 834 F. Supp. 1477 (D. Ariz. 1993) (holding that the mental health treatment in Arizona prisons violated the Eighth Amendment).

[12]Estelle v. Gamble, 429 U.S. 97, 105-106 (1976).

[13]Braggs, 2017 WL 2773833, at *8 (quoting Estelle, 429 U.S. at 104; Farmer v. Brennan, 511 U.S. 825, 834, 837 (1994) (citing Farrow v. West, 320 F.3d 1235, 1245 (11th Cir. 2003) (outlining the requirements of a deliberate indifference standard).

[14]Braggs, 2017 WL 2773833, at *8.

[15]Id. at *55 (citing Thomas v. Bryant, 614 F.3d 1288, 1312 (11th Cir. 2010)).

[16]Id. at *11 (emphasis added).

[17]Id. at *18-21.

[18]Id. at *19 (noting that an MH-0 does not receive further mental health treatment, and an MH-6 requires hospitalization).

[19]Id. (stating that the percentage of prisoners in ADOC is substantially lower than the national average, and experts from both sides concurred on this point).

[20]Id. at *20.

[21]Braggs, 2017 WL 2773833, at *18.

[22]Id.

[23]Id. at *20 (“Experts described examples of ‘increasingly desperate acts’ to get the attention of MHM and necessary services, such as self-injury, fire setting, and suicide attempts.”)

[24]Id.

[25]Id. at *21.

[26]Braggs, 2017 WL 2773833, at *21.

[27]Id. at *22.

[28]Id. at *23-25.

[29]Id. at *11.

[30]Id. at *32 (“First, ADOC and MHM’s use of a suicide risk-assessment tool is too limited to adequately identify those at high risk. Moreover, many prisoners at heightened risk of suicide or self-harm do not receive crisis care because of a severe shortage of crisis cells and staffing, and due to a culture of skepticism towards threats of suicide. Second, suicidal prisoners are often placed in unsafe environments both because of the shortage of crisis cells and because many crisis cells contain unsafe physical structures, such as tie-off points, and dangerous items that can be used for self-harm. Third, prisoners who are identified as suicidal receive inadequate monitoring and treatment. Lastly, inappropriate releases from suicide watch and a lack of follow-up care often push suicidal prisoners back into crises again and again, driving up the demand for crisis cells and diverting resources away from day-to-day, long-term treatment.”)

[31]Braggs, 2017 WL 2773833,at *4.

[32]Id.

[33]Id.

[34]Id.

[35]Id. at *33-41.

[36]Braggs, 2017 WL 2773833, at *41.

[37]Id. at *41 (citing Coleman v. Wilson, 912 F. Supp. 1282, 1320 (E.D. Cal. 1995) (holding that punishing mentally ill prisoners for behaviors indicative of their mental illness violated their Eighth Amendment rights)).

[38]Braggs, 2017 WL 2773833, at *43.

[39]Kristen Weir, Alone, in ‘the hole’, American Psychological Association 43 Am. Psychol. Assn. 54 (2012).

[40]Braggs, 2017 WL 2773833 at *44.

[41]Id.

[42]Id. at *52.

[43]Id. at *12-17.

[44]Id. at *12.

[45]Braggs, 2017 WL 2773833 at *12 (citing Brown, 563 U.S. at 539-42 (affirming the order of three-judge court to lower the occupancy rate in California from 170% to 137.5%).

[46] Lisa Borden is the Pro Bono Shareholder at Baker, Donelson, Bearman, Caldwell & Berkowitz in Birmingham, Alabama. She earned her law degree from Emory School of Law in 1989 and her Bachelor of Arts from the University of Central Florida in 1982. Defense counsel did not respond to request for comment.

[47]E-mail interview with Lisa W. Borden, Pro Bono Shareholder, Baker, Donelson, Bearman, Caldwell & Berkowitz (July 8, 2017).

[48]Id.

[49]Braggs, 2017 WL 2773833 at *54.

[50]Id.

[51]E-mail interview with Lisa W. Borden, Pro Bono Shareholder, Baker, Donelson, Bearman, Caldwell & Berkowitz (July 8, 2017).

[52]Id.

[53]Id.

[54]Id.

[55]Id.

Could Rondini Spark Reform for Rape Laws?

By Mallory Bullard, Senior Research and Writing Editor

Ask yourself, “What do rape cases have in common?” Many responses might be racing through your mind. You may be thinking of words such as: victim, consent, or maybe even force. While those words are all associated with rape cases, the uniqueness of the crime is a commonality that is often overlooked. Rape is distinguishable because “[n]o other violent crime is so fraught with controversy, so enmeshed in dispute and in the politics of gender and sexuality.”[i]

As of late, several high-profile rape cases have spread like wildfire on social media and earned top spots on both local and national news. The story of Megan Rondini is one of the most recent to gain national attention. Megan Rondini was a former college student at the University of Alabama who committed suicide after reporting that a prominent man in the Tuscaloosa area raped her.[ii] As a result, Megan’s parents filed a wrongful death suit in federal court against her alleged attacker (Terry Bunn, Jr.), the Tuscaloosa County sheriff and two employees of the department, as well as two university employees.[iii] Although the case will proceed in federal court, it is pertinent to note that the alleged attacker has not been charged with any crime.

Megan Rondini’s Story:

In July of 2015, Megan Rondini went to police claiming that Terry Bunn, Jr., a man from a wealthy and influential family in the area, raped her after leaving a bar, and possibly drugged her.[iv] Megan told the investigator that she “blacked out,” and when she finally came to, she was in Bunn’s Mercedes and being driven to his home.[v] Upon arriving, Megan “repeatedly asked [] Bunn to take her home or back to her friend’s residence and he refused.”[vi] Alternatively, according to the complaint, Bunn directed Megan to his bedroom, demanded that she get on the bed, and then “forcefully removed her clothing.”[vii] While describing the events to police, Megan said she “repeatedly informed [] Bunn that she did not want to have sex with him and that she needed to rejoin her friends.”[viii] However, the complaint states that Bunn “sexually attacked, abused, and assaulted Megan for over 30 minutes against her will and without her consent.”[ix] After Bunn had passed out, Megan claims she was forced to climb out of a second story window to escape because Bunn had locked the only exit.[x] Once Megan was off of the property, she went to the hospital and spoke with police.[xi] In the days and months after the alleged attack, Megan Rondini sought counseling for trauma caused by the attack.[xii] Although not relevant to this article, the complaint alleges that the University of Alabama failed to provide proper assistance and accommodation to Megan Rondini for her “diagnosed anxiety, depression, [and] PTSD . . . .”[xiii]

In the lawsuit filed by Megan Rondini’s parents, it explains that the investigator dismissed Megan’s rape allegations in part because she did not kick or hit her attacker.[xiv] The investigator concluded that Megan never tried to “resist,” despite repeatedly asking to leave and turning away when Bunn tried to kiss her.[xv] Furthermore, the complaint states that former District Attorney Lyn Head called Megan’s father three weeks after the alleged assault to inform him that she would not be presenting the case to the grand jury because she deemed the assault “consensual” after reviewing Megan’s videotaped interview.[xvi]

These allegations combined with other statements and depictions of the incident, released in various news articles, have sparked some serious controversy over the composition and interpretation of various states’ sex crime laws; specifically, Alabama’s laws.[xvii] Audiences are outraged by the way in which Megan Rondini’s (potential) case was handled, proclaiming “archaic” rape laws are to blame for the investigator concluding Megan did not “earnestly resist” her attacker, and thus no rape occurred.[xviii] This begs the question: is a victim required to physically resist an attacker in order to establish rape? If so, how much resistance?

Unfortunately, there is no clear and concise answer. Rape and sexual assault laws can be difficult and confusing to understand. Rape laws have evolved over time, but remnants of the old English common law continue to lurk behind state statutes and case law.[xix] The result is inconsistent terminology in sex crime laws and a variety of elements that must be proven from state to state.[xx] For instance, terms such as rape, sexual assault, forcible compulsion, and even consent have different meanings depending on the jurisdiction.[xxi]

Megan Rondini’s story has provoked many to take a closer look at the sex crime laws in Alabama. There are two types of rape in Alabama– first and second degree.[xxii] Pursuant to Alabama law, “[a] person commits the crime of rape when he or she engages in sexual intercourse with a member of the opposite sex by forcible compulsion or when the opposite sex is incapable of giving consent or by reason of the ages of the parties.”[xxiii] The subsequent comments to the Alabama Code explain the language of the statutes and show an interest in continuing to define rape as “the unlawful carnal knowledge of a woman forcibly and without her consent.”[xxiv] However, what exactly these sex crime laws require in order to establish each element may not be so cut and dry. Unlike most other criminal laws, the complex nature of the crime of rape continues to puzzle people. The variability in the terminology and required elements of sex crimes may be to blame for the substantial gap between the legal definition and the general understandings of researchers or lay people about what behavior is covered by a certain sex crime.[xxv] Thus, it is pertinent to look not only at codified laws, but to delve deeper into an individual state’s case law when trying to decipher whether conduct is covered by a certain sex crime law. Meanwhile, Megan Rondini’s story continues to provoke conversation concerning the various (and inconsistent) sex crime laws throughout the United States. Could it be time for the Model Penal Code to push for consistency?[xxvi]


[i] Erin Price, Comment, The Model Penal Code’s New Approach to Rape and Intoxication, 48 U. Pac. L. Rev. 423, 423 (2017) (quoting David Lisak, et al., False Allegations of Sexual Assault: An Analysis of Ten Years of Reported Cases, 16 Violence Against Women 1318 (2010)).

[ii] Katie J.M. Baker, How Accusing A Powerful Man of Rape Drove A College Student To Suicide, BuzzFeed News, https://www.buzzfeed.com/katiejmbaker/how-accusing-a-powerful-man-of-rape-drove-a-college-student?utm_term=.hoyw78ARBJ#.bmExnQaXOq (posted on June 22, 2017).

[iii] Complaint at 1, Rondini v. Bunn, (temporary No. 7:17-CV-01114), filed, (July 2, 2017).  

[iv] Id. at 5.

[v] Baker, supra note 3.

[vi] Complaint at 6, Rondini v. Bunn, (temporary No. 7:17-CV-01114).

[vii] Id.

[viii] Id.

[ix] Id.

[x] Complaint at 6, Rondini v. Bunn (temporary No. 7:17-CV-01114).

[xi] Id. at 7-8.

[xii] Id. at 11.

[xiii] Id. at 15.

[xiv] Complaint at 10, Rondini v. Bunn, (temporary No. 7:17-CV-01114) (emphasis added).

[xv] Baker, supra note 3.

[xvi] Complaint at 12, Rondini v. Bunn (temporary No. 7:17-CV-01114).

[xvii] See Baker, (detailing Megan Rondini’s story concerning the rape and aftermath). 

[xviii] Id. (stating that Alabama rape law requires victims to “earnestly resist” their attackers).

[xix] Carol E. Tracy, et al., Rape and Sexual Assault in the Legal System, (2013), available at http://jpp.whs.mil/Public/docs/04-Meetings/sub-20150507/03_Rape_SexAsslt_LegalSystem_WLP_AEQuitas_20120605.pdf (explaining that, historically, rape began as a property crime, not as a crime against a person, and that the issue of how much force is required continues to change).

[xx] Id. at 1.

[xxi] Id. at 2.

[xxii] Ala. Code §§ 13A-6-61 to -62 (1975).

[xxiii] Victoria Ferreira, Rape, Criminal Offenses and Defenses in Alabama § R10 (3d ed.) (last updated June 2017).

[xxiv] Id. (quoting Owens v. State, 191 So. 899 (Ala. Ct. App. 1939)) (emphasis in original).

[xxv] Id.

[xxvi] The Model Penal Code: Sexual Assault and Related Offenses, American Law Institute https://www.ali.org/projects/show/sexual-assault-and-related-offenses/ (discussing how the MPC has made recommendations to add uniformity to rape and sex crime laws and explaining how the proposed amendments would provide definitions for terminology used in defining words used in sex crime laws).