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Labor Law TeamOur Congratulations go out to the Pace 2015 American Bar Association Labor Law Trial Advocacy Competition team that won the Regional Round, October 31- November 1 in New York. The team will advance to compete in the National Round in           New Orleans, this January 2016!

The competition was established by the American Bar Association Section of Labor and Employment Law. This year’s competition problem involved a wrongful termination claim under the Family Medical Leave Act.

Brianna Ciuffi (2L), Robert Foster (3L), April McKenzie (2L) and Maureen Schnepf (2L) represented Pace Law School at the competition. The team was under the direction of Coach Sheila Gabay.

During SatuBrianna Labor Law Awardrday’s first round, Pace argued against Fordham Law School. In the second round, Pace argued against Boston University. The team advanced to Sunday’s top 4 rounds, where Brianna and April argued twice against Brooklyn Law and won!April Labor Law Award

The team and coaches were honored to represent Pace Law School, and bring home a first place win over 16 other law schools.

Congratulations to Brianna, Robert, April and Maureen on their performance. We are excited to see them compete against the top 8 teams in the National Round!

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Our Congratulations go out to the Pace 2015 Queens County District Attorney Mock Trial Competition team that advanced to the Semi-Final Round, and placed in the top 6 teams! The team competed October 24-25, at the Queens County Criminal Courthouse in New York.

The competition was sponsored by the Queens County District Attorney’s Office, and is used to scout top talent for the Office. This year’s competition problem involved an alleged homicide and armed robbery of a restaurant.

Michael Chiaramonte (3L), Vittoria Fiorenza (3L), Michael Pesin-Virovets (3L) and Hanna Shoshany (4L) represented Pace Law School at the competition. The team was under the direction of Pace Alumnus, Coach Brian Fitzgerald.

Michael Pesin-Virovets and Vittoria Fiorenza represented the Prosecution, while Hanna Shoshany and Michael Chiaramonte represented the Defense. During Saturday’s first round, the Defense argued against Albany Law School. In the second round, the Prosecution argued against Quinnipiac Law School. The team then advanced to the final 6 remaining teams, out of 14 teams. During Sunday’s advanced round, the Prosecution argued against Fordham Law School.

The team and coaches were honored to represent Pace Law School, and finish as a top 6 team!  

Queen's District Attorney Competition

Congratulations to Michael Chiaramonte, Vittoria Fiorenza, Michael Pesin-Virovets and Hanna Shoshany on their performance!

New York’s Attorney General Eric Schneiderman is investigating allegations that ExxonMobil Corporation, the world’s largest energy company, suppressed evidence its own researchers compiled that linked fossil fuel emissions to climate change, thus misleading the public and shareholders for decades about the perils of climate change.

Schneiderman is utilizing a statute that gives New York state prosecutors broad authority to prosecute securities fraud: The Martin Act. This nearly century–old statute allows the Attorney General to regulate, investigate and take enforcement action against securities fraud, including seeking equitable and monetary remedies. N.Y. Gen Bus. Law §§ 352-c, 353 (McKinney 2012).

The Martin Act has been used over the years to prosecute hedge funds, investment advisers, large-scale Ponzi schemes, and major investment banks accused of misleading investors.

Scienter, reliance, and damages need not be demonstrated. Instead, the only elements required to establish a Martin Act violation are a misrepresentation or omission of material fact where engaged in to induce or promote the issuance, distribution, exchange, sale, negotiation or purchase of securities.

Schneiderman subpoenaed Exxon last week, demanding extensive financial records, emails and other documents to probe the company’s knowledge and disclosures about climate change going back to the 1970s.

Advocacy groups with expertise in financial analysis have been warning that fossil fuel company stock prices may be overvalued, as limiting climate change might require that much coal, oil and gas be left in the ground. In fact, today, coal giant Peabody Energy agreed to disclose climate change and climate-related regulatory risks in its securities filings in response to Schneiderman’s 2013 investigation of Peabody under the Martin Act.

Related reading:

 N.Y. Attorney General Investigates Whether Exxon Mobil Lied On Climate Change, npr.org, November 5, 2015.

Exxon Probe Will Explore Gray Areas of Climate Change, Law 360, November 6, 2015.

Exxon Mobil Investigated for Possible Climate Change Lies by New York Attorney General, N.Y. Times, November 5, 2015.

New York Investigating Whether Exxon Hid What it Knew About Climate Change, L.A. Times, November 5, 2015.

 

The New York Times recently published a three-part series, “Beware the Fine Print,” criticizing the widespread use  of mandatory arbitration and class action waiver clauses in consumer contracts. The authors describe the growth of these contract clauses as “a far-reaching power play orchestrated by American corporations.” A Times editorial asserts that “forced-arbitration clauses, found in the fine print of contracts, also typically bar aggrieved parties from pressing their claims as a group in a class action, often the only practical way for individuals to challenge corporations. In addition, corporations effectively control the arbitration process, including the selection of the arbitrator and the rules of evidence, a stacked deck if ever there was one.”

A recent ABA Journal blog post notes the increasing use of mandatory arbitration clauses, even by religious organizations: “Buying a Bamboo Floor? This Company Requires Religious Arbitration; Courts Uphold Clauses” (Nov. 3, 2015).

The Consumer Financial Protection Bureau released a study in March 2015 finding that the terms of a consumer contract “are not generally open to negotiation by the consumer, but are instead offered on a take it or leave it basis, meaning that the consumer either accepts those terms or instead shops for another product with different standard form terms. In legal terms, the contract is one of adhesion, making the clause ‘mandatory’ in contrast to the voluntary clauses that may be reached by negotiation between commercial parties.” CFPB Arbitration Study, March 2015, at 4 n.4.

The U.S. Supreme Court has consistently held that mandatory arbitration clauses in contracts must be enforced under the Federal Arbitration Act, 9 U.S.C. § 2. The Court ruled in Shearson/American Express, Inc. v. McMahon, 482 U.S. 220  (1987), that investors who had signed agreements to arbitrate all disputes with their stockbrokers were required to submit their claims to binding arbitration rather than pursue them in court. When a 2005 California Supreme Court decision held that an arbitration clause that included a class action waiver in a consumer contract was unconscionable, Discover Bank v. Superior Court, 113 P.3d 1100 (2005), the Supreme Court resoundingly disagreed. In AT&T Mobility, LLC v. Concepcion, 563 U.S. 333 (2011), it ruled that the FAA preempted contrary state rulings such as Discover Bank, “reflecting both a liberal federal policy favoring arbitration, and the fundamental principle that arbitration is a matter of contract. In line with these principles, courts must place arbitration agreements on an equal footing with other contracts, and enforce them according to their terms.” In American Express Co. v. Italian Colors Restaurant, 133 S. Ct. 2304, 186 L. Ed. 2d 417 (2013), the Court went further, ruling that arbitration clauses with class action waivers should be “rigorously enforced” in nearly all cases, even if the costs of individually arbitrating claims exceed the potential recovery: “The antitrust laws do not guarantee an affordable procedural path to the vindication of every claim. . . or evince an intention to preclude a waiver of class action procedure.”

Samuel Gompers said: “Do I believe in arbitration? I do. But not in arbitration between the lion and the lamb, in which the lamb is in the morning found inside the lion. I believe in arbitration between two lions or two lambs. . . There can be arbitration only between equals.” Rocky Mountain News, Feb. 10, 1888.

Additional Reading:

Frances E. Zollers, Alternative Dispute Resolution and Product Liability Reform, 26 Am. Bus. L.J. 479, 484 (1988) (available on Westlaw).
Rita M. Cain, Commercial Disputes and Compulsory Arbitration, 44 Bus. Law. 65 (1988) (available on Westlaw).
Alan S. Kaplinsky et al., 2014 Arbitration Developments-Courts Continue to Apply Concepcion and Italian Colors, 70 Bus. Law. 649 (2015) (available on Westlaw).

 

Congressional Research Service (CRS) reports are a gold mine of information for legal researchers.  Written at the request of members of Congress, these high-quality reports cover a wide range of topics.  Unfortunately, the reports are not available to the members of the public who pay for them.  As explained in an article in Politico, the nonpartisan, unclassified reports are “officially available only to members of Congress and their staff.”  Despite this, they are unofficially circulated to “the administration, lobbyists, reporters, foreign diplomats and other Beltway insiders.”  In addition, private firms sell access to their private collections of CRS reports.  There are unofficial collections made available through Wikileaks, the Federation of American Scientists, and several other organizations.  Some are now accessible through HeinOnline and Bloomberg Law, but there is no official publication.

Legislators have been trying for some time to change the rules and require CRS to release its reports.  Senators Patrick Leahy and John McCain have led the fight in the Senate, but are not currently involved with the issue.  A bill was introduced in the House in January 2015 that would require that the reports be available in a searchable database with indexing.  The sponsors, Representatives Mike Quigley and Leonard Lance, are optimistic that this time around the legislation will be successful.  According to John Byers, Representative Lance’s spokesperson, “No one is really blocking it … It’s more of a function of change is tough.”

Our Congratulations go out to the Pace 2015 In Vino Veritas National Mock Trial Competition team that competed at the Fourth Annual Professor Bernie L. Segal National Mock Trial Competition: In Vino VIn Vinoeritas. The team competed at Golden Gate University in San Francisco, California (October 22-25, 2015). The competition was established by the Golden Gate University Litigation Center. This year’s case file, Karlson v. Justice, involved a dispute between the Plaintiff, Kent Karlson, who filed a claim against the Defendant, Officer Steven Justice, for an unconstitutional arrest violation, conspiracy to violate Plaintiff’s Fourth Amendment Rights and Intentional Infliction of Emotional Distress.

Cassandra Castellano (3L), Paul Cirner (3L), Brianne Cunningham (3L) and Michael Giordano (3L) represented Pace Law School at the competition. They were coached by Pace Law Professors Louis Fasulo and Keith Sullivan.

Cassandra and Paul represented the Defendant, Officer Justice, and Brianne and Michael represented the Plaintiff, Kent Karlson. In the first round, the Defendant’s team argued first against John Marshall School of Law. In the second round, the Plaintiff’s team argued against the University of Texas, where team member Brianne Cunningham received an Excellent Advocate Award for her performance!

The team and coaches were honored to represent Pace Law School in this national competition.

Congratulations to Cassandra, Paul, Brianne and Michael on their performance!

Our Congratulations go to the Pace 2015 Puerto Rican Bar Association Moot Court team that placed first overall at the finals of the Fourth Annual National Puerto Rican Bar Association (PRBA FinalsPRBA) Moot Court Competition.  The team placed second in the Northeast Regional and advanced to the finals that took place in Orlando, Florida. A special congratulations goes out to Angelica Cancel (2L) for receiving the Best Oral Advocate Award of the Northwest Regional competition. The competition was established by the Puerto Rican Bar Association of Florida, New York, Illinois and Puerto Rico. This year’s competition problem involved the constitutionality of the Recovery Act-legislation meant to address the debt crisis in Puerto Rico. Angelica Cancel (2L), Jordan Montoya (2L) and Richard Roman (2L) represented Pace Law School at the competition. Angelica, Jordan and Richard represented both the Petitioner, Commonwealth of Puerto Rico and Respondent, Mr. Enrique Guerra Pujol in the competition. The team was coached by the Honorable Judge Sharon Aarons.

In the first roPRBA 11_2015und, Pace faced off against Northwestern Law School (Team #1). Pace advanced to the second round along with Northwestern Law School (Team #2).

The team and coach were honored to represent Pace Law School in this competition and bring home the first place trophy!

Congratulations to Angelica, Jordan and Richard on a great performance!

Our Congratulations go to the Pace 2015 Securities Dispute Resolution Triathlon team that won the award for Excellence in Negotiation at the Seventh Annual Securities Dispute ResoSDRT 2015lution Triathlon Competition (October 17-18, 2015).  The team competed at St. John’s Law School in Queens, New York. The competition was established by Hugh L. Carey Center for Dispute Resolution and the Financial Industry Regulatory Authority (FINRA). This year’s competition problem involved a dispute arising between broker and regional manager over a repayment of a promissory note given as an incentive to join a brokerage firm. Meredith Gabay (3L), Steven Lapkoff (3L), and Michael Liik (2L) represented Pace Law School at the competition. The team represented the Claimant, Trajectory-Level in the competition. They were coached by Pace Law Professor Elissa Germaine.

SDRT 2 2015The first round was negotiation and Pace competed against American Law School. Pace prevailed and received the award for Excellence in Negotiation by beating out twenty three other law schools. The second round was the mediation and Pace competed against Pittsburgh Law School. The final round was arbitration and Pace competed against Brooklyn Law School.

The team and coach were honored to represent Pace Law School in this competition.

Congratulations to Meredith, Steven, and Michael on a great performance!

Our Congratulations go to the Pace 2015 Puerto Rican Bar Association Moot Court team that placed second overall at the Northeast Regional of the Fourth Annual National PuertPRBA Team 2 2015o Rican Bar Association (PRBA) Moot Court Competition.  The team competed in the Northeast Regional along with other New York Law schools in Bronx, New York. The competition was established by the Puerto Rican Bar Association of Florida, New York, Illinois and Puerto Rico. This year’s regional competition problem involved the constitutionality of the Recovery Act-legislation meant to address the debt crisis in Puerto Rico. Angelica Cancel (2L), Jordan Montoya (2L) and Richard Roman (2L) represented Pace Law School at the competition. Angelica, Jordan and Richard represented both the Petitioner, Commonwealth of Puerto Rico and Respondent, Mr. Enrique Guerra Pujol in the competition. The team was coached by the Honorable Judge Sharon Aarons.

In the first round, Pace faced off against St. John’s Law School. Pace advanced to the second round along with Touro Law School. A special congratulation goes out to Angelica Cancel (2L) for receiving the Best Oral Advocate Award of the competition.

The team and coach were honored to represent Pace Law School in this competition and look forward to representing the school again in the final round. The final round will be held in Orlando, Florida over the weekend of October 30, 2015.

Congratulations to Angelica, Jordan and Richard on a great performance!

PRBA Team 2015

The New York Court of Appeals is seeking comments on a proposed skills requirement for prospective lawyers.  The Task Force on Experiential Learning and Admission to the Bar has proposed five separate paths that will allow applicants for admission to the bar to demonstrate that they have fulfilled the skills competency requirement. Pathways 1 and 2 require certification by the law school that the applicant has fulfilled the requirement through the law school skills curriculum or practice-based experiential coursework. Pathway 3 allows applicants who have successfully completed the Pro Bono Scholars Program to satisfy the skills requirement. Pathways 4 and 5 were designed for applicants who did not have plentiful opportunities for skills training during their law study.

Persons or organizations wishing to comment on this proposal should e-mail their submissions to attorneyadmissions@nycourts.gov or write to: Margaret Wood, Court Attorney for Professional Matters, Court of Appeals Hall, 20 Eagle Street, Albany, NY 12207. Submissions will be accepted until 5 p.m. on November 9, 2015. All public comments will be treated as available for disclosure under the Freedom of Information Law, and are subject to publication by the Office of Court Administration. The issuance of a proposal for public comment should not be interpreted as an endorsement of that proposal by the Court of Appeals.

Related readings

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