Missouri On Track to Reform Interpleader Law: House Bill 1531 Unanimously Approved by the Senate

Laura Gerdes Long

By Laura Gerdes Long



co-authored by Laura Gerdes Long and Katherine M. Flett

As he was leaving office, Missouri Governor Eric Greitens signed at least 77 bills into law, including House Bill 1531, which may protect insurance carriers subjected to purported bad faith claims.

“Interpleader” is a civil procedure vehicle used to force claimants to litigate a dispute involving two or more claims to a limited amount of money held by a third party, such as an insurance carrier.  A common example is when multiple people are injured in a car accident and the injuries exceed the amount covered by the tortfeasor’s policy limits.  What should the insurance carrier do?

Under the prior law, codified at Section 507.060 RSMo, the tortfeasor’s insurer could interplead the policy limits, but the insurer would remain subject to a purported bad faith claim.  This would put insurers in an impossible situation, choosing between paying claims on a first-come, first-serve basis to avoid time-based bad faith claims, paying the limits on the most seriously injured claim, or gathering all of the claimants’ documentation supporting their injuries or damages in an attempt to globally resolve all claims within the policy limits, and reducing the insured’s exposure to excess claims.

Continue reading »

An Oral Agreement Is Not Worth the Paper It’s Printed On

A. Thomas DeWoskin

By A. Thomas DeWoskin



On June 4, 2018, the U.S. Supreme Court held that an individual’s false oral statement about his assets would not support a finding of fraud under the relevant provision of the U.S. Bankruptcy Code. That provision required the false statement to be in writing if it were to serve as the basis of a fraud claim. (Lamar Archer & Cofrin LLP v. R. Scott Appling, Case Number 16-1215, 584 U.S. ___ (2018), issued on June 4, 2018.)

In this case, Mr. Appling hired a law firm to represent him in some litigation. When he had fallen behind on his legal bill to the extent of some $60,000, the firm threatened to withdraw from the case. He told the firm that he was expecting a tax refund of about $100,000 which would cover that bill and all future fees. Relying on Mr. Appling’s assertion, the law firm continued with the representation.

As you probably have concluded by know, there was no $100,000 refund. It was only $60,000, and Mr. Appling invested it in his business rather than paying his attorneys. Worse, when his attorneys subsequently asked about the refund, Mr. Appling lied and told him that he hadn’t received the refund yet. Continue reading »

Update on the EEOC and the Prohibition of Sexual Orientation and Gender Identity Discrimination

Laura Gerdes Long

By Laura Gerdes Long



In an article in the inaugural issue of DMPC’s Employment News You Can Use, EEOC: Discrimination Based on Sexual Orientation and Gender Identity is Prohibited, we discussed the state of the current contradictory precedent out of the Missouri Courts of Appeals.

As of the date of this post, the uncertainty of whether employment decisions based on sexual orientation are prohibited remains; however, limited movement was made by the Western District’s Court of Appeals when it reversed a summary judgment ruling in Lampley v. Missouri Commission on Human Rights.

Harold Lampley alleged his employer, the State of Missouri, Department of Social Services Child Support Enforcement Division, discriminated against him based on sex because his behavior and appearance contradicted the stereotypes of males held by his employer and managers. Lampley argued that because he did not conform to the stereotype of males, his employer treated him differently from other employees who conformed with gender stereotypes. Lampley postured his sex discrimination case as supported by evidence of sex stereotyping. It is important to note that Lampley brought his lawsuit against his employer for sex discrimination, not discrimination based on sexual orientation. Continue reading »

Salaries Speak Louder than Words: The Ninth Circuit Holds that Prior Salary Cannot Justify Wage Disparities

Katherine M. Flett

By Katherine M. Flett



In April 2018, the Ninth Circuit Court of Appeals held in Rizo v. Yovino that an employee’s pay history is not a legal justification for a wage disparity under the Equal Pay Act.

The Equal Pay Act (the “Act”) stands for a principle as simple as its title: men and women should receive equal pay for equal work, regardless of sex.  While sex-based wage discrimination has been prohibited under the Act for over fifty years, the pay gap between men and women continues to be a disconcerting reality in our society.

The Act provides that an employer may justify wage disparities if it is able to prove that it relied not on sex, but on one of the following exceptions: (i) a seniority system; (ii) a merit system; (iii) a system that measures earnings by quantity or quality of production; or (iv) a differential based on “any factor other than sex.” It is the last “catch-all” exception that was the subject of Rizo v. Yovino. Continue reading »

The EEOC Catches the Flu: A Cautionary Tale for Employers With Mandatory Flu Vaccination Programs

Katherine M. Flett

By Katherine M. Flett



After enduring one of the worst flu seasons in nearly a decade, there is no question why more employers are instituting mandatory flu vaccination programs. In fact, mandatory flu vaccination programs are increasingly popular for healthcare employees.

No current laws in Missouri or Illinois mandate all health care employees to be vaccinated against the flu. That being said, nursing home employers in Missouri are required to either offer the flu shot to all employees and volunteers who have direct contact with residents, or provide the employees and volunteers with information about how they can obtain the flu shot independently. Similarly, health care employers in Illinois are required to provide all employees with education on influenza, as well as the opportunity to receive the vaccine. Some states, such as California and Maryland, require hospitals to publish their employee vaccination rates to the public.

When instituting a mandatory flu vaccination program, however, an employer should be aware of the possible ramifications of denying or terminating employment for refusal to comply with a mandatory flu vaccination program on the basis of religious beliefs.  Continue reading »

Should I Employ an Attorney to Assist My Real Estate Business?

David A. Zobel

By David A. Zobel



Part 12 of a 12-part series by David A. Zobel on Legal Considerations for Your Missouri Leasing Business: What You Should Consider Now, Later, and Throughout the Process

Honestly, it just depends.

For many business owners, employing an attorney may seem like a costly and unnecessary burden. After all, draft formation documents and leases, as well as real estate tips, are available on the internet. No statutory requirement exists in Missouri to employ an attorney to form and operate your business (though, as we discussed in Litigation Considerations, you will likely need to hire an attorney to represent your company in court).

For others, engaging counsel throughout the formation and operation of their company is a critical tool to ensuring the success of their business venture. No attorney can predict, prevent, and avoid all troubles which might affect your business. However, an attorney in the real estate industry (like other industry professionals) may be more likely to identify and help you avoid pitfalls that he or she has seen in past experiences, more knowledgeable as to what tax or management strategy may be best as your company grows, and more apprised of ever changing statutes, regulations and trends. For business owners who see value in those matters, it may make more sense to consult with counsel.

While it may seem counter-intuitive, speaking with an attorney may actually help you determine whether you may want or need an attorney. Remember that while you can put an attorney on retainer, you are certainly permitted to seek advice and assistance from an attorney when issues arise.

***

This post is part of a series designed to help folks understand and navigate the various pitfalls and legal considerations of real estate leasing. If you would like assistance with forming or operating your business or to address a specific issue confronting your company, one of our experienced real estate attorneys would love to meet with you.

If you would like to go back and re-read any of our earlier posts, you can find links below.

Introduction
Part 1: Do I Need a Legal Entity?
Part 2: What Type of Legal Entities are Available?
Part 3: Tax Treatment Considerations When Selecting Your Entity
Part 4: Your Entity’s Governing Documents
Part 5: Operational Considerations – Purchasing Real Estate – Title Insurance
Part 6: Operational Considerations – Purchasing Real Estate – Indenture Review
Part 7: Operational Considerations – Purchasing Real Estate – Loan Documentation
Part 8: Observing Corporate Formalities
Part 9: Insurance Considerations
Part 10: Drafting the Right Lease Agreement
Part 11: Litigation Considerations
Part 12: Should I Employ an Attorney to Assist my Real Estate Business?

Employment News You Can Use

Laura Gerdes Long

By Laura Gerdes Long



Welcome to the inaugural issue of “Employment News You Can Use,” Danna McKitrick’s Employment Law Educational Alliance newsletter.

After a busy legislative session, employers may find several reasons to be encouraged.

Continue reading »

“Motivating Factor” Standard Replaces “Contributory Factor”

Laura Gerdes Long

By Laura Gerdes Long



Over the past decade, Missouri has been viewed as a plaintiff-friendly state in workplace discrimination lawsuits. Effective August 28, 2017, Senate Bill 43 was signed into law by Missouri Governor Eric Greitens, which amends the Missouri Human Rights Act (MHRA). The law changes the applicable standard for liability of an employer and more closely aligns Missouri law with federal policies and law. The standard for liability has moved from proof that the discriminatory conduct was a “contributing factor” to “the motivating factor.”

Under the more strict “motivating factor” standard, a plaintiff must prove, not only that the accused employer was unlawfully biased against the plaintiff’s protected classification, but also that this bias had a “determinative influence” on the employer’s decision to terminate the plaintiff. (Missouri Revised Statutes 213.010(19) 2017). The MHRA specifies that only employers are considered entities, not individuals, subject to liability for proven discrimination.

Also important, the MHRA changes language of the Act and now requires that a complaint must be formally filed by the victim within 180 days of any alleged discriminatory offense. Previously, in Missouri, a victim could file a complaint of discrimination within 300 days of the alleged discriminatory conduct. Continue reading »

When Bad Guys Attack: Data Breach and Legal Exposure

Ruth Binger

By Ruth Binger



Cyber criminals hack businesses for a myriad of reasons: to rob bank accounts by hacking email accounts and intercepting wire transfers; to file fraudulent tax returns using stolen customer or employee personal data; to commit health insurance or Medicare fraud; to steal intellectual property; to destroy  property; and to deny service.  Websites are also hacked as a mechanism to cyber hack other businesses. (See data protection tips here.)

Cyber hackers include your employees, identity thieves, contractors and vendors, business competitors, terrorists, state-sponsored actors and others. The success of your business and its very existence could be placed in jeopardy because of unauthorized business account access, loss of ability to execute transactions, regulatory, reputational and litigation costs, and significant remedial costs.

Focusing on the litigation ramifications, let’s use the following fictional ABC Co. case study to understand the various laws involved. Continue reading »

Litigation Considerations

David A. Zobel

By David A. Zobel



Part 11 of a 12-part series by David A. Zobel on Legal Considerations for Your Missouri Leasing Business: What You Should Consider Now, Later, and Throughout the Process

Whether you encounter a tenant who breaches your lease, a contractor who improperly repairs your property, or an individual injured on your property, at some point your company may be faced with the need to pursue or defend against a lawsuit. It is important to understand what your company should consider when it comes to our court system.

What type of paperwork do you have?

The first item to consider when an issue arises is whether the issue is documented.

  • If your contractor failed to properly repair the property, do you have a copy of your contract? What about pictures of the repairs?
  • Regarding tenant disputes, were your discussions and agreements in writing or, if initially in person or over the phone, did you follow-up with a letter memorializing your discussion? Do you have a copy of any demands for unpaid rent or to do/cease doing some activity?
  • Regarding an accident at the property, did you have warnings in place or written rules concerning the source of the accident?

What type of documentation was in place at the time the issue arose and what you have available will be crucial in evaluating whether and how to proceed with a lawsuit, what defenses are available, and whether settlement may be appropriate if your company is served with a court summons.

You will likely need to retain an attorney to represent the company in court. Continue reading »