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Does a Loss of Consortium Mean a Loss of Confidentiality?

Customarily the confidentiality between an attorney and his client is sacrosanct, but the case of Lesley Corey, As Administratrix of the Estate of Joseph Corey, and Lesley Corey, in her Own Right v. Wilkes Barre Hospital Company, LLC d/b/a/ Wilkes-Barre General Hospital Emergency Department and J. Charles Lentini, M.D. v. Pennsylvania Physicians Services, LLC, 2019 Pa. Super. 288 (“Lesley Corey”) explores a situation where that confidentiality in a divorce matter may be breached.

When bringing a civil claim, one must be cognizant of what doors are opened simply by the filing of the claim.  If something is somehow relevant to the claims being made, and can offer insight into them, then there is a potential that the Court will allow the opposing party to explore it through discovery.  As Lesley Corey demonstrates, not even the usually impenetrable attorney/client privilege can necessarily protect something from discovery if a party makes it an issue in a case.

In Lesley Corey, the Appellant (Plaintiff) brought a lawsuit (“lawsuit”) on November 25, 2015 alleging injuries stemming from medical care her husband received at the hands of the Defendants led to his death.  Loss of consortium due to her husband’s death was one of Plaintiff’s claims in the lawsuit.  On February 5, 2013, over two (2) years prior to the lawsuit, Plaintiff filed a divorce complaint against her husband, claiming, among other things, that her marriage was irretrievably broken and that she suffered marital indignities from her husband (“divorce action”).  Plaintiff’s husband filed a divorce counterclaim also alleging that their marriage was irretrievably broken and that he suffered marital indignities from Plaintiff.  In August 2013, about six (6) months after the initiation of the divorce action, Plaintiff’s husband died.  At the time of his death, the divorce action was still active, and Plaintiff and her husband had never reconciled.

When initially faced with Plaintiff’s loss of consortium claim, the Defendants filed preliminary objections seeking to strike Plaintiff’s said claim, but they were dismissed as premature.  Pursuing this same line of attack, Defendants issued subpoenas for Plaintiff’s divorce records upon the respective divorce attorneys.  Motion proceedings ensued as follows:

  • Plaintiff filed objections to the subpoenas, but Defendants’ motion to strike those objections were granted, and the divorce attorneys were ordered to respond within twenty (20) days to the subpoena;
  • Then the divorce attorneys filed objections to the subpoenas, which invited Defendants to file a motion to strike the objections.  Again the motion to strike was granted and the attorneys, in response, released non-privileged divorce records;
  • The divorce attorneys’ limited response to the subpoenas led to Defendants filing a motion to compel against them for the privileged divorce records.  An in camera review of the divorce records was then ordered, but the divorce attorneys merely stated that attorney/client privilege was not waived;
  • Undeterred, Defendants then issued a notice of deposition upon Plaintiff, to which Plaintiff objected.

Ultimately, Defendants filed for partial summary judgment to dispose of the loss of consortium claim.  The trial court, when ruling on the summary judgment motion, noted “[A]s I have said repeatedly, ordinarily an attorney-client privilege maintains the utmost authority that is rarely if at any time called into question.”  The Court further observed that the basis of the loss of consortium claim “directly reflects the status of the marriage at the time of [the husband’s] death.”  As a result, the Court ruled that the privileged divorce records were, therefore, discoverable and ordered them to be produced.

Plaintiff’s attorney still resisted releasing the privileged records, prompting Defendants to file a motion for contempt and sanctions against Plaintiff in response, to which Plaintiff then filed a motion to disqualify and a motion to vacate, each of which were denied/dismissed.  Plaintiff filed an appeal to Pennsylvania Superior Court from the denial and dismissal.

As an initial matter, the Court pointed out that while discovery orders are typically not appealable before final judgment, there is an exception for so-called “collateral orders.”  A collateral order is one that “(1) is separable from and collateral to the main cause of action; (2) concerns a right too important to be denied review; and (3) presents a claim that will be irreparably lost if review is postponed until final judgment in the case.”

The Court ruled that ordering the disclosure of information covered by the attorney/client privilege is a collateral order.  Specifically, the order is separable from and collateral to the main cause of action, it is an extremely important right that must be reviewed, and once breached, the privilege is irreparably lost.

The Court began its analysis of the merits of this matter by first pointing out that a loss of consortium claim includes a claim for loss of sexual relations between spouses, but also includes the non-sexual conjugal fellowship between husband and wife, namely the right to their mutual company, society, cooperation, affection, and aid.  Consequently, a loss of consortium claim requires the demonstration of the loss of one or more of the above characteristics of a marital relationship.  The spouse who brings a loss of consortium claim, by definition, places the condition of the marital relationship at issue as – in the words of the Court – “the divorcing spouse must first prove the existence of consortium.”

The Court stated that Plaintiff cannot “hide behind attorney-client privilege” in order to protect privileged communications about the condition of her marriage, while, at the same time, making the condition of her marriage the basis of her claim for loss of consortium.  The Court believed that to allow the privilege to protect this communication would frustrate the administration of justice by giving a party in Plaintiff’s position the ability to have an unfair advantage over the party defending against her claim for loss of consortium.

Based on the above, the Pennsylvania Superior Court entered an order affirming the order to require the disclosure of the privileged divorce records.

This case serves as a cautionary tale.  When bringing a civil claim, if one puts something at issue, then one must be prepared to disclose even privileged information about it, as the bringing of the claim opens the door to allow access to the privileged information.

Originally published in The Legal Intelligencer on March 18, 2020 and can be found here.

PA Superior Court Says QDRO’s Take Effect Upon Execution of Marital Agreement

Conway v. Conway v. City of Erie Police Relief and Pension Association, 209 A.3d 367 (PA Super. 2019)

Brief Summary of the Facts:

Michael Conway (“Husband”) and Julie Conway (“Wife”) were married on July 12, 1991 and separated in August 2007.  Husband was employed as a police officer and filed for divorce on July 28, 2009. The parties executed a Marital Settlement Agreement (“MSA”) on Aug. 19, 2016, that directed the parties to prepare, execute, and file a Qualified Domestic Relations Order (“QDRO”) to allow Wife to receive her marital share of Husband’s pension. At the time of the execution of the MSA, Husband’s pension plan stated, with regard to a QDRO, “a former spouse of a Participant shall be treated as the spouse or surviving spouse for all purposes under the Plan.” A divorce decree was entered on Aug. 22, 2016, that incorporated the MSA. On Aug. 23, 2016, the municipality for which Husband worked amended the pension plan to read “a former spouse of a Participant shall not be treated as the spouse or surviving spouse for any purposes under the Plan,” (emphasis added). Wife submitted the QDRO to the pension plan administrator on Aug. 29, 2016, which denied the QDRO on the basis that as it was filed after the Aug. 23, 2016 pension plan revision and is inconsistent with the same. Wife filed a Motion for Entry of QDRO, which was denied by the trial court, prompting Wife to appeal to Superior Court.

Issue:

Did the trial court err by failing to enter the QDRO submitted by Wife to secure her post-divorce rights to Husband’s pension when the MSA and Divorce Decree were both filed/entered and in effect prior to the revision to the pension plan? Holding A QDRO is an order “which creates or recognizes the rights of an alternate payee to receive all or a portion of the benefits payable to a participant under [a pension] plan.” A QDRO merely implements the terms of a preexisting MSA and does not in itself create new rights or terms. In the instant matter, the MSA was entered and incorporated into a Divorce Decree before the pension plan was revised; therefore, as the QDRO only serves to recognize and implement settled rights, it is enforceable as the underlying MSA predates the pension plan revisions. The denial of the QDRO amounts to an unlawful ex post facto application of the revised pension plan. Based on the above, the court directed the QDRO to be entered.

Comments/Impressions:

The court also pointed out that the objective of the Divorce Code “is to effectuate economic justice” for the parties to a divorce. In the court’s estimation, to rule against Wife “would deny [her] the benefit she bargained for and would cause an unfair and severe injustice concerning the parties’ settlement of their existing rights” and would be “contrary to the goal of achieving economic justice.”

Originally published in the Pennsylvania Family Lawyer in Volume 41, Issue number 3 (Autumn 2019)

Finding Attorneys in Contempt for Clients’ Actions in Divorce Case

No one wants to be held in contempt of court, and attorneys do their best to try and keep their clients from being held in contempt, but there are times when an attorney can be held in contempt of court for what his client does or does not do.

No one wants to be held in contempt of court, and attorneys do their best to try and keep their clients from being held in contempt, but there are times when an attorney can be held in contempt of court for what his client does or does not do. The recent Pennsylvania Superior Court case of Farrell v. Farrell, No. 1424 WDA 2018 (Pa. Super), should serve as a cautionary tale for all attorneys to keep in mind when discerning how much involvement their clients should have in the drafting and serving of legal documents.

Farrell is a divorce matter that involved two represented parties, the husband and the wife. The husband initiated the divorce action against his wife who, for the first two years of the case, elected to proceed on a pro se basis. When it was time for the case to be advanced to a divorce master, the wife hired an attorney. In the months leading up to the divorce master’s hearing, the husband issued the wife informal discovery requests. The wife ignored the requests, which led to the husband issuing follow-up correspondence, to which, again, the wife provided no response. As a result, the husband filed a motion to compel the responses to the discovery requests. The trial court granted the motion, and gave the wife 20 days to comply with the discovery requests.

Instead of taking an active role in helping her client respond to the discovery requests, the wife’s attorney simply allowed her client to type up the responses herself, which the attorney then forwarded to the husband’s attorney, unedited. In her responses, the wife refused to disclose some information, declared some requests “N/A,” and leveled personal attacks upon the husband in others.

The wife’s pro se responses provoked the husband’s attorney to file a motion to compel, for sanctions and for attorney fees. The court scheduled a hearing on the husband’s motion three days after the responses were filed, as the master’s hearing was scheduled for four days after the responses were filed. As a response to the husband’s aforesaid motion, the wife’s attorney immediately filed her own motion to compel and for attorney fees.

At the motion hearing, the husband admitted that more documents were produced by the wife, but her responses were still inadequate. Furthermore, the wife’s attorney indicated that she had not prepared the discovery responses for the husband, but simply allowed her client to type up the responses where provided on her own. The court took note of when the wife filed her above-mentioned motion and found that it was filed for the sole purpose of trying to “equalize” the motion filed by the husband, and not for any actual legally cognizable purpose.

At the conclusion of the hearing, the trial court dismissed the wife’s motion and granted the husband’s motion, ordering that the wife may not produce any documentation not already produced in support of her own case. The court also found the wife’s attorney to be in contempt, ordering her to pay the husband’s attorney fees. The wife’s attorney filed for reconsideration and appealed this ruling to the Superior Court.

The wife’s attorney argued in both her motion for reconsideration and the appeal that she cannot be personally found in contempt as she was never actually ordered to do anything (only her client was) regarding discovery. To this end, she maintained that no evidence was ever produced demonstrating that she, personally, had any court order directing her to do anything, therefore there is no evidence that she disregarded a court’s order. She further argued that there was no evidence belonging to the wife that she had in her possession that was requested to be produced; therefore, she did not personally withhold anything from being produced in discovery.

As an initial matter, the Superior Court first noted that the wife’s attorney cited to no authority for the proposition that she cannot personally be held in contempt for her client’s actions or inactions. As a result, under established case law, her arguments, on that issue, were deemed waived as unsupported by authority.

Regardless, the court cited to Pa.R.C.P. 4019(g)(1) which states that “the court on a subsequent motion for sanctions may, if the motion is granted, require the … attorney advising such conduct … to pay the moving party the reasonable expenses, including attorney’s fees …”

Based on Pa.R.C.P. 4019(g)(1), the court determined that the wife’s attorney’s decisions to allow the wife to personally produce deficient and attacking discovery responses without the attorney offering any input or edits, did not comply with the trial court’s order to compel, and her filing of what appears to be a retaliatory motion to compel are all adequate grounds to hold the wife’s attorney in contempt of court.

So, while it is rare, practitioners should always be cognizant of the fact that they could be held in contempt of court for the actions of their clients, even if they were not personally directed by the attorney and there is no order directing the attorney to do anything.

James W. Cushing is a senior associate at the Law Office of Faye Riva Cohen and is a research attorney for Legal Research Inc.

Originally published in The Legal Intelligencer on December 16, 2019 and can be found here.

Why Are We All Having So Little Sex?

By BELINDA LUSCOMBE

Matt, a 34-year-old data analyst from Texas, and his wife dated for seven years before getting married in 2013. When they didn’t live together, they had sex every time they saw each other. After they moved in, however, he says things changed. Their sex life became inconsistent. They’d have a really active week and then a month with nothing, or just one at-bat. It began to hurt their relationship. At one point early in their marriage, Matt’s wife got pregnant, but they weren’t sure the marriage was going to make it, so they terminated the pregnancy. Part of the problem for Matt, who spoke to TIME about his sex life on the condition his last name wouldn’t be printed, was that he didn’t know how to talk about sex with his wife.

If Matt’s story sounds familiar to you, you are not alone. Americans are not having sex. They’re not having sex in droves. According the General Social Survey, a profile of American behavior that has been gathered by the National Opinion Research Council at the University of Chicago since 1972, the fraction of people getting it on at least once a week fell from 45% in 2000 to 36% in 2016. One study of the GSS data showed that more than twice as many millennials were sexually inactive in their early 20s than the prior generation was. And the sharpest drop was the most recent, in the years 2014 to 2016.

The indicators of a falling bonk rate are everywhere. In 2016, 4% fewer condoms were sold than the year before, and they fell a further 3% in 2017. Teen sex, which is monitored by the Centers for Disease Control, is flat and has been on a downward trend since 1985. And the fertility rate—the frequency at which babies are added to the population—is at a level not seen since the Great Depression.

How can this be? After all, this is the era when we’ve finally torn down many barriers. The social stigma around premarital sex is gone, hookups are not considered shameful, and the belief in limiting partners to one side of the gender line is no longer universal. Our many forms of contraception have reduced the risk of serious physical consequences. There are a wealth of technological assists, including apps like Tinder to help willing partners find each other, endless free online porn to rev the engines, and the Dr. Fils—tadalafil (Cialis), vardenafil (Levitra), and sildenafil (Viagra) to overcome the most common physical limitations for men.

Yet the slump in pumping doesn’t seem to be a blip. Nearly 20% of 18- to 29-year-olds reported having no sex at all in 2016, an almost 50% rise over those who were celibate in 2000. “The downward trend is very real,” says Philip Cohen, a sociology professor at University of Maryland, College Park.

But married folks are falling down on the job too. “The number one issue that I deal with in my practice is discrepant libido and low libido and no libido,” says couples therapist Ian Kerner, author of the book She Comes First. Twenge’s study shows that the highest drop in sexual frequency has been among married people with higher levels of education. Counterintuitively, parents with kids younger than six had the same amount of sex as their forbears had, but those with offspring in the 6 to 17 age range were doing less of what made them parents. This may reflect the more child-centric family lives that people are leading and the stress of modern parenting. “We know there’s more parenting anxiety,” says Cohen. “That could be turning into generalized family anxiety.” Only the 60-somethings are bucking the trend—possibly partly with a little pharmaceutical help. Unlike the retirees who came before them, they’re putting the sex back in sexagenarian, with an average coital frequency that is slightly higher than in two decades earlier.

Moreover, many couples have perfectly good reasons for not having sex: they’re exhausted, they’re unwell, they have too much else to do, or the kids are in the bed with them.

In wealthier countries, a wider array of entertainment alternatives are even more likely to sneak into the bedroom. An online study of 1000 Americans commissioned by the bedmaker Saatva found that almost 40% of them bring some sort of internet-connected device to bed with them. About 60% of them browse the internet from bed and 24% of them have fallen asleep while doing so. And the more highly educated seem to be the worst offenders. The poll found that affluent Americans were more likely than Americans as a whole to fall asleep while using email, working or paying bills or finances, activities more likely to raise stress than libido. “Technology in the bedroom, unless it’s technology that’s being used in a kind of pro-sexual or sexual arousing way, can be a major deterrent to some of that kindling of sexual arousal that’s really necessary for desire,” says Dr. Lori Brotto, an obstetrics professor at the University of British Columbia and a sex therapist.

The trend for using beds for other activities beside sleeping and making whoopee is so robust that Saatva is marketing a bed that adjusts to the seated position to make such activities more comfortable—and sex less so. “We’re one of the few species that mate face to face,” says Sue Johnson, a Canadian psychotherapist and the developer of Emotionally Focused Therapy, a well-regarded couples counseling technique. “And face to face interactions seem to be going down everywhere. We turn to technology instead of to people. And that’s happening in sexuality just like everywhere else.” Indeed, the sex toy industry has been growing briskly, and is now worth about $15 billion annually. Astonishing numbers of hours of pornography are being consumed online. And VR porn is taking off.

One theory is that porn has become so easy to get—any smartphone owner with wi-fi and headphones is set—and the video quality so lifelike, that “busy people are retreating from the work it takes to have sex with another person,” says Mark Regnerus, an associate professor of Sociology, at University of Texas and the author of Cheap Sex, The Transformation of Men, Marriage, and Monogamy. “They think, O.K., this is close enough.” Pornhub, one of the popular sites, says its usage spikes between 10pm and 1am, times when people are bedding down next to their loved ones.

Another complicating factor is the changing conversation around consent and sexual advances, shaped by the #MeToo movement. Matt, along with several other struggling sexual partners interviewed as background for this story, expresses uncertainty about where the boundaries lie. “There was always the question in my mind, am I being unreasonable?” Matt says. “It’s not for me to determine how legitimate her excuses are. And I don’t want to do it if she’s not into it.” But he admits he’s also possibly overthinking it. “It’s probably a cultural thing, where there’s such a huge emphasis on consent and of course, there should be,” he says, “but it’s important to the point where I’m not even willing to question whether there is something wrong in the relationship.”

Brotto is part of a wave of researchers—many of them Canadian, since funding is hard to come by in the U.S.—looking into the complex issue of women’s sexuality, and particularly into low desire. One of the more alarming discoveries to emerge so far is the large number of women for whom sex is actually painful. “One in five young women 18 to 29 experience chronic pain during sex,” says Natalie Rosen, a psychologist and associate professor at Dalhousie University in Nova Scotia. Sometimes the discomfort goes away of its own accord, but only 60% of women seek treatment and, in a study released in 2017, Rosen found that a third of women never mentioned it to their partners because they were ashamed, felt inadequate or feared being dumped. “Or they end the relationship preemptively without telling their partner why,” says Rosen.

It’s a sharp contrast to the predominant image of youthful sex as a fun, easygoing hookup culture, and one that may have a ripple effect for women down the line, as sex becomes a source of anxiety instead of joy. “I worry about what that means for a lifetime of sexual difficulties,” says Brotto. “I think there’s much more work for us to do in that area.”

Gender dynamics are having an impact on one of the oldest and sturdiest reasons for abstinence: mates are not finding each other attractive. A controversial thesis was put forward in a 2012 paper in the American Sociological Review that looked at sexual frequency and chore distribution and noted that “households in which men do more traditionally male labor and women do more traditionally female labor report higher sexual frequency.” The secret to sexual chemistry, the study seemed to suggest, was for men and women to stay in their gender-stereotyped lanes. That conclusion makes sense to Regnerus. “The more alike men and women are at some level, the less interesting we become to each other,” he says. “We are interested in that which we are lacking. It sounds unenlightened, but similarity is not conducive to eros.”

There are other more prosaic reasons for desire discrepancy, the academic term for the unhappy situation in which one partner wants a lot more sex than the other. Some of them are hard to budge, from genetics to upbringing to hormonal changes to sexual history to general healthiness. The higher national rates of obesity are one likely libido-dampener, for example. It’s not just that obese men are more likely to be impotent. “There are health implications,” says Maryland’s Cohen, “and there is the social self-image, feeling attractive. I would suspect that could be an issue.”

Then there’s that other public health epidemic: depression. “What we see in every national probability study is that depression usually rises to the top as being one of the leading causes of low desire, specifically,” says Brotto. Treating depression can further hurt desire; many common medications for depression, such as SSRIs, are known to lower libido.

All of this, Twenge believes, may be leading to a generation of young people who are not interested in partnering up, who are moving away from pair bonding into the sexual equivalent of a gig economy. Instead of having a job or steady relationship, people have to find their own opportunities. “The theme that comes up over and over [among young people] is the increase in individualism,” says Twenge. “More focus on the self and less on social rules.” That would explain both the openness around sexuality and the drop in actual sex.

This was the key for Matt and his wife. “Sometimes there’s still a libido mismatch,” he says of his marriage now. “And not every week or month is perfect, but my wife and I have learned to communicate better, and we’ve both learned to listen better.” Things are going so well that they recently decided the time was right to try to start a family and in October they found out they were pregnant.

Originally published in Time on Octoer 26, 2018 and can be found here.

Joe Arcieri Songs: Hot and Cold 5

Joe Arcieri is a friend of mine who I worked with for many years during my ten years working for Acme Markets.  Joe, when not stocking milk or saving lives as a nurse, is an excellent guitar player.  I have had the privilege, from time to time, of (badly) plunking my bass guitar with Joe as he melts a face or two with a great solo.

As great musicians do, Joe has written some of his own songs and keeps a soundcloud site to post them.  When I have opportunity, I will post his music here as well.

Here is his composition called “Hot and Cold 5” which you can find here.

Here are the links to the previously posted songs by Joe:

Donald Trump and the American Left

The election of Donald Trump fractured the American Left. The abandonment of class analysis in response to Mr. Trump’s racialized nationalism left identity politics to fill the void. This has facilitated the rise of neoliberal nationalism, an embrace of the national security state combined with neoliberal economic analysis put forward as a liberal / Left response to Mr. Trump’s program. The result has been profoundly reactionary.

What had been unfocused consensus around issues of economic justice and ending militarism has been sharpened into a political program. A nascent, self-styled socialist movement is pushing domestic issues like single payer health care, strengthening the social safety net and reversing wildly unbalanced income and wealth distribution, forward. Left unaddressed is how this program will move forward without a revolutionary movement to act against countervailing forces.

As widely loathed as the Democratic establishment is, it has been remarkably adept at engineering a reactionary response in favor of establishment forces. Its demonization of Russia! has been approximately as effective at fomenting reactionary nationalism as Mr. Trump’s racialized version. Lest this be overlooked, the strategy common to both is the use of oppositional logic through demonization of carefully selected ‘others.’

This points to the most potent fracture on the Left, the question of which is the more effective reactionary force, the Democrats’ neoliberal nationalism or Mr. Trump’s racialized version? As self-evident as the answer apparently is to the liberal / Left, it is only so through abandonment of class analysis. Race, gender and immigration status are either subsets of class or the concept loses meaning.

By way of the reform Democrat’s analysis, it was the shift of working class voters from Barack Obama in 2012 to Donald Trump in 2016 that swung the election in Mr. Trump’s favor. To the extent that race was a factor, the finger points up the class structure, not down. This difference is crucial when it comes to the much-abused ‘white working-class’ explanation of Mr. Trump’s victory.

What preceded Donald Trump was the Great Recession, the most severe capitalist crisis since the Great Depression of the 1930s. The Great Recession followed approximately three decades of neoliberal de-industrialization, of policies intended to reduce the power of organized labor, reduce working class wages and raise economic insecurity under the antique capitalist theory that destitution motivates workers to produce more for less in return.

The illusion / delusion that these problems— lost livelihoods, homes, social roles, relationships, sense of purpose and basic human dignity— were solved, or even addressed, by national Democrats, illustrates the class divide at work. The economy that was revived made the rich fabulously rich, the professional / managerial class comfortable and left the other 90% in various stages of economic decline.

Left apparently unrecognized in bourgeois attacks on working class voters is that the analytical frames at work— classist identity politics and liberal economics, are ruling class ideology in the crudest Marxian / Gramscian senses. The illusion / delusion that they are factually descriptive is a function of ideology, not lived outcomes.

Here’s the rub: Mr. Trump’s critique of neoliberalism can accommodate class analysis whereas the Democrats’ neoliberal nationalism explicitly excludes any notion of economic power, and with it the possibility of class analysis. To date, Mr. Trump hasn’t left this critique behind— neoliberal trade agreements are currently being renegotiated.

Asserting this isn’t to embrace economic nationalism, support policies until they are clearly stated or trust Mr. Trump’s motives. But the move ties analytically to his critique of neoliberal economic policies. As such, it is a potential monkey wrench thrown into the neoliberal world order. Watching the bourgeois Left put forward neoliberal trade theory to counter it would seem inexplicable without the benefit of class analysis.

Within the frame of identity politics rich and bourgeois blacks, women and immigrants have the same travails as their poor and working-class compatriots. Ben Carson (black), Melania Trump (female) and Melania Trump (immigrant) fit this taxonomy. For them racism, misogyny and xenophobia are forms of social violence. But they aren’t fundamental determinants of how they live. The same can’t be said for those brutalized by four decades of neoliberalism

The common bond here is a class war launched from above that has uprooted, displaced and immiserated a large and growing proportion of the peoples of the West. This experience cuts across race, gender and nationality making them a subset of class. If these problems are rectified at the level of class, they will be rectified within the categories of race, gender and nationality. Otherwise, they won’t be rectified.

Democrats could have confronted the failures of neoliberalism without resorting to economic nationalism (as Mr. Trump did). And they could have confronted unhinged militarism without Mr. Trump’s racialized nationalism. But this would have meant confronting their own history. And it would have meant publicly declaring themselves against the interests of their donor base.

Mr. Trump’s use of racialized nationalism is the primary basis of analyses arguing that he is fascist. Left unaddressed is the corporate-state form that is the basis of neoliberalism and was the basis of European fascism. Recent Left analysis proceeds from the premise that state control of the corporate-state form is fascism while capitalist control—neoliberalism, is something else.

Lest this not have occurred, FDR’s New Deal was state control of the corporate-state form. The only widely known effort to affect a fascist coup in the U.S. was carried out by Wall Street titans in the 1930s to wrest control from FDR before the New Deal was fully implemented. Put differently, the people who caused the Great Depression wanted to control its aftermath. And they were fascists.

More recently, the effort to secure capitalist control has been led by liberal Democrats using Investor-State Dispute Resolution (ISDS) clauses in trade agreements. So that identity warriors might understand the implications, this control limits the ability of governments to rectify race and gender bias because supranational adjudication can overrule them.

So, is race and / or gender repression any less repressive because capitalists control the levers? Colonial slave-masters certainly thought so. The people who own sweatshops probably think so. Most slumlords probably think so. Employers who steal wages probably think so. The people who own for-profit prisons probably think so. But these aren’t ‘real’ repression, are they? Where’s the animosity?

As political scientist Thomas Ferguson has been arguing for decades and Gilens and Page have recently chimed in, neither elections nor the public interest hold sway in the corridors of American power. The levers of control are structural— congressional committee appointments go to the people with lots of money. Capitalist distribution controls the politics.

The liberal explanation for this is ‘political culture.’ The liberal solution is to change the political culture without changing the economic relations that drive the culture. This is also the frame of identity politics. The presence of a desperate and destitute underclass lowers working class wages (raising profits), but ending racism is a matter of changing minds?

This history holds an important lesson for today’s nascent socialists. The domestic programs recently put forward, as reasonable and potentially useful as they are, resemble FDR’s effort to save capitalism, not end it. The time to implement these programs was when Wall Street was flat on its back, when it could have been more. This is the tragedy of Barack Obama.

Despite the capitalist rhetoric at the time, the New Deal wasn’t ‘socialism’ because it never changed control over the means of production, over American political economy. Internal class differences were reduced through redistribution, but brutal and ruthless imperialism proceeded apace overseas.

The best-case scenario looking forward is that Donald Trump is successful with rapprochement toward North Korea and Russia and that he throws a monkey wrench into the architecture of neoliberalism so that a new path forward can be built when he’s gone. If he pulls it off, this isn’t reactionary nationalism and it isn’t nothing.

Otherwise, the rich have assigned the opining classes the task of defending their realm. Step 1: divide the bourgeois into competing factions. Step 2: posit great differences between them that are tightly circumscribed to prevent history from inconveniently intruding. Step 3: turn these great differences into moral absolutes so that they can’t be reconciled within the terms given. Step 4: pose a rigged electoral process as the only pathway to political resolution. Step 5: collect profits and repeat.

By Rob Urie and published on August 3, 2018 in Counterpunch and can be found here.

 

The utilization of social media as a means to alienate, intimidate, and bully women into submission cannot be tolerated.

The Melissa Chinery and Laura Medlin cases against American Airlines, cases currently being litigated by my firm, the Law Office of Faye Riva Cohen, P.C., have been featured in an article entitled “The utilization of social media as a means to alienate, intimidate, and bully women into submission cannot be tolerated,” on Now.org published on November 16, 2018, which can be found here.

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Melissa Chinery and Laura Medlin are two flight attendants who are suing American Airlines for negligence in handling their sexual harassment case. Forbes.com detailed the nature of the Chinery’s and Medlin’s claim. Chinery is a member of the Association of Professional Flight Attendants (APFA) union. She faced harsh online harassment from male union members and colleagues after Chinery ran for APFA local president.  Medlin says she faced similar harassment after attempting to take part in union activities. Both were called sexist, derogatory names such as “sow”, “flipper”(a euphemism for prostitute), and they used the c-word. After filing a report with the American Airlines Human Resources department, little was done to address Chinery’s harassment, according to Chinery. The online harassment escalated the more Chinery tried to seek help from within. Her car was keyed and anonymous numbers called to harass her mother. Amid the increasing attacks, American Airlines, according to Chinery, continuously failed to provide the two attendants with adequate support and protection.

The litigation between Chinery and Medlin against American Airlines started in June of 2016. Over the last two years, Chinery and Medlin provided ample evidence of a neglectful Human Resources department in their case. Dan Cleverly, a senior Human Resource investigator, admitted during the trial that Chinery’s harassment complaints were not properly investigated.

American Airline’s failure to enforce its social media policy showed a lack of understanding of the evolving nature of workplace harassment and discrimination. The utilization of social media as a means to alienate, intimidate, and bully women into submission cannot be tolerated. Additionally, the leadership of the Association of Professional Flight Attendants (APFA) should do a better job of countering harassment and intimidation by its members.

In September, Chinery and Medlin announced that are seeking an appeal after their case was ruled in favor of American Airlines. We stand with Chinery and Medlin and hope the appellate judge considers the new dimensions of the modern workplace. The continued fight for respect in the workplace needs to extend into online spaces as the internet becomes increasingly integrated into our lives.  Women deserve safe working environments online and offline.

Further Reading:

https://www.forbes.com/sites/tedreed/2018/09/12/american-airlines-flight-attendants-will-appeal-case-of-alleged-facebook-sexual-harassment/#d9baa5e16f66

Rebecca A. is a Government Relations Intern at the National Organization for Women (NOW) Action Center in Washington, DC. She is a student at the George Washington University.

Family Law’s Alphabet Soup: To Spell It Out or Stick With Initials

Over the last several years it has been increasingly common for the captions of child custody cases when taken on appeal to be referred to by the initials of the parties, as opposed to using their full names. Contrary to what many assume, the trend to initialize is not due to some established procedural rule or directive from the Pennsylvania Supreme Court, but, rather, it is due to a provision in the Pennsylvania Superior Court’s internal operating procedures.

Although initialization has been the practice of the Superior Court for around 10 years at this point, many attorneys, especially those who are more senior in the practice, have not been supportive of initialization, as it makes it difficult to remember the names of the cases, and makes any discussion of case law rather difficult. Indeed, the term “alphabet soup” has been applied to this practice. Furthermore, some trial courts have adopted the practice of initializing independently, which has made referring to a custody order with a third party rather difficult. So, for example, when a party or child’s name is initialized in a custody court order, a third party (e.g., a school or a doctor) may not comply with its terms as it has no objective way of knowing whether the initials in the order actually refer to the party or child seeking its application at that doctor’s office or school.

In order to create a uniform practice and consistent direction about when and why to initialize, two revisions to the Pennsylvania Rules of Civil Procedure, R.C.P. 1915.10 and 1930.1 are currently bring proposed.

The revision to Rule 1915.10 definitively authorizes trial courts to initialize custody cases if the facts of the case are considered sufficiently “sensitive” in order to protect the privacy and reputation of the parties and children involved. As an additional layer of privacy protection, any initialized court order or opinion must also take steps to obscure the names of schools or activities and other specific references to things that could be used identify the child(ren) and parties in the case; instead, general terms should be used when possible. For example, instead of identifying a child’s soccer league, an order should simply state something like “soccer league,” and instead of using a child’s school’s name, it should merely refer to a “school.”

In addition to the above, the suggested revisions to Rule 1930.1 require the full names of the parties involved to be used in captions unless the case involves “sensitive facts” and with consideration of the child’s best interests or violates the above revisions to R.C.P. 1915.10 protecting the privacy of sensitive cases. It is in the estimation of the drafters of the revisions that the typical custody case does not involve such sensitive information, or shocking and outrageous facts, that would require taking the additional measure of initialization to protect the privacy of the children or parties involved.

So, family attorneys, particularly those who focus on custody law, need to monitor these developments to ensure they remain compliant with the rules and sufficiently respect the privacy of the parties and children involved in their custody cases.

Published on October 1, 2019 in The Legal Intelligencer and can be found here and reprinted in The Pennsylvania Family Lawyer in Volume 41, Issue No. 4 which you can see here.

Custody of Nonbiological Children—Burden and Proof Issues

In the matter of R.L. v. M.A., Case No.: 2740 EDA 2018, the Pennsylvania Superior Court delved into the leading edge of family law when it ruled upon whether an individual in a same-sex relationship can be awarded custody of a child with whom she has no biological relationship.

In R.L., the appellant, M.A., entered into a romantic relationship with R.L. (appellee) in 2012. During the relationship, the parties decided to impregnate the appellant via artificial insemination using sperm from the appellee’s brother.

The couple proceeded to prepare for the birth of the child by setting up the baby’s room and purchasing typical baby supplies. R.L. was present for the baby’s birth, chose the baby’s first name, and gave the baby her own surname. Not long after the child was born, the couple broke up.

Instead of litigating, the parties entered into an informal agreement for the custody of the child. The child lived primarily with the appellant and spent every other weekend with the appellee. This arrangement lasted until 2014 when the parties informally elected to equally share custody of the child. This 50/50 arrangement lasted nearly four years until R.L. called the daycare center where the appellant worked and which the child attended. R.L. complained that the appellant was having too much contact with the child while in daycare and even inappropriately (in her opinion) removed the child from the daycare premises.

In response to the above-mentioned telephone call, the appellant unilaterally discontinued their customary 50/50 arrangement, which led to R.L. filing a complaint for custody of the child. R.L. was granted in loco parentis over the child fairly quickly, which conferred R.L. standing to have custody of the child. The matter went to trial and the trial court entered an order granting each party equal custody, alternating on a weekly basis; the appellant appealed this order to Superior Court.

On appeal, the appellant argued that the appellee did not meet the burden of clear and convincing evidence that a nonparent should have custody equal to a parent, and that the court erred in weighing the evidence presented.

In support of her argument that appellee did not meet her burden of proof, the appellant argued that 23 Pa.C.S. Section 5327 requires a trial court to apply a presumption in favor of parents over nonparents, and, as a “nonparent,” the appellant did not meet her burden to overcome the presumption in favor of the appellee. The appellant also argued that the trial court erred in considering the parties’ informal shared custody arrangement when rending its decision.

In making its ruling, the Superior Court acknowledged that “even before the proceedings start, the evidentiary scale is tipped, and tipped hard, to the biological parents’ side.” In saying that, the Superior Court also recognized that this principle does “not preclude an award of custody to the nonparent.”

Additionally, the court made it clear that the “best interests” standard is still the touchstone when entering a child custody order. Furthermore, once someone is granted in loco parentis, she need not demonstrate that the other party is unfit, but rather merely demonstrate that it is in the best interests of the child (as proven by clear and convincing evidence) to be with the nonparent party.

The Superior Court ruled that the appellant did meet her burden of clear and convincing evidence, specifically by demonstrating that the parties lived out an agreed shared custody arrangement for a number of years, indeed most of the child’s life, and only discontinued that arrangement due to the appellee being upset over the appellant’s telephone call to the daycare center, as opposed to anything directly related to custody.

The Superior Court also indicated that the appellant’s interpretation of the law is incorrect. Namely, while the scales do tip heavily toward a parent over a nonparent, there is a distinction as to whether that nonparent is seeking shared, as opposed to primary, custody. As she was only seeking shared custody, the appellant only had the burden of clear and convincing evidence to bring the scales even with the appellee. Only if the appellant were seeking primary custody would she have to tip the scales hard toward herself under the burden of clear and convincing evidence.

Ultimately, a nonparent seeking shared custody of a child has to have standing and demonstrate by clear and convincing evidence that such a custody arrangement is in the best interest of a child.

This article was originally published in The Legal Intelligencer on June 27, 2019 and can be found here.

American Airlines Defeats Flight Attendant’s Suit Claiming Facebook Harassment

U.S. District Judge Eduardo C. Robreno of the Eastern District of Pennsylvania granted American’s motion for summary judgment on plaintiff Melissa Chinery’s claims.

According to Robreno’s opinion, Chinery ran for the presidency of the flight attendants’ association on the platform of rejecting a contract with American. She lost.

Fellow flight attendants Paul Sears, Jim Brown, Victor Dunson and Dan Datzer posted on a Facebook group called “Wingnuts” and Chinery alleged the posts amounted to sexual harassment.

‘“I just voted ‘NO’ to these clowns,’” Datzer wrote on the page, according to Robreno’s opinion. “’it’s your cunstitutional [sic] right to vote NO.’”

Dunson posted on Wingnuts, according to Robreno: “’this is war. Brian and [incumbent president] Kim [Kaswinkel] are my friends. If you f**k with my friends you f** with me and I don’t like being f**ked with.’”

Chinery took this as a form of sexual harassment, alleging that Dunson would not have said the same to a male candidate.

Chinery filed a claim with American’s human resources department and the U.S. Equal Employment Opportunity Commission but no action was taken. Later, Chinery was reported to have surreptitiously filmed American’s vendor and was called into a two-hour meeting by American to discuss the matter.

In order to prevail on disparate treatment, Robreno said Chinery would have to prove she belongs to a protected class; she was qualified for her position; she was subject to an adverse employment action; and members of the opposite sex were treated better or that there was an inference of discrimination. For the retaliation claim, Chinery had to show she was engaged in a protected activity and suffered an adverse employment action for it.

“Chinery argues that after she was anonymously accused of violating American policy, she was required to participate in an approximately two-hour meeting after which she was cleared of wrongdoing and not disciplined in any way,” Robreno said. “This event is not serious enough to alter the terms of Chinery’s employment, thus, it is not a qualifying adverse action.”

Robreno said Chinery’s hostile work environment claim also failed.

“While there are a number of serious questions that are raised by Chinery’s claims—including whether the alleged harassment over Facebook was due to her sex rather than her opinions regarding the union’s collective bargaining agreement with American, and whether the harassment actually occurred in the work environment—it is clear that the alleged instances of harassment were not so objectively severe or pervasive to give rise to a cause of action,” Robreno said.

Daniel Farrington represents American and did not respond to a request for comment.

David Koller represents Chinery and said, “We just received the decision and have not had a chance to go over it yet with our clients so cannot comment much on it.  We thought the situation presented an interesting and timely legal issue regarding social media policies in the workplace.  But more important than that, we are obviously disappointed for our clients.”

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