Items of Interest
Not long after being nominated by President Trump to serve as the nation's newest Secretary of the US Department of Health & Human Services, The Hultquist Law Firm intends to file suit against Secretary Tom Price, The suit will be filed in the US District Court for the Northern District of Indiana - Hammond Division and will challenge the Secretary's decision to exclude the firm's client from participation in all federal health care programs. According to the administration, a health care worker subject to an exclusion cannot, with extremely limited exceptions, work in any capacity in a US hospital. Kerry Hultquist will argue that the Administration failed to follow its own rules which it promulgated into the federal regulations and will also argue that the administrative review components in which an exclusion may be challenged violates the Due Process Clause of the Constitution's 5th Amendment because the Administrative Law Judges who hear the cases are severely limited in what they can do and because they have sloped the playing field in the administration's favor to such a degree that the process can in no way be considered fair.
If you have any questions or comments, please feel free to leave a comment below, leave your contact info on our "Contact Us" page or drop us a line at Facebook.com/TheHultquistLawFirm
Not long ago, The Hultquist Law Firm, along with co-counsel, Dr. Robert J. Girod, were successful in our efforts to inspect and copy a document the Town Council President of the Town of Andrews, Indiana introduced during a March 2013 Town Council meeting wherein he described the document as "proof of the Town Marshal's insubordination." At the close of the meeting, Town Marshal Juilerat was demoted to Deputy Marshal.
Girod and The Hultquist Law Firm immediately got to work by requesting a copy of the document pursuant to a Town ordinance and a state statute. The Town's attorney refused to provide us with the document we sought. As such, filed a formal Complaint with Indiana's Public Access Counselor who ruled in opinion 13-Inf-39
that the document should have been handed over to us. Despite that firm victory in our favor, the Town and its counsel continued to refuse to provide us with the document. As such, we filed suit in the Huntington Circuit Court. Though it took some time, and there are some other oddities that emerged, in the final analysis, Judge Hakes ruled 100% in the Plaintiff's favor. Next week we will be submitting our Motion for Attorneys Fees and Litigation Expenses, which are specifically awarded if the prevailing party first sought the opinion of the Public Access Counselor but was still unable to copy and inspect the subject document. Of particular note in this case, because the Town and its attorneys and insurers fought hard against the release of the document for a period of almost five (5) years, Plaintiff's attorney's fees will approach, and may even exceed, $100,000.00.
So, if you believe that you are entitled to copy and inspect a public document but some public office or person has refused to provide you with access, contact The Hultquist Law Firm. We can help and have a proven track record of doing so! Drop us a line here, call, or check us out on Facebook.com/TheHultquistLawFirm
By : Dr. Ethan Bickelhaupt, Director of MentalHealth, Parkdale Center, Chesterton, Indiana
In the age of millennials, conceptually standard 9 to 5’s are almost considered archaic thanks to the increasing number of young entrepreneurs, bloggers, tech wizards, budding media moguls and social media (savvy) savants. In today’s workplace, time clocks are almost irrelevant as round-the-clock work is typically standard, almost required, in order to meet the demand of the current competitive marketplace. All of this in an attempt to further meet the demand of massive global consumerism. While seemingly faux pas in its plight, irony has a way of making itself evident in that many of those working such feverish hours are finding enjoyment in it. Part of it may be that in some vocational venues, today’s “office” isn’t much of an office at all. Workers today are given the freedom to work when they want, how they want as long as they meet their deadlines. In one place of employment you might find a gym, full on cafeteria, an arcade, even a daycare, all perks put in place to encourage “creativity” and allow an atmosphere conducive to developing “effective workers”. Sure seems like the ideal job to have, but even when surrounded by such frills and freedom, is there a point where you working a job transitions into a job working you, even while taking pleasure in it?
Rumor has it that within today’s highly competitive workforce lies a group of individuals whose drive and determination, while seemingly noble, have led to the unfortunate, treacherous path of workaholism. Yes, as one of addiction’s many deplorable minions, vocational extremism has been known to rear its ugly head from time to time among those who, for one reason or another, find it necessary to tirelessly put in more hours than is required from their respective place of employment. And while being diligent and dedicated to one’s work is an admirable trait, there is nothing beneficial to being overworked to the point of mental, physical and emotional exhaustion. There is a danger to workaholism that can lead to depression and in some cases contribute to other forms of addiction. It goes without saying, that being a workaholic isn’t limited to those who simply “enjoy what they do”. For many, like those struggling with other addictions, it can be used simply as a way to escape what some may feel is an unhappy life, even if for a brief moment. And like those addicted to other vices, while seemingly beneficial to their immediate needs and desires, a price is being paid that no amount of overtime can match.
According to an article in The Fix
, like drug and alcohol addiction, “work addiction could be a way of escaping from other issues”
and “a new study out of Norway has found that workaholics are more likely than non-workaholics to suffer from anxiety and depression, among other psychiatric disorders.”
Researchers in the article have also found that “Taking work to the extreme may be a sign of deeper psychological or emotional issues.”
Finally, the article cited a study from the British Medical Journal (January 2015) which reported that “
those who work more than 48 hours per week are more likely to drink dangerous amounts of alcohol.” (https://www.thefix.com/workaholics-have-higher-rates-anxiety-and-depression
). These reports suggest that at the very least, there is some merit in trying to determine whether or not one befits the title of a workaholic and that if they find they are one, determine the root cause of the issue so that it may be addressed accordingly. Having the appropriate knowledge can help to quickly obtain the proper response and treatment. And that is something worth working for.
The online mega-retailer, Amazon.com, recently launched a flurry of lawsuits in Washington state court against people who post fraudulent product reviews on Amazon. Companies that list products for sale on these cites will often pay the posters to post gleaming reviews of their products. Amazon's approach, while not an unheard of practice, is adding a new wrinkle to what was already a fairly novel practice. In the past, retailers like Amazon, and, in fact, Amazon itself, sought to reduce the number of fraudulent reviews appearing on their sites by suing the technology companies that helped facilitate the posting of fraudulent reviews. This time around, Amazon is changing tactics. Amazon is directly suing the individuals who actually write and post the reviews. In the recently filed suits, Amazon alleges that individuals would write five-star reviews about products they never even tried, and plotted with product makers to subvert Amazon's safeguards that are meant to bolster confidence in the accuracy and reliability of the website's reviews. Amazon is suing for unspecified damages and an order forcing the users to stop writing fake reviews.
Amazon has expended great resources to thwart the planting of fake reviews - a practice sometimes called "astroturfing," a reference to the synthetic grass used on sports fields. Companies like Amazon employ computer algorithms and teams of investigators who scour reviews and delete suspicious entries. Often, only people who have paid for a product or service and been verified can post reviews. This tactic has has far reaching consequences for the law, in general, and for the law regulating e-commerce and free speech, in particular.
The first issue that struck me when I learned of Amazon's new practice was to question the notion that a corporation could actually alter the freedom of speech guarantees contained in the 1st Amendment to the federal Constitution. Unless you are testifying under oath or giving a statement to a federal law enforcement official (along with some other, limited examples not worthy of discussion here) you have the legal right to lie. (You might recall that a federal court recently held that Fox News is entitled to lie during its broadcasts. The court held that the lies are protected by the Constitution's 1st Amendment guaranteeing the right to freedom of speech. The 1st Amendment provides equal protection (no pun intended) to untruthful statements as it does to truthful statements. While lying via the means of posting untruthful product reviews online, or in other forms or examples, may be questionable from a moral or ethical standpoint, it otherwise has no bearing on a person's Constitutionally protected free speech guarantees found in the 1st Amendment.
So, you might ask yourself or, preferably, your attorney, just how on Earth does Amazon expect to successfully prevail in the lawsuits which were filed in Washington state? If people are legally permitted to lie then what serves as the basis of a valid theory of recovery against the fraudulent posters? There do not appear to be any sort of "tort" or "tort-like" acts or omissions that would give rise to liability on the part of the posters. It is a confusing scenario. The answer, I suspect, is that the posters do have contractual relationships with Amazon, the violation of which could give rise to legitimate claims against the posters for violating Amazon's terms of service. As has been the case since sometime around the drafting of the Magna Carta, parties (both individuals and entities) are generally free to enter into contractual relationships with other individuals or entities that define each parties' rights and responsibilities and govern what occurs should one or both parties breach the terms of the contract. For now, it remains to be seen whether the recent suits filed by Amazon will prove to be valid means for imposing liability on the fraudulent posters and whether other "alternative" theories of recovery against the posters exist, and whether attorneys for other online retailers, like Amazon, can earn their overpaid keep by developing still newer, more novel theories of recovery.
If you have something you would like to add to this story, have questions regarding the types of issues discussed herein or require any other form of legal assistance, services or advice, drop us a line here, or sign up on the "Contact Us" page, email Kerry Hultquist, the firm's Lead Counsel at KMH@TheHultquistLawFirm.com, or check us out on Facebook at Facebook.com/TheHultquistLawFirm. We look forward to hearing from you!
Kerry M. Hultquist, Lead Counsel
The Hultquist Law Firm
An interesting, albeit very one-sided, article about lawsuit financing, written by Joshua Schwadron and published on Mighty.com. I have a great deal of experience representing insurance companies, and their insureds, but I also have a great deal of experience representing plaintiffs. In sum, I have looked at these issues from varying positions, hopefully, lending some credence to my opinions on the matter. The author makes some good points but the bias displayed in the article brings its merit into question. One argument the author advances is that insurers are "professional defendants" with great experience. Of course, plaintiffs can, and almost always do, hire a plaintiff's attorney to skillfully present their cases. Plaintiffs' attorneys are no less experienced than defense attorneys. The author should give more credit to the skills of the plaintiffs' bar. The author seems to contradict himself in this sentence: "Well aware of plaintiffs’ precarious situations, insurance companies often prolong the legal process, waging a war of attrition to get plaintiffs to accept quick, less-than-fair settlements." Are they prolonging litigation or are they trying to achieve a "quick settlement?" Plaintiffs are always free to reject the insurers offers of settlement. When they do so and proceed to trial, it is not the insurer that is delaying things, it is invariably the court. The author also states that these practices amount to a "frivolous defense." Of course insurers try to settle cases for the smallest amount of money that they can, just as plaintiffs seek to maximize the amount of money they receive. That, in no way, makes defending a claim "frivolous." Financing lawsuits is an interesting new addition to litigation and economy. It remains to be seen what impact(s) it will have on the legal system. Here is the original article:
There is a great paradox in our civil justice system. In many cases, the moment a personal injury occurs, the defendant’s problems are entirely over while the plaintiff’s problems are just beginning. Take Kara, who rear-ended the car in front of her after being distracted by her two-year-old in the backseat. Fortunately, her auto insurer will take care of everything: paying for damages, paying for any of her medical bills, and representing her in court if the injured party chooses to sue. Kara will walk away from her mistake without having her life interrupted, much less ruined. Indeed, if the person she hit sues, Kara may never even know.
But plaintiffs — the party who did nothing wrong — do not enjoy comparable protections.
Defendants with good liability insurance are protected from financial catastrophe due to a single mistake, as they should be. However, when liability insurance first appeared in the late 1800s, it was considered
repugnant and dangerous. People believed that abdicating responsibility to a third-party would incentivize recklessness, increase accidents, and distort the legal system by introducing a non-party into the proceedings. Fast forward a century and this free market solution has become so ubiquitous that car insurance is legally required in almost every state.
Now meet Josie, the driver who Kara hit. If Josie is affluent, she might end up okay; if not, she is likely in a far worse situation than Kara. Josie is a one-time player in the legal system, while her adversary, Kara’s insurance company, is a professional defendant. Josie must search for a lawyer, whom she must pay out of pocket or through a large portion of her settlement, while the defense already has a highly experienced team in place. Kara’s car insurance will likely pay for Kara’s medical treatment, if needed, without delay because she was at fault. On the flip side, if Josie requires treatment, her insurance and Kara’s insurance will often play the blame game, refusing to pay for Josie until the suit is completely resolved. While Josie’s bills pile up, the insurance companies’ bills never do.
Well aware of plaintiffs’ precarious situations, insurance companies often prolong the legal process, waging a war of attrition to get plaintiffs to accept quick, less-than-fair settlements. This happens even in the most clear-cut cases. It’s called “frivolous defense,” a phrase you will have heard much less frequently than “frivolous lawsuits,” even though many scholars
believe it is the former that causes our courts to clog, not the latter. And frivolous defense works — it almost always does. It’s a systemic scandal.
The fundamental problem is that defendants enjoy what economists call“monopsony power.”
Monopsony power is just like monopoly power, except that one buyer has all the market power instead of one seller. Essentially, the defendant is the only legally authorized “buyer” of the plaintiff’s liability claim. As Stephen Gillers, one of the most prominent legal ethicists in the United States, explains
“[The defendant] is under no time pressure. It is, furthermore, the only authorized purchaser of [the plaintiff’s] claim, the only one allowed to bid on it. Now it requires no MBA to recognize that if one person is under duress and needs to sell something and another person is the only one legally allowed to buy it, the buyer has an enormous advantage.”
Although fictional, Josie’s story is far more representative of the average plaintiff than the stereotype of the devious plaintiff trying to make a quick buck. Almost every week for the past few months, I’ve had lunch with plaintiffs awaiting justice.
I met Lorraine, who shared with me how her knee was injured in a car accident that was not her fault. Despite her doctor’s orders, Lorraine has delayed surgery for years while waiting for her settlement, unable to afford the childcare that her family needs during recovery.
I met Archie, whose lawyer warned that he will receive less than he deserves from the defendant if he continues missing visits to the doctor. Archie does not always have the few dollars needed to take the subway to his appointments, and Archie’s attorney, like all attorneys, is ethically prohibited from lending him a dime for non-legal expenses.
In the United States, many lawsuits take years to resolve. If a plaintiff is one of the 76 percent
of Americans who are living paycheck to paycheck, those years of waiting may be worse than the accident itself. Many plaintiffs are mired in a prolonged struggle to get over the worst days of their lives. And when their case finally settles, they usually end up with far less than what most people would expect. The worst part is that we have resigned ourselves to these conditions. We know that our legal industry is too big, too slow, and too old to change. But there is a new solution, one that leverages free-market dynamics to restore balance in our civil justice system: plaintiff financing.
Plaintiff financing provides plaintiffs with funds that enable them to live their lives while they wait for fair settlement offers. It’s not a loan; it’s an investment, which yields a return to the investor only if a plaintiff’s case settles or is won.
In the amoral language of finance, when someone is wrongfully harmed, an“asset” is created based on the future compensation they expect to receive from their case settlement. Plaintiffs can then assign part of that future compensation to investors who believe in the merits of their claims. It’s nearly identical to how plaintiffs assign a portion of their cases to contingency attorneys in exchange for legal representation, except plaintiff financing for personal injury cases covers rent, medical bills, and other critical expenses that accumulate after the accident.
For Josie, plaintiff financing is the mirror equivalent of what Kara receives through her liability insurance. Kara bears little-to-no financial risk because her insurance company bears it for her. Without plaintiff financing, Josie must essentially bear all of the costs that have resulted from the aftermath of her injury. Professor Charles Silver at University of Texas Law School argues
that just as liability insurance shifts liability to insurers, plaintiff financing can shift the bulk of a plaintiff’s expenses to investors.
The insurance industry has consistently fought the adoption of plaintiff financing. Just last year, The National Association of Mutual Insurance Companies awarded State Legislature of the Year Awards to three legislators who helped regulate plaintiff financing out of existence in Tennessee. It’s no surprise that insurers feel threatened. Plaintiff financing introduces a threat to their monopsony power: competition. Instead of being stuck with the defendant as the sole buyer, Josie can now access financing that provides valuable liquidity, empowering her to make decisions free from duress. It is simple, but for plaintiffs like Josie, this changes everything. Instead of getting bullied into a cheap settlement by the defendant, she can choose to accept the funds she needs to live from an investor and fight for her claim vigorously. For the first time since her accident, she has real agency.
If plaintiff financing is such a commonsense solution, why is it not more widespread? First, the market is nascent. A handful of early participants have been bad actors and stifled the practice’s growth by engaging in opaque tactics. Second, skeptics claim that plaintiff financing could lead to an increase in frivolous litigation. But in reality, empirical studies
have shown that plaintiff financing does not increase non-meritorious litigation because investors are rational actors who invest only in the cases most likely to win. Finally, plaintiff financing can be rhetorically reduced to the “financing of lawsuits,” a description that is plagued by the ick factor and offends the sensibilities of many.
There was a story
in The New Yorker
earlier this year about Ben Horowitz and Marc Andreessen, two of the most well respected venture capitalists and technology leaders in America. Ben describes the process of considering an Internet pawnshop for investment: “People here said, ‘It’s immoral,’ and Marc went bananas. He said, ‘If you’ve got no fucking money, and you need to pawn your watch to pay for your kids to eat — you think that’s morally fucking wrong because it offends your sensibilities, you rich motherfuckers?’”
I used to be that motherfucker.
I, too, thought that lawsuits were something bad for society. When I first got into the business of plaintiff financing, I considered lawsuits repugnant, and the financing of lawsuits doubly repugnant. Put simply, I was embarrassed, and I disguised what I did to friends, hoping I would not be doing it long enough for anyone to notice.
Today, years later, I’ve never been prouder of anything I’ve ever done. I get out of bed in the morning knowing that we have a real opportunity to fix a systemic injustice for people who cannot afford to wait for actual justice. And I go to bed at night, excited because I know the solution is mighty.
While there will be many obstacles to overcome, I have Marc’s quote above my desk to remind me that changing people’s deep-rooted perceptions about lawsuits might be the most crucial challenge we face. Most lawsuits are brought by plaintiffs like Lorraine and Archie: something bad happened to them, it wasn’t their fault, it derailed their lives, and we have an obligation to help them get justice. Game on.
Joshua Schwadron is CEO and co-founder of Mighty, the world’s first online marketplace connecting plaintiffs awaiting a fair legal settlement with the financing they need to continue living their lives.