Expanding the Doctrine of Patient Informed Consent to Include Pricing Transparency and Disclosures, Vol. 1, Issue No. 7 (2015)

Health care reform has and remains a very relevant issue for the vast majority of Americans including those patients and consumer advocates seeking to further health-care pricing transparency and disclosure.  In response, a number of state legislatures have passed various statutes, regulations, and other laws, directly mandating that state agencies effectuate uniform patient pricing and health care based consumer disclosure initiatives or policies, including requiring health care companies, physicians, providers, and insurance companies, to make such pricing, cost, and other health care financial and other coverage information available and accessible to patients and consumers of health care.  For a comprehensive listing of such patient pricing and health consumer disclosure laws, see the National Conference of State Legislature’s list here.  

Generally speaking, despite these various federal and state initiatives seeking to further patient pricing and health care consumer based disclosures, there is still significant uncertainty faced by many individuals when seeking health care treatment, medical procedures, or other health care based services.  Additionally, there remains notable price disparities in health care services, where for example, a recent article highlights how treatment for chronic obstructive pulmonary disease disorder (COPD) in one hospital may cost $99,690 dollars, but less than 30 miles away, may only cost $7,044 for the exact same treatment.  Price disparity remains a concern for health care reform, where many experts have opined that health care costs are so high in part because of the significant price disparities among hospitals and physicians.  To assist patients and consumers of health care services, the Centers for Medicare and Medicaid Services (CMS) has set up a database designed “to provide information on services covered by the Medicare Physician Fee Schedule (MPFS) [and] provides more than 10,000 physician services, the associated relative value units, a fee schedule status indicator and various payment policy indicators needed for payment adjustment.”

A consideration that has received less focus, is whether the doctrine of informed consent should be expanded to include patient pricing and health-care consumer based financial disclosures.  Simply put, informed consent is understood as “the process of communication between a patient and physician [including health care provider] that results in the patient’s authorization or agreement to undergo a specific medical intervention.”   Arguably, issues of cost, pricing, insurance coverage, and other financial considerations are just as relevant if not equally important to patients when weighing particular health care treatments, procedures, and decisions.  Still many articulate that seeking health care services or treatment is much different than buying a home or having a car repaired, where you cannot necessarily provide a good faith estimate where complications and certain unknowns may arise or alternatively, where such pricing information may serve as a disincentive for patients to seek the health care they otherwise desperately need.  Regardless, the issue of health-care pricing transparency and disclosure has and remains relevant to the overall health care reform debate.  

About Us

Robert N. Wilkey, Esq. is the Principal Attorney of Wilkey Legal Consultants, LLC (“WLC”) located in Exton, PA, with over a decade of class action, mass tort, and complex civil litigation, including pharmaceuticals, medical devices, and consumer healthcare related matters, and provides FDA regulatory, consulting, and litigation based services to firms in the area and throughout the country.   Mr. Wilkey is involved in various labor reform and whistleblower advocacy related projects involving medical residents for claims and grievances before the Accreditation Council for Graduate Medical Education (ACGME), the effectuation of maximum hour legislation, whistleblower protection and employment based reforms for medical residents and health-care professionals

Mr. Wilkey holds a BA/MPP from Brigham Young University and a JD from the University of Iowa College of Law, and currently provides regulatory, legal, and consultation and litigation services to individuals, corporations, industry, non-profits, school districts, and government entities.

Legal Disclaimer

The information contained in this Website Article is the property and copyright of WLC and no part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or information storage and retrieval system, without permission in writing from WLC.  The information contained in this Website Article, is provided for informational purposes only, and should not be construed as legal advice on any subject matter. The forms, documents, statements and opinions expressed therein, and links within this site, must not be construed as a substitute for legal advice, nor is it intended to be legal advice.

Use of this Website Article, or contact through this Website Article, is not intended to create, and does not create an attorney-client relationship. No recipients of content from this site, clients or otherwise, should act or refrain from acting on the basis of any content included in the site without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from an attorney licensed in the recipient’s state. You are urged to seek competent legal advice in the specific state in which you live and in the appropriate area of law to answer your needs.

Another Day, Different Party: The EPA Taking to Task VW by way of the Clean Air Act (“CAA”), 42 U.S.C. §7401 et seq.

Vol. 1, Issue No. 6 (2015)

Another Day, Different Party: The EPA Taking to Task VW by way of the

Clean Air Act (“CAA”), 42 U.S.C. §7401 et seq.

Yesterday, the U.S. Environmental Protection Agency (EPA) issued its Second Notice of Violation (NOV) to Volkswagen AG, Audi AG, Porsche AG, Volkswagen Group of America, Inc., and Porsche Cars North America, Inc., setting forth in pertinent part that, “the EPA has determined that VW manufactured and installed defeat devices in certain model year 2014 – 2016 diesel light duty vehicles equipped with 3.0 liter engines [wherein] these defeat devices bypass, defeat, or render inoperative elements of the vehicles’ emission control system that exist to comply with CAA emission standards.”  The collection of relevant EPA NOVs, history and press release can be located here.  As many outlets are reporting, VW is publicly denying the EPA’s contentions in its latest NOV.    

Although the EPA cites a litany of statutory regulations, standards, and other environmental based guidance, the gist of the EPA’s issuance of this latest NOV is largely based upon the Clean Air Act’s very specific and explicit prohibition that makes it a violation to “for any person to manufacture or sell, an offer to sell, or install, any part or component intended for use with, or as part of, any motor vehicle or motor vehicle engine, where a principal effect of that part or component is to bypass, defeat, or render inoperative any device or element of design installed on or in a motor vehicle or motor vehicle engine in compliance with regulations under this subchapter, and where the person knows or should know that such part or component is being offered for sale or installed for such use or put to such use.” See CAA § 203(a)(3)(B), 42 U.S.C. § 7522(a)(3)(B); 40 C.F.R. § 86.1854-12(a)(3)(iii).  

What may or may not be known to VW or other interested parties for that matter, is that the EPA for decades, has been using such relevant language in the CAA as the primary basis to assert regulatory enforcement actions against automobile manufacturers, dealerships, and distributorships, for purposes of seeking to impose civil penalties, fines, and compliance.  See e.g. Jerome Ostrov, Inspection and Maintenance of Automotive Pollution Controls: A Decade Long Struggle Among Congress, EPA, and the States, 8 Harv. Envtl. L. Rev. 139 (1984).  In the case of United States v. Haney Chevrolet, Inc., 371 F. Supp. 381 (M.D. Fl. 1974), the EPA sought an enforcement action and civil penalties against an automobile dealer for very similar allegations in the VW matter, where the defendant company had removed “the original carburetor and its accompanying idle speed solenoid from that Corvette and replacing the carburetor without replacing the idle speed solenoid and knowingly rendering inoperative the transmission controlled spark system on the Corvette [wherein] each of these devices or systems is alleged to be an emission control device or element of design which was installed on the Corvette by the manufacturer in compliance with the regulations promulgated by the Administrator of the Environmental Protection Agency pursuant to Title II of the Clean Air Act.”  Id. at 383.  Additionally, in the case of United States v. Mac’s Muffler Shop, Inc., 1986 U.S. Dist. LEXIS 18108, 25 ERC (BNA) 1369 (N.D. GA. 1986), the EPA filed a civil enforcement action against a muffler shop and the owner, alleging that they removed catalytic converters from motor vehicles, constituting various violations of the CAA.  

The recent NOV issued by the EPA is nothing new, rather involves the expected type of regulatory, compliance and civil enforcement based measures the agency has been actively engaged in for quite some time, albeit on a significantly much larger and grandeur scale in the case of VW.

About Us

Robert N. Wilkey, Esq. is the Principal Attorney of Wilkey Legal Consultants, LLC (“WLC”) located in Exton, PA, with over a decade of class action, mass tort, and complex civil litigation, including environmental legal regulatory, administrative, and compliance work, including the representation of Plaintiff landowners against coal fired power plants and natural gas drilling companies, specifically involving issues related to fly-ash exposure, air and groundwater contamination, environmental personal injury based claims, economic property diminution and loss of use and enjoyment claims, remediation, fracking, medical monitoring, citizen suits, and other contamination and environmental related claims.

Mr. Wilkey holds a BA/MPP from Brigham Young University and a JD from the University of Iowa College of Law, and currently provides regulatory, legal, and consultation and litigation services to individuals, corporations, industry, non-profits, school districts, and government entities.

Legal Disclaimer

The information contained in this Website Article is the property and copyright of WLC and no part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or information storage and retrieval system, without permission in writing from WLC.  The information contained in this Website Article, is provided for informational purposes only, and should not be construed as legal advice on any subject matter. The forms, documents, statements and opinions expressed therein, and links within this site, must not be construed as a substitute for legal advice, nor is it intended to be legal advice.

Use of this Website Article, or contact through this Website Article, is not intended to create, and does not create an attorney-client relationship. No recipients of content from this site, clients or otherwise, should act or refrain from acting on the basis of any content included in the site without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from an attorney licensed in the recipient’s state. You are urged to seek competent legal advice in the specific state in which you live and in the appropriate area of law to answer your needs.

Robert N. Wilkey, Esq., MPP
Wilkey Legal Consultants, LLC
Eagleview Office Plaza
600 Eagleview Blvd., Suite 300, Exton, PA 19341

http://www.robertwilkey.com

Toll Free Number: (888) 598-1112
Local Number: (610) 465-7393
Facsimile: (484) 698-7961

For General Inquiries Email us at: info@robertwilkey.com

When a Financial Professional’s Insistence on “Holding” Constitutes a Breach of Fiduciary Duties

The WorldCom financial collapse and accounting scandal in the early 2000s is still very fresh in minds of retail and “mom and pop” investors, especially where the telecommunications market at this time was heavily marketed, advertised, and otherwise promoted by many financial professionals as a very stable, consistent, and reliable industry, by which to invest and otherwise obtain capital gains.  Approximately three years before its monumental collapse, WorldCom was trading at $64.50 a share, and had approximately $175 billion in investor holdings, comprising mutual and index funds, pensions, and employee retirement accounts.  What was initially unknown at the time to the vast majority of retail investors, including retirees, senior citizens, and to your average investor was that WorldCom had overstated “a key measure of earnings by more than $3.8 billion over five quarters, dating back to January 2001 [and] the company’s reported profits, it turned out, were really losses.”  When such information began to publicly come to light, the financial implications were precipitous, and by June 26, 2002, the U.S. Securities and Exchange Commission (SEC) had charged the company with a “massive accounting fraud” but then, the damage was too late and by July of 2002, shares of WorldCom were trading for just $.83 cents a share.  

Despite the fact that there was a wealth of publicly available information regarding the pending collapse of WorldCom, many investors opted to continue to hold the company’s stock, some largely on their financial professionals continued insistent (often by default) and strong advice to continue “holding” the stock, whether it was owned directly or alternatively, whether it constituted a large holding of a particular held mutual or index fund.  Many financial professionals on behalf of their client, opted to do absolutely nothing, whether it be actively advising their clients to sell their holdings, or making their clients (at a minimum) aware of the magnitude or level of exposure they were facing, even after June 26, 2002, when it was abundantly clear that the company’s demise was imminent, leaving the financial knowledge and guidance (to which they were retained) solely to the whims of individual investor under the common disclaimer that, “futures, stocks and options trading involves substantial risk of loss and is not suitable for every investor….”

Understanding that every financial situation, including the WorldCom situation is different, the thing that remains consistent throughout is that financial professionals, whether brokers, financial planners, or otherwise, are agents of the client, and pursuant to the common law of agency law, and where applicable both state and federal law, the financial professional or financial “adviser is a fiduciary who will be subject to liability for any breach of his fiduciary duties to the client.”  Put another way, such relationship between investors and financial professionals, even among financial planners imputes a duty of care owed to the individual investors, regardless of the investor’s level of investment experience or knowledge, which includes duties of loyalty, good faith, and an application of reasonableness or prudence standards.  Such duty of care is often understood as to what a reasonable or prudent financial professional in the industry would have done under the facts and circumstances of a particular case, which may or may not include actively advising clients of the situation, informing them of their scope and exposure, and certainly providing clients the ability to make informed choices regarding their respective financial investments. Inaction or simply advising investment clients to simply “hold” does not necessarily meet a financial professional’s fiduciary responsibilities, and in the WorldCom situation, likely constituted breach of such duties.

About Us

Robert N. Wilkey, Esq. is the Principal Attorney of Wilkey Legal Consultants, LLC (“WLC”) located in Exton, PA, with over a decade of class action, mass tort, and complex civil commercial litigation experience, including claims involving Federal and State laws involving unfair trade practices and consumer protection; banking and lending standards, credit services and truth in lending regulations, breach of good faith and dealing claims, and breach of fiduciary duties.

Mr. Wilkey holds a BA/MPP from Brigham Young University and a JD from the University of Iowa College of Law, and currently provides regulatory, legal, and consultation and litigation services to individuals, corporations, industry, non-profits, school districts, and government entities.

Legal Disclaimer

The information contained in this Website Article is the property and copyright of WLC and no part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or information storage and retrieval system, without permission in writing from WLC.  The information contained in this Website Article, is provided for informational purposes only, and should not be construed as legal advice on any subject matter. The forms, documents, statements and opinions expressed therein, and links within this site, must not be construed as a substitute for legal advice, nor is it intended to be legal advice.

Use of this Website Article, or contact through this Website Article, is not intended to create, and does not create an attorney-client relationship. No recipients of content from this site, clients or otherwise, should act or refrain from acting on the basis of any content included in the site without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from an attorney licensed in the recipient’s state. You are urged to seek competent legal advice in the specific state in which you live and in the appropriate area of law to answer your needs.

Robert N. Wilkey, Esq., MPP, Wilkey Legal Consultants, LLC
Eagleview Office Plaza 600 Eagleview Blvd., Suite 300, Exton, PA 19341

http://www.robertwilkey.com

Toll Free Number: (888) 598-1112
Local Number: (610) 465-7393
Facsimile: (484) 698-7961

For General Inquiries Email us at: info@robertwilkey.com

The Yelp Quandary for Physicians: Maintaining HIPAA and Rebutting False or Inaccurate Patient Reviews

A number of recent articles and reports have highlighted how the very well-known review website Yelp, has now become the primary source for online physician reviews.  In fact, as of 2015, there were approximately 300,000 reviews of physicians on Yelp, the vast majority occurring during the course of the past two years.  

From a consumer and patient perspective, Yelp serves an important purpose, but with respect to physicians and the maintenance of their online presence, practice reputation and good-will of their business practice groups, hospitals, and other health care providers, the onset of Yelp as a medium by which to post, review, and otherwise obtain online physician reviews puts such health care professionals and health care entities at odds with the Health Insurance Portability and Accountability Act of 1996 (HIPAA), 42 U.S.C. § 300gg and 29 U.S.C § 1181 et. seq. and 42 USC 1320d et. seq.  HIPAA is the foremost privacy law relating to the privacy and confidentiality of patient’s medical information, where the primary goal “of the Privacy Rule is to assure that individuals’ health information is properly protected while allowing the flow of health information needed to provide and promote high quality health care and to protect the public’s health and well being.”  

In instances where a patient or consumer of health care services posts a false or inaccurate review, physicians are faced with a number of ethical, professional responsibility, and other practice dilemmas where either advising Yelp of the basis of such false or inaccurate reviews by a patient, or publicly seeking to rebut or otherwise respond to such reviews, could constitute a violation of the relevant HIPAA provisions subjecting physicians to significant fines, penalties, and liabilities.  In fact, Yelp’s own policies, guidelines, and procedures, require that businesses experiencing a false or defamatory review, to not only report it, but to also “include any information that our moderators can independently verify”  and “business owners should also feel free to use their business accounts to publicly or privately respond to any inaccuracies in the review.”  As such, it is apparent that Yelp needs to modify its practices and procedures with respect to physician reviews, possibly allowing for an internal dispute review process that balances the interests of consumers and patients, while allowing physicians and health care providers the ability to adequately maintain their independent HIPAA duties and obligations.

About Us

Mr. Wilkey holds a BA/MPP from Brigham Young University and a JD from the University of Iowa College of Law, and has over a decade of experience with class action, mass tort, and complex civil litigation.  Mr. Wilkey is a strong advocate for labor and employment rights of medical residents, including providing employment based support to medical residents for claims and grievances before the Accreditation Council for Graduate Medical Education (ACGME), the effectuation of maximum hour legislation, whistleblower protection and employment based reforms for medical residents and health-care professionals

Legal Disclaimer

The information contained in this Website Article is the property and copyright of WLC and no part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or information storage and retrieval system, without permission in writing from WLC.  The information contained in this Website Article, is provided for informational purposes only, and should not be construed as legal advice on any subject matter. The forms, documents, statements and opinions expressed therein, and links within this site, must not be construed as a substitute for legal advice, nor is it intended to be legal advice.

Use of this Website Article, or contact through this Website Article, is not intended to create, and does not create an attorney-client relationship. No recipients of content from this site, clients or otherwise, should act or refrain from acting on the basis of any content included in the site without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from an attorney licensed in the recipient’s state. You are urged to seek competent legal advice in the specific state in which you live and in the appropriate area of law to answer your needs.

Robert N. Wilkey, Esq., MPP
Wilkey Legal Consultants, LLC
Eagleview Office Plaza
600 Eagleview Blvd., Suite 300
Exton, PA 19341
http://www.robertwilkey.com
Toll Free Number: (888) 598-1112
Local Number: (610) 465-7393
Facsimile: (484) 698-7961

For General Inquiries Email us at: info@robertwilkey.com

Ethnic Capital: When Targeted Predatory Lending Goes Too Far

Recently there has been a number of notable articles discussing the role of “ethnic capital” in many minority groups, especially among Asian-Americans, where economists such as George J. Borjas, eloquently describes such concept as “the extent to which ethnic skill differentials are transmitted across generations….”  The role of so-called ethnic capital is often attributed to the economic vitality and success of particular areas in the United States, such as Koreatown in Los Angeles, Little Saigon in Orange County, and various Chinatowns, now prevalent throughout the country.  Ethnic capital according to many economists is the basis for the Vietnamese community’s success with respect to nail salons, the Korean community based dry-cleaning businesses, and to some extent, the all you can eat, Chinese buffet.  

Since the recession of 2008 and the demise of the housing market, many Asian American businesses have and continue to suffer from access to working capital, loans, and other financial based resources by which to maintain and otherwise economically develop their particular industry or business.  Such capital vacuum has lent itself to a number of both legitimate and illegitimate financial, banking, lending, and loan based companies setting up shop in many of these communities, specifically targeting particular Asian-based industries or ethnic groups, largely based upon around the various social, cultural, and economic values commonly held as part of the communities ethnic capital.

As a consequence, many Asian-American businesses find themselves subjected to seemingly shadow or fringe banking lending organizations, that specifically target, market, advertise (often directly in such ethnic groups native language), and otherwise seek financial lending opportunities where there is a lack of proper financial disclosures, varying and floating interest rates, exorbitant fees and startup costs, liens placed on real property (including primary residences), and unfettered access to current and future receivables.

The primary goal for such financial or banking organizations is not to lend in the best interests of the company seeking financing or to necessarily further the company’s business objectives, but, rather to exploit the company in order to maximize its profits while disregarding relevant State and Federal banking, loan, lending, and finance based laws.  It is in these situations where predatory lending by such financial institutions intentionally applies ethnic capital in a very subversive, adverse, and detrimental way, that in the long-run, substantially harms as opposed to benefits such communities.

Robert N. Wilkey, Esq. is the Principal Attorney of Wilkey Legal Consultants, LLC (“WLC”) located in Exton, PA, with over a decade of class action, mass tort, and complex civil commercial litigation experience, including claims involving Federal and State laws involving unfair trade practices and consumer protection; banking and lending standards, credit services and truth in lending regulations, breach of good faith and dealing claims, and breach of fiduciary duties.  Mr. Wilkey is an advocate for Asian-American based domestic and international issues.

About Us

Mr. Wilkey holds a BA/MPP from Brigham Young University and a JD from the University of Iowa College of Law, and currently provides regulatory, legal, and consultation and litigation services to individuals, corporations, industry, non-profits, school districts, and government entities.

Legal Disclaimer

The information contained in this Website Article is the property and copyright of WLC and no part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or information storage and retrieval system, without permission in writing from WLC.  The information contained in this Website Article, is provided for informational purposes only, and should not be construed as legal advice on any subject matter. The forms, documents, statements and opinions expressed therein, and links within this site, must not be construed as a substitute for legal advice, nor is it intended to be legal advice.

Use of this Website Article, or contact through this Website Article, is not intended to create, and does not create an attorney-client relationship. No recipients of content from this site, clients or otherwise, should act or refrain from acting on the basis of any content included in the site without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from an attorney licensed in the recipient’s state. You are urged to seek competent legal advice in the specific state in which you live and in the appropriate area of law to answer your needs.

What Natural Gas Drilling Companies Don’t Want Property Owners to Know: The Significance of Pre-Drilling Water Testing

As property owners throughout the country, especially those in rural areas that are completely dependent upon well water as their primary source of fresh potable drinking water, are increasingly encountering natural gas drilling or more commonly referred to as hydraulic fracking activities near their property, the often recurring question remains as to whether such drilling activities have or may have the potential to adversely harm their well-water, aquifers, streams, lakes, ground-water, or other sources of fresh water.

The modern day tragedy in many of these situations is that the property owner may have purchased such land years or even decades ago, and at the time of purchase, never even considered the importance of conducting substantive and measurable water quality testing prior to drilling their family well.  As a result, years later, when such property owner discovers that their well water may have been potentially contaminated by natural gas drilling or fracking related activities, they have no accurate water quality baseline by which to scientifically measure, gauge, or otherwise accurately determine the extent or scope of such water contamination.  In fact, many natural gas drilling companies will seize upon such omission or failure in seeking to deny liability or alternatively, will argue that there is a natural forming baseline or natural exposure of certain minerals or chemicals in well water that cannot in any causal way be attributed to the company’s drilling or fracking related activities.  To rebut such industry arguments, many States now, through their respective Departments of Environmental Protection (DEP) now require many natural gas drilling companies to conduct pre-drilling and baseline related water quality testing.  Here is a link to many State regulations regarding mandatory pre-drilling and baseline requirements.  

The challenge for property owners with respect to such State pre-drilling and baseline requirements, is that they are generally conducted exclusively and under the control by the company themselves, including selection of the industry based water testing company and labs that may evaluate and analyze the results, and as such, it is often highly questionable as to whether such industry based testing is objective and bias free.  

In short, the most reliable, certain, and accurate means by which a property owner can insure their property interests are preserved, is at the outset of purchasing property or drilling a water well, conducting their own independent pre-drilling water quality testing, using widely accepted water quality methods and testing sources.

For a more thorough discussion as to the legal significance of pre-drilling water quality testing, see the American Bar Association’s February 15, 2015 article entitled, “Fracking Debate: The Importance of Pre-Drill Water-Quality Testing.” 

About Us

Robert N. Wilkey, Esq. is the Principal Attorney of Wilkey Legal Consultants, LLC (“WLC”) located in Exton, PA, with over a decade of class action, mass tort, and complex civil litigation experience, including environmental and regulatory issues involving property owners adversely harmed by natural gas drilling or fracking related activities.  Mr. WIlkey holds a BA/MPP from Brigham Young University and a JD from the University of Iowa College of Law, and currently provides regulatory, legal, and consultation and litigation services to individuals, corporations, industry, non-profits, school districts, and government entities.  

Legal Disclaimer

The information contained in this Website Article is the property and copyright of WLC and no part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or information storage and retrieval system, without permission in writing from WLC.  The information contained in this Website Article, is provided for informational purposes only, and should not be construed as legal advice on any subject matter. The forms, documents, statements and opinions expressed therein, and links within this site, must not be construed as a substitute for legal advice, nor is it intended to be legal advice.

Use of this Website Article, or contact through this Website Article, is not intended to create, and does not create an attorney-client relationship. No recipients of content from this site, clients or otherwise, should act or refrain from acting on the basis of any content included in the site without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from an attorney licensed in the recipient’s state. You are urged to seek competent legal advice in the specific state in which you live and in the appropriate area of law to answer your needs.

Wilkey Legal Consultants, LLC
Eagleview Office Plaza
600 Eagleview Blvd., Suite 300
Exton, PA 19341

http://www.robertwilkey.com

Toll Free Number: (888) 598-1112
Local Number: (610) 465-7393
Facsimile: (484) 698-7961

The Esquith Class Action Against the Los Angeles Unified School District: Class Treatment Not Proper Where Individualized Questions Predominate

There are a number of media outlets reporting a class action filed this week by a teacher named Rafe Esquith on behalf of himself and 2,000 teachers in the Los Angeles Unified School District.  As one paper is reporting, the gist of the class action is based on allegations of the District “employing an ‘investigative hit squad’ to drum up false charges against older, well-paid teachers in an effort to avoid paying their retirement benefits.”  A copy of the intent to file a class action complaint can be located here. The class action lawsuit by Esquith follows an earlier individual lawsuit by this teacher alleging claims for defamation and employment retaliatory conduct against the School District and others.  

Without getting into the substantive merits of Esquith’s legal claims against the Los Angeles Unified School District, it is significant to highlight not only the procedural fallibility of such proposed class action lawsuit, but the absurdity in opting to seek class treatment for such claims, where the proposed class allegations are facially individualized and therefore remain clearly deficient throughout.

The procedural guidelines and jurisprudence regarding class certification is well established, where Fed. R. Civ. Pro. No. 23(a) set forth that, “a class may only be certified if: (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.”  See also Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935 (9th Cir. 2009).   Additionally, under Rule 23(b)(3), a class may be certified if the district court “finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Id. citing to (8 Fed. R. Civ. P. 23(b)(3)).

In Plaintiff’s document entitled “Claim against the Los Angeles Unified School District” and Class Action Claims (pg. 15) dated June 22, 2015, Plaintiffs sets forth nearly 14 pages of individualized allegations, facts, circumstances and/or prohibited conduct, forming the basis of Plaintiff’s legal claims against the School District.  Herein lies the achilles heel for Mr. Esquith’s efforts to seek class certification and treatment for this particular case against the School District, where based on his own assertions and allegations, establishes a clear course of individualized questions of law and facts that are specific to him and him alone.  If Mr. Esquith’s narrative describing facts and allegations against the District are indicative of what other teachers and prospective class members may or may not have experienced, then it is certain that the Court will be hard-pressed to determine that class treatment here is procedurally proper where questions of law or fact common to class members do not predominate, rather it is the questions affecting individuals members that predominates wherein class treatment is not proper in this case.

About Us

Robert N. Wilkey, Esq. is the Principal Attorney of Wilkey Legal Consultants, LLC (“WLC”) located in Exton, PA, with over a decade of class action, mass tort, and complex civil litigation experience.  Mr. WIlkey holds a BA/MPP from Brigham Young University and a JD from the University of Iowa College of Law, and currently provides regulatory, legal, and consultation and litigation services to corporations, industry, non-profits, school districts, and government entities.

Legal Disclaimer

The information contained in this Website Article is the property and copyright of WLC and no part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or information storage and retrieval system, without permission in writing from WLC.  The information contained in this Website Article, is provided for informational purposes only, and should not be construed as legal advice on any subject matter. The forms, documents, statements and opinions expressed therein, and links within this site, must not be construed as a substitute for legal advice, nor is it intended to be legal advice.

Use of this Website Article, or contact through this Website Article, is not intended to create, and does not create an attorney-client relationship. No recipients of content from this site, clients or otherwise, should act or refrain from acting on the basis of any content included in the site without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from an attorney licensed in the recipient’s state. You are urged to seek competent legal advice in the specific state in which you live and in the appropriate area of law to answer your needs.

Wilkey Legal Consultants, LLC
Eagleview Office Plaza
600 Eagleview Blvd., Suite 300
Exton, PA 19341

http://www.robertwilkey.com
Toll Free Number: (888) 598-1112
Local Number: (610) 465-7393
Facsimile: (484) 698-7961

Email: info@robertwilkey.com