Legal Archives

State and Federal Court Searches: Removal vs. Remand

The U.S. has a dual court system — state courts and federal courts. State courts are established by state law and have broad jurisdiction, which means they handle many types of cases. Federal courts are established under the U.S. Constitution and have a limited jurisdiction, typically limited to cases involving the Constitution and laws passed by Congress.

In some cases, the parties may disagree about whether the case should be heard in state or federal court. When this occurs, your court searches may locate state cases that have been “removed to federal court” or federal cases that have been “remanded back to state court” – and sometimes both procedures will happen to the same case.

“Removal” is when a defendant takes a case that was filed by the plaintiff in state court and then brings it to federal court. A defendant can remove a case from state court to federal court if the case originally could have been brought in federal court. The plaintiff can challenge the removal to federal court and, if the challenge is successful, the federal court will “remand” the case back to state court.

July 12th, 2022|Categories: Compliance Corner|Tags: Courts, Legal, US Court System|

Company Legal Name v. DBA

Every business has a “legal” or “true name.” When researching a company, it is important to identify its legal name. In the case of a corporation or limited liability company, the legal name is the one on its formation document — e.g., the articles of incorporation or articles of organization. As an example, Scherzer International’s legal name is Scherzer International Corporation.

If the company does business under another name, it is commonly referred to as a DBA – which stands for “doing business as.” DBAs are also sometimes referred to as an “assumed name,” “fictitious business name,” or “trade name.” State and local laws generally require a company to register a DBA it is using; however, it is important to note that registering and doing business under a DBA name is not the same as forming a business or a business entity.

June 16th, 2022|Categories: Commercial Transactions Due Diligence|Tags: Legal, Legal Name|

New York Drunk Driving Laws: DWI v. DWAI v. DUI

Almost everyone has heard the terms DWI and DUI, and many think that both are interchangeable. New York law uses a third term – DWAI. None of these terms are interchangeable and New York law does not use the term DUI or driving under the influence.

In New York, there are two main “drunk driving offenses” – DWI and DWAI. DWI stands for “driving while intoxicated,” while DWAI stands for “driving while ability impaired.” A DWI means that the driver is legally intoxicated, with a blood alcohol content of at least 0.08 percent. A DWAI involving alcohol means the driver’s blood alcohol content is between 0.05 and 0.07 percent.

Although the penalties for a New York DWI and DWAI are nearly the same, there is a big difference between them regarding the offense level. A DWI conviction is a criminal offence, while a DWAI conviction is a violation – which in New York is a non-criminal offence.

The practical effect of this distinction is that a DWAI conviction will appear on a New York driving record (usually stated as “driving while impaired”), but the court conviction will not appear on a New York Statewide CHRS report because these reports do not include non-criminal offenses such as violations.

June 6th, 2022|Categories: Compliance Corner|Tags: Legal, New York|

Expungement of Criminal Convictions – California Style

Some states allow a defendant convicted of a crime to apply for a court order limiting public access to the conviction record or to restore rights and remove disabilities caused by the conviction. This type of order is commonly referred to as an expungement; however, the qualifications for obtaining an expungement and the effect of the expungement vary among the states that allow expungements.

California has an expungement procedure set forth in Penal Code 1203.4. If a defendant meets the qualification of Penal Code 1203.4, the court will allow the defendant to withdraw a plea of guilty or no contest, to reenter a plea of not guilty, and to have the case dismissed. The defendant is also relieved from many of the negative consequences of a criminal conviction.

When reviewing California criminal records showing a conviction, it is important to note if there is also a reference to a Penal Code 1203.4 dismissal because this can impact whether the record is reportable in a background check for a California employer. For example, California law does not allow the reporting of criminal records that result in a non-conviction in employment-purpose reports. Even though the record shows a conviction, the Penal Code 1203.4 dismissal effectively means the conviction never happened.

The reference to the code section will typically be found on the case docket, dated a year or so after the conviction date.

January 26th, 2022|Categories: Compliance Corner|Tags: California, Courts, Legal|

Decoding Criminal Case Dispositions

A “disposition” is the final outcome of a case, regardless of what it is called. Here is a list of typical criminal case dispositions.

Guilty or Conviction: This is the worst possible disposition if you are the defendant. It means that the case was heard and decided against you. With a conviction, the court will impose a sentence that may include jail time, probation, and paying a fine and court fees.

Not Guilty: The case actually proceeds to a trial, where a jury (or a judge in certain types of cases) decides that the evidence against the defendant was insufficient for a conviction. It does not mean the defendant was innocent – just that the case was heard and decided in the defendant’s favor.

Dismissal: A dismissal is entered when the court determines that the case should not move forward for some reason. There are many reasons for dismissals. For instance, there can be procedural errors, a lack of proper jurisdiction over the type of case, or the prosecutor decides to dismiss the charges (see below).

Nolle Prosequi or Nolle Prosse: A Latin phrase meaning “no more prosecution.” This is another way of saying that a case is dismissed by the prosecutor. This approach is often used when a defendant may agree to plead guilty to a lesser offense that guarantees the prosecution a conviction for a related offense, in exchange for the prosecutor “dismissing” the more serious charge.

January 12th, 2022|Categories: Compliance Corner|Tags: Courts, Disposition, Legal|

Uber settles class-action for $28.5 million for misleading claims about drivers’ background checks

On February 12, 2016, Uber agreed to settle a consolidated class-action filed in the U.S. District Court for the Northern District of California (Philliben v. Uber Technologies, Inc. and Mena v. Uber Technologies, Inc.) by paying $28.5 million to approximately 25 million riders and promising to avoid using certain language in safety-related advertising, as well as the term “safe ride fee.”

In their complaint filed in 2014, the plaintiffs alleged that Uber’s claim of conducting “industry-leading background checks” for which they paid a “safe ride fee” of $1 to $2 on top of each fare, was false and misleading. According to the complaint, Uber does not and has never had an “industry-leading background check process.” To the contrary, the complaint stated that background screening by Uber does not involve fingerprint identification and, therefore, cannot ensure that the information obtained from a background check actually pertains to the driver that submitted the information. By contrast, most taxi regulators in United States require drivers to undergo criminal background screening, using fingerprint identification, and typically employing a technology called “Live Scan.” Going forward, Uber said it will rename the “safe ride fee” as a “booking fee” which will be used to cover safety and additional future operational costs.

If the judge approves the settlement, members of the class who rode in an Uber vehicle in the United States between January 1, 2013 and January 31, 2016 will be eligible to receive a portion of the settlement. If that pot is divided evenly among Uber’s 25 million passengers, after attorneys’ fees, each will get around $1.

Read the consolidated class-action complaint here.

February 23rd, 2016|Categories: Employment Decisions|Tags: Class-action, Lawsuit, Legal, Uber|

Sixth Circuit affirms dismissal of EEOC’s suit regarding employment credit checks

Last month, the 6^th Circuit affirmed a lower court order granting summary judgment in favor of educational institution Kaplan (6th Cir. April. 9, 2014; No. 13-3408: EEOC v. Kaplan Higher Education Corp.) where the EEOC charged that Kaplan’s use of credit checks causes it to screen out more African-American applicants than white, creating a disparate impact in violation of Title VII of the Civil Rights Act. In granting summary judgment to Kaplan, the district court stated that “proof of disparate impact is usually statistical proof in the form of expert testimony, and here the EEOC relied solely on statistical data compiled by Kevin Murphy, a PhD in industrial and organizational psychology.” The court excluded Murphy’s testimony on grounds that it was unreliable, as the EEOC presented “no evidence” that Murphy’s methodology satisfied any of the factors that courts typically consider in determining reliability under Federal Rule of Evidence 702; and, as Murphy himself admitted, his sample was not representative of Kaplan’s applicant pool as a whole. The EEOC argued that the district court “erred” when it excluded Murphy’s testimony.

This case was decided on narrow grounds, based on its particular facts and circumstances. Accordingly, employers still should review their screening policies to ensure that credit and (criminal history) checks are consistent with Title VII as interpreted by the EEOC. Additionally, ten states (California, Colorado, Connecticut, Hawaii, Illinois, Maryland, Nevada, Oregon, Vermont and Washington) and several municipalities already have legislation that limits the use of credit reports for employment purposes

May 14th, 2014|Categories: Employment Decisions|Tags: EEOC, Legal|